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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 29, 2023
Envoy Medical,
Inc.
(Exact name of registrant as specified in its
charter)
Delaware |
|
001-40133 |
|
86-1369123 |
(State or other jurisdiction
of incorporation) |
|
(Commission File
Number) |
|
(IRS Employer
Identification No.) |
4875 White Bear Parkway
White Bear Lake, MN |
|
55110 |
(Address of principal executive offices) |
|
(Zip Code) |
Registrant’s telephone number, including
area code: (877) 900-3277
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
|
Trading Symbols |
|
Name of each exchange on
which registered |
Class A Common Stock, par value $0.0001 per share |
|
COCH |
|
The Nasdaq Stock Market LLC |
Redeemable Warrants, each whole Warrant exercisable for one share of Class A Common Stock at an exercise price of $11.50 per share |
|
COCHW |
|
The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act.
Introductory Note
As used in this Current Report on Form 8-K (this
“Current Report”), unless otherwise stated or the context clearly indicates otherwise, the terms the “Company,”
“Registrant,” “we,” “us” and “our” refer to the entity formerly named Anzu Special Acquisition
Corp I, after giving effect to the Business Combination (as defined below), and as renamed Envoy Medical, Inc. Terms used in this Current
Report but not defined herein, or for which definitions are not otherwise incorporated by reference herein, shall have the meaning given
to such terms in the Proxy Statement/Prospectus (as defined below) and such definitions are incorporated herein by reference.
As previously announced, on September 29, 2023 (the “Closing
Date”), Envoy Medical, Inc. (formerly known as Anzu Special Acquisition Corp I) (prior to consummation of the Business Combination
(as defined below), “Anzu” and after consummation of the Business Combination, the “Company”) announced
that the business combination (the “Business Combination”) between Anzu and Envoy Medical Corporation (“Envoy”), a Minnesota corporation, was completed on September 29, 2023 pursuant to the Business Combination Agreement, dated
as of April 17, 2023 (as amended by Amendment No. 1, dated as of May 12, 2023, and Amendment No. 2, dated as of August 31, 2023) by and
among Anzu, Envoy and Envoy Merger Sub Inc., a Delaware corporation and wholly owned subsidiary of Anzu (the “Business
Combination Agreement”).
At the effective time of the Merger (the “Effective
Time”), in accordance with the terms and subject to the conditions of the Business Combination Agreement and as described in
the final prospectus and definitive proxy statement of Anzu, dated and filed with the U.S. Securities and Exchange Commission (the “SEC”)
on September 14, 2023 (the “Proxy Statement/Prospectus”), the following occurred:
| ● | each share of Envoy preferred stock, par value $0.01 per share, issued and
outstanding immediately prior to the Effective Time was converted into shares of Envoy’s common stock, par value $0.01 per
share (“Envoy Common Stock”); |
| ● | each share of Merger Sub’s common stock, par value $0.0001 per share, issued and outstanding immediately prior to the Effective
Time was converted into and exchanged for one share of Envoy Common Stock; |
| ● | each outstanding option to purchase shares of Envoy Common Stock outstanding as of immediately prior to the Effective Time
was cancelled in exchange for nominal consideration; |
| ● | each outstanding warrant to purchase shares of Envoy Common Stock outstanding as of immediately prior to the Effective Time
automatically, depending on the applicable exercise price, was cancelled or exercised on a net exercise basis and converted into shares
of Envoy Common Stock in accordance with its terms; |
| ● | each outstanding Envoy convertible promissory note was automatically converted into shares of Envoy Common Stock in
accordance with its terms; |
| ● | each share of Envoy Common Stock issued and outstanding immediately prior the Effective Time was cancelled and converted into
the right to receive a number of shares of the Company’s Class A common stock, par value $0.0001 per share (“New Envoy
Common Stock”), equal to the Exchange Ratio; |
| ● | the Sponsor forfeited 5,510,000 shares of Anzu’s Class B common stock, par value $0.0001 per share (“Anzu Class B Common
Stock”), and all 12,500,000 private placement warrants pursuant to the Sponsor Support Agreement; |
| ● | the Sponsor exchanged 2,500,000 shares of Anzu Class B Common Stock for 2,500,000 shares of the Company’s Series A preferred
stock, par value $0.0001 per share (“Series A Preferred Stock”) pursuant to the Sponsor Support Agreement; |
| ● | an aggregate of 2,615,000 shares of Anzu Class B Common Stock held by the Sponsor and Anzu’s former independent directors automatically
converted into an equal number of shares of New Envoy Common Stock; |
| ● | pursuant to the Legacy Forward Purchase Agreements and the Extension Support Agreements, the Sponsor transferred an aggregate of 490,000
shares of New Envoy Common Stock to the parties to the Legacy Forward Purchase Agreements and the Extension Support Agreements; and |
| ● | the Company issued an aggregate of 8,512 shares of New Envoy Common Stock as Share Consideration pursuant to the Forward Purchase
Agreement. |
The Exchange Ratio was calculated in accordance
with the Business Combination Agreement and represents the number of shares of New Envoy Common Stock which each share of Envoy Common Stock was converted into the right to receive pursuant to the applicable provisions of the Business Combination Agreement. The
Exchange Ratio was equal to 0.063603.
In addition, pursuant to the subscription agreement,
dated April 17, 2023 (as amended to date, the “Subscription Agreement”), by and between Anzu and Anzu SPAC GP I LLC
(the “Sponsor”), the Company issued, and certain affiliates of the Sponsor purchased, concurrently with the Closing,
an aggregate of 1,000,000 shares of Series A Preferred Stock in a private placement (the “PIPE Transaction”) at a price
of $10.00 per share for an aggregate purchase price of $10,000,000.
Pursuant to the convertible promissory note, dated
April 17, 2023, between Envoy and GAT Funding, LLC (as amended to date, the “Envoy Bridge Note”), the
Company issued 1,000,000 shares of Series A Preferred Stock to GAT Funding, LLC concurrently with the Closing.
As of the open of trading on October 2, 2023, the
New Envoy Common Stock and warrants of New Envoy began trading on the Nasdaq Capital Market (“Nasdaq”) under the symbols
“COCH” and “COCHW,” respectively. The Series A Preferred Stock is not publicly traded and the Company does not
intend to apply to list the Series A Preferred Stock on any securities exchange or nationally recognized trading system.
Item
1.01 Entry into a Material Definitive Agreement.
Indemnification Agreements
On September 29, 2023, in connection with the Closing
and as contemplated by the Business Combination Agreement, the Company entered into indemnification agreements with each of its directors
and executive officers. These indemnification agreements provide the directors and executive officers with contractual rights to indemnification
and advancement for certain expenses, including attorneys’ fees, judgments, fines and settlement amounts incurred by a director
or executive officer in any action or proceeding arising out of their services as one of the Company’s directors or executive officers
or as a director or executive officer of any other company or enterprise to which the person provides services at the Company’s
request.
The foregoing description of the indemnification
agreements is qualified in its entirety by the full text of the form of indemnification agreement, which is filed hereto as Exhibit 10.21
to this Current Report and is incorporated herein by reference.
Amended and Restated Registration Rights Agreement
On September 29, 2023, in connection with the Closing
and as contemplated by the Business Combination Agreement, Anzu, the Sponsor, certain shareholders of Envoy and certain other
stockholders of Anzu entered into the Amended and Restated Registration Rights and Lock-Up Agreement (the “Registration Rights
Agreement”). The material terms of the Registration Rights Agreement are described in the section “The Business Combination
Agreement — Related Agreements — Registration Rights Agreement” on page 150 of the Proxy Statement/Prospectus. Such
description is qualified in its entirety by the text of the Registration Rights Agreement, which is filed as Exhibit 10.3 to this Current
Report and is incorporated herein by reference.
Letter Agreement Amendment
On September 29, 2023, in connection with the Closing
and as contemplated by the Business Combination Agreement, Anzu, the Sponsor and Anzu’s officers and directors entered into an amendment
(the “Letter Agreement Amendment”) to the letter agreement dated March 1, 2021. The material terms of the Letter Agreement
Amendment are described in the section “The Business Combination Agreement — Related Agreements — Letter Agreement
Amendment” on page 155 of the Proxy Statement/Prospectus. Such description is qualified in its entirety by the text of the Letter
Agreement Amendment, which is filed as Exhibit 10.2 to this Current Report and is incorporated herein by reference.
Item
2.01 Completion of Acquisition or Disposition of Assets.
The information set forth in the “Introductory
Note” above is incorporated into this Item 2.01 by reference. On September 27, 2023, the Business Combination was approved by
the stockholders of Anzu at a special meeting of the stockholders (the “Special Meeting”).
Consideration Paid to Anzu’s Stockholders in the Business
Combination
In connection with the Business Combination, holders
of 2,386,294 shares of Anzu Class A Common Stock exercised their right to redeem those shares for cash at an approximate price of $10.46
per share, for an aggregate of approximately $25.0 million, which was paid to such holders on the Closing Date.
Upon completion of the Business Combination, the
Sponsor forfeited 8,010,000 shares of Anzu Class B Common Stock pursuant to the terms of the Sponsor Support Agreement, and the remaining
2,615,000 shares of Anzu Class B Common Stock held by the Sponsor and Anzu’s former independent directors converted into shares
of Class A Common Stock at the closing of the Business Combination. Following such conversion, the Sponsor transferred an aggregate of
490,000 shares of Class A Common Stock to the parties to the Legacy Forward Purchase Agreements and the Extension Support Agreements.
Separately, pursuant to the Sponsor Support Agreement, the Sponsor exchanged 2,500,000 of the Retained Sponsor Shares for shares of Series
A Preferred Stock in a private exchange offer.
Consideration Paid to Envoy’s Stockholders in the
Business Combination
The
consideration paid to shareholders of Envoy in connection with the Business Combination consisted of 14,999,990 shares of Class
A Common Stock. The information regarding the Envoy Bridge Note set forth in the “Introductory Note” above
is incorporated into this Item 2.01 by reference.
Company Securities Outstanding Following the Business Combination
Immediately after giving effect to the completion
of the Business Combination on September 29, 2023, there were outstanding:
| ● | 19,549,982 shares of New Envoy Common Stock; |
| | |
| ● | 4,500,000 shares of Series A Preferred Stock; and |
| | |
| ● | 14,166,666 warrants, each exercisable for one share of New Envoy Common Stock at a price of $11.50 per share. |
The material terms and conditions of the Business
Combination Agreement are described in the section “The Business Combination Agreement” beginning on page 137 of the
Proxy Statement/Prospectus, which are incorporated herein by reference.
FORM 10 INFORMATION
Item 2.01(f) of Form 8-K states that if the predecessor
registrant was a “shell company” (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”)), as the Company was immediately before the Business Combination, then the registrant must disclose
the information that would be required if the registrant were filing a general form for registration of securities on Form 10. As a result
of the consummation of the Business Combination, the Company has ceased to be a shell company. Accordingly, the Company is providing the
information below that would be included in a Form 10 if the Company were to file a Form 10. Please note that the information provided
below relates to the Company after the consummation of the Business Combination and the transactions contemplated by the Business Combination
Agreement, unless otherwise specifically indicated or the context otherwise requires.
Cautionary Note Regarding Forward Looking Statements
This Current
Report contains certain “forward-looking statements” within the meaning of the United States Private Securities Litigation
Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E
of the Exchange Act. All statements other than statements of historical fact contained in this Current Report, including statements as
to future results of operations and financial position, revenue and other metrics, products, business strategy and plans, objectives of
management for future operations of the Company, market size and growth, competitive position and technological and market trends, are
forward-looking statements. The words “anticipate,” “believe,” “continue,” “could,” “estimate,”
“expect,” “intends,” “may,” “might,” “plan,” “possible,” “potential,”
“predict,” “project,” “should,” “will,” “would” and similar expressions may
identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. All forward-looking
statements are subject to risks, uncertainties, and other factors which could cause actual results to differ materially from those expressed
or implied by such forward-looking statements. These risks and uncertainties include, but are not limited to:
| ● | The Company’s performance following the Business Combination; |
| ● | Changes in the market price of shares of New Envoy Common Stock after the Business Combination,
which may be affected by factors different from those that affected the price of shares of Anzu Class A Common Stock; |
| ● | Unpredictability in the medical device industry, the regulatory process to approve medical devices,
and the clinical development process of Envoy products; |
| ● | Competition in the medical device industry, and the failure to introduce new products and services
in a timely manner or at competitive prices to compete successfully against competitors; |
| ● | Disruptions in relationships with Envoy’s suppliers, or disruptions in Envoy’s
own production capabilities for some of the key components and materials of its products; |
| ● | Changes in the need for capital and the availability of financing and capital to fund these
needs; |
| ● | Envoy’s ability to realize some or all of the anticipated benefits of the Business
Combination; |
| ● | Changes in interest rates or rates of inflation; |
| ● | Legal, regulatory and other proceedings could be costly and time-consuming to defend; |
| ● | Changes in applicable laws or regulations, or the application thereof on Envoy; |
| ● | A loss of any of Envoy’s key intellectual property rights or failure to adequately
protect intellectual property rights; |
| ● | The Company’s ability to maintain the listing of its securities on Nasdaq following the
Business Combination; |
| ● | The effects of catastrophic events, including war, terrorism and other international conflicts;
and |
| ● | Other risks and uncertainties indicated in the Proxy Statement/Prospectus, including those set
forth under the section entitled “Risk Factors.” |
Should one or more of these risks or uncertainties
materialize, or should any of the underlying assumptions prove incorrect, actual results may vary in material respects from those expressed
or implied by these forward-looking statements. Nothing in this Current Report should be regarded
as a representation by any person that the forward-looking statements set forth herein will be achieved or that any of the contemplated
results of such forward-looking statements will be achieved. You should not place undue reliance on these forward-looking
statements. The Company does not give any assurance that it will achieve its expected results and does not undertake any duty to update
these forward-looking statements, except as required by law.
Business and Facilities
Reference is made to the disclosure contained in
the Proxy Statement/Prospectus in the sections entitled “Information About Envoy” beginning on page 188, which is incorporated
herein by reference.
The Company’s
investor relations website is located at https://investors.envoymedical.com/. The Company uses its investor relations website to
post important information for investors, including news releases, analyst presentations, and supplemental financial information, and
as a means of disclosing material non-public information and for complying with its disclosure obligations under Regulation
FD. Accordingly, investors should monitor the Company’s investor relations website, in addition to following press releases, SEC
filings and public conference calls and webcasts. The Company also makes available, free of charge, on its investor relations website
under “SEC Filings,” its Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports
on Form 8-K and amendments to these reports as soon as reasonably practicable after electronically filing or furnishing
those reports to the SEC.
Risk Factors
Reference is made to the disclosure contained in
the Proxy Statement/Prospectus in the section entitled “Risk Factors” beginning on page 21, which is incorporated herein
by reference.
Selected Consolidated Historical Financial and Other Information
Reference is made to the disclosure set forth in
Item 9.01(a) of this Current Report concerning the financial information of Anzu and Envoy.
Unaudited Pro Forma Condensed Combined Financial Information
The information set forth in Exhibit 99.1 to this
Current Report, which includes the unaudited pro forma condensed combined financial information of the Company and Envoy is incorporated
herein by reference.
Management’s Discussion and Analysis of Financial Condition
and Results of Operations and Quantitative and Qualitative Disclosure about Market Risk
Reference is made to the disclosure contained in
the Proxy Statement/Prospectus in the section entitled “Management’s Discussion and Analysis of Financial Condition and
Results of Operations of Envoy Medical Corporation” beginning on page 212, which is incorporated herein by reference.
Securities Ownership of Certain Beneficial Owners and Management
The following table sets forth information known
by the Company regarding the beneficial ownership of New Envoy Common Stock immediately following the Closing, by:
| ● | each person or “group” who is known by the Company to be the beneficial owner of more than 5% of the issued and outstanding
shares of New Envoy Common Stock; |
| ● | each of the Company’s named executive officers and directors; and |
| ● | all current executive officers and directors, as a group. |
Beneficial ownership is determined according to
the rules of the SEC, which generally provide that a person has beneficial ownership of a security if he, she or it possesses sole or
shared voting or investment power over that security, including options and warrants that are currently exercisable or exercisable within
60 days.
The information below is based on an aggregate
of 19,549,982 shares of New Envoy Common Stock issued and outstanding as of the Closing Date and does not reflect any possible redemptions
from funds which acquired New Envoy Common Stock in the public markets and have not yet filed a corresponding Schedule 13G reflecting
a change in ownership. In addition, the information below includes shares of New Envoy Common Stock issuable upon conversion of Series
A Preferred Stock pursuant to the terms of the Certificate of Designation. Such shares are deemed outstanding for computing the percentage
of the person holding such shares, but are not deemed outstanding for computing the percentage of any other person. Unless otherwise indicated,
the Company believes that all persons named in the table below have sole voting and investment power with respect to the voting securities
beneficially owned by them.
| |
New
Envoy Common Stock(2) | |
Name of Beneficial Owner(1) | |
Number of Shares Beneficially Owned | | |
Percentage of Shares Beneficially Owned | |
Five percent holders: | |
| | |
| |
Anzu SPAC GP I LLC(3) | |
| 5,043,478 | | |
| 22.3 | % |
Named Executive Officers and Directors: | |
| | | |
| | |
Brent Lucas(4) | |
| 118,958 | | |
| * | |
David R. Wells | |
| — | | |
| — | |
Charles Brynelsen | |
| — | | |
| — | |
Whitney Haring-Smith(5) | |
| — | | |
| — | |
Susan J. Kantor | |
| 25,000 | | |
| * | |
Mona Patel | |
| — | | |
| — | |
Janis Smith-Gomez | |
| — | | |
| — | |
Glen A. Taylor(6) | |
| 11,159,614 | | |
| 54.7 | % |
All current directors and executive officers as a group (8 persons) | |
| 11,303,572 | | |
| 55.4 | % |
* |
Represents beneficial ownership of less than 1%. |
| (1) | Unless otherwise noted, the business address of each of the beneficial owners is c/o Envoy Medical, Inc., 4875 White Bear Pkwy, White
Bear Lake, MN 55110. |
| (2) | Includes shares of New Envoy Common Stock issuable upon conversion of Series A Preferred Stock pursuant to the terms of the Certificate
of Designation. Such shares are deemed outstanding for computing the percentage of the person holding such shares, but are not deemed
outstanding for computing the percentage of any other person. Shares of Series A Preferred Stock may be converted into shares of New Envoy
Common Stock based on a conversion price of $11.50 per share, subject to certain customary adjustments in the event of certain events
affecting the price of New Envoy Common Stock. Upon conversion, each share of Series A Preferred Stock will convert into a number of shares
of New Envoy Common Stock equal to the quotient of (a) the Original Issuance Price divided by (b) the Conversion Price as of the Conversion
Date. See the section in the Proxy Statement/Prospectus entitled “Description of New Envoy Securities — Preferred Stock
— Holder Conversion Rights” beginning on page 258. |
| (3) | Includes (i) 2,000,000 shares of New Envoy Common Stock held by the Sponsor directly upon the Closing Date (1,000,000 of such shares
remain unvested and subject to forfeiture and will vest upon the FDA approval of the Acclaim or upon a change of control of New Envoy),
(ii) 2,173,913 shares of New Envoy Common Stock issuable upon the conversion of 2,500,000 shares of Series A Preferred Stock received
by the Sponsor in a private exchange offer for 2,500,000 shares of Anzu Class B Common Stock and (iii) 869,565 shares of New Envoy Common
Stock issuable upon the conversion of 1,000,000 shares of Series A Preferred Stock issued to affiliates of the Sponsor pursuant to the
Subscription Agreement. Whitney Haring-Smith, David Seldin and David Michael share voting and investment control over shares held by the
Sponsor by virtue of their shared control of the Sponsor. The business address of the Sponsor is 12610 Race Track Road, Suite 250 Tampa,
FL 33626. |
| (4) | Includes (i) 108,451 shares of New Envoy Common Stock held directly by Mr. Lucas, (ii) 1,972 shares of New Envoy Common Stock held
by Mr. Lucas’s spouse, (iii) 5,991 shares of New Envoy Common Stock held by the Brent T. Lucas Irrevocable Trust of which Mr. Lucas
is a beneficiary and (iv) 2,544 shares of New Envoy Common Stock held by the Brent T. Lucas Family Education Trust of which Mr. Lucas’
children are beneficiaries and Mr. Lucas is a trustee. |
| (5) | Includes (i) 2,953,607 shares of New Envoy Common Stock held by Mr. Taylor directly, (ii) 2,526,058 shares of New Envoy Common Stock
held by Taylor Sports Group of which Mr. Taylor is the owner and chairman, (iii) 4,810,384 shares of New Envoy Common Stock held by GAT
Funding, LLC, which Mr. Taylor controls and (iv) 869,565 shares of New Envoy Common Stock issuable upon the conversion of 1,000,000 shares
of Series A Preferred Stock issued to GAT Funding, LLC pursuant to the Envoy Medical Bridge Note. |
Directors and Executive Officers
Reference is made to the disclosure contained in
the Proxy Statement/Prospectus in the section entitled “Executive Officers and Directors After the Business Combination“
beginning on page 225, which information is incorporated herein by reference.
Director Independence
Reference is made to the disclosure contained in
the Proxy Statement/Prospectus in the section entitled “Executive Officers and Directors After the Business Combination —
Director Independence” beginning on page 229, which information is incorporated herein by reference.
Committees of the Board of
Directors
Reference is made to the disclosure contained in
the Proxy Statement/Prospectus in the section entitled “Executive Officers and Directors After the Business Combination — Committees
of the New Envoy Board” beginning on page 230, which information is incorporated herein by reference.
Executive Compensation
Reference
is made to the disclosure contained in the Proxy Statement/Prospectus in the section entitled “Executive and Director Compensation”
beginning on page 233, which information is incorporated herein by reference.
Certain Relationships and
Related Party Transactions
Reference
is made to the disclosure contained in the Proxy Statement/Prospectus in the section entitled “Certain Relationships and Related
Party Transactions” beginning on page 240, which information is incorporated herein by reference. The disclosure set forth in
the Introductory Note and Item 1.01 of this Current Report under the sections entitled “Amended and Restated Registration Rights
and Lock-Up Agreement” and “Letter Agreement Amendment” is incorporated herein by reference.
Legal Proceedings
Reference
is made to the disclosure contained in the Proxy Statement/Prospectus in the section entitled “Information About Envoy —
Legal Proceedings” beginning on page 211, which information is incorporated herein by reference.
Market Price of and Dividends
on the Registrant’s Common Equity and Related Stockholder Matters
Reference
is made to the disclosure contained in the Proxy Statement/Prospectus in the sections entitled “Market Price and Dividend Information”
beginning on page 19 and “Description of New Envoy Securities” beginning on page 257, which information is incorporated
herein by reference.
As of the open of trading
on October 2, 2023, the New Envoy Common Stock and warrants began trading on Nasdaq under the symbols “COCH” and “COCHW,”
respectively. The Series A Preferred Stock is not publicly traded and the Company does not intend to apply to list the Series A Preferred
Stock on any securities exchange or nationally recognized trading system, including Nasdaq. On the Closing Date, Anzu’s outstanding
units separated into their component parts and ceased trading on Nasdaq.
As of the Closing Date,
there were 19,549,982 shares of New Envoy Common Stock issued and outstanding held of record by approximately 563 holders (excluding
DTC participants or beneficial owners holding shares through nominee names), 4,500,000 shares of Series A Preferred Stock issued and outstanding
held of record by four holders and 14,166,666 warrants issued and outstanding, each exercisable for one share of New Envoy Common Stock,
at a price of $11.50 per share.
Description of Registrant’s Securities
Reference
is made to the disclosure contained in the Proxy Statement/Prospectus in the section entitled “Description of New Envoy Securities”
beginning on page 257, which information is incorporated herein by reference.
Indemnification of Directors
and Officers
Reference
is made to the disclosure contained in the Proxy Statement/Prospectus in the section entitled “Executive Officers and Directors
After the Business Combination — Limitation of Liability and Indemnification of Directors and Officers” beginning on page
232, which information is incorporated herein by reference. The disclosure set forth in Item 1.01 of this Current Report under the
section entitled “Indemnification Agreements” is incorporated herein by reference.
Financial Statements and Supplementary
Data
The information set forth
below in Item 9.01 of this Current Report is incorporated herein by reference.
Item
3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
On the Closing Date, all of Anzu’s outstanding
units separated into their component parts of one share of Anzu Class A Common Stock and one warrant to purchase one share of Anzu Class
A Common Stock and Anzu’s units ceased trading on Nasdaq.
Item
3.02 Unregistered Sales of Equity Securities.
On September 29, 2023, in connection with the completion
of the Business Combination and as contemplated by the Business Combination Agreement, Subscription Agreement, Sponsor Support Agreement,
Envoy Bridge Note and Forward Purchase Agreement, the Company made the following issuances of unregistered securities, as further
described in the disclosure set forth in the Introductory Note above:
| ● | 8,512 shares of New Envoy Common Stock to the Seller pursuant to the Forward Purchase Agreement; |
| ● | 1,000,000 shares of Series A Preferred Stock to the Sponsor and certain of its affiliates for aggregate consideration of $10,000,000; |
| ● | 2,500,000 shares of Series A Preferred Stock to the Sponsor in exchange for 2,500,000 shares of Anzu Class B Common Stock, pursuant
to the Sponsor Support Agreement; and |
| ● | 1,000,000 shares of Series A Preferred Stock to the holder of the Envoy Bridge Note for aggregate consideration of $10,000,000. |
The Company issued the foregoing securities in
transactions not involving an underwriter and not requiring registration under Section 5 of the Securities Act of 1933, as amended, in
reliance on the exemption afforded by Section 4(a)(2) thereof or Regulation D promulgated under the Securities Act.
Item
3.03 Material Modification to Rights of Security Holders.
At the Special Meeting, Anzu’s stockholders
considered and approved, among other things, the proposals set forth in the Proxy Statement/Prospectus in the sections entitled “Proposal
No. 2 — The Charter Proposal” beginning on page 94, and “Proposal No. 3 — Advisory Charter
Proposals” beginning on page 96 (together with Proposal No. 2, the “Charter Proposals”), and that information
is incorporated herein by reference.
On the Closing Date, in connection with the consummation
of the Business Combination, the Company adopted the Second Amended and Restated Certificate of Incorporation (as amended and restated,
the “Charter”) and amended and restated bylaws (as amended and restated, the “Bylaws”). The Charter
became effective upon filing with the Secretary of State of the State of Delaware on September 29, 2023 and includes the amendments proposed
by the Charter Proposals.
On the Closing Date, in connection with the consummation
of the Business Combination, the Company filed a certificate of designation relating to the Series A Preferred Stock (the “Certificate
of Designation”). The Certificate of Designation became effective upon filing with the Secretary of State of the State of Delaware
on September 29, 2023.
Pursuant to the Charter and Certificate of Designation,
there are 400,000,000 shares of New Envoy Common Stock and 100,000,000 shares of preferred stock authorized, of which 10,000,000 are designated
as Series A Preferred Stock. The disclosure set forth in the section entitled “Description of New Envoy Securities”
beginning on page 257 of the Proxy Statement/Prospectus is incorporated herein by reference.
The foregoing description of the Charter, Bylaws
and Certificate of Designation do not purport to be complete and are qualified in their entirety by the terms of the Charter, Bylaws and
Certificate of Designation, which are filed hereto as Exhibits 3.1, 3.2 and 3.3, respectively, to this Current Report and are incorporated
herein by reference.
Item
5.01 Changes in Control of the Registrant.
The information
set forth in the sections entitled “Proposal No. 1 — The Business Combination Proposal” beginning on page
93 of the Proxy Statement/Prospectus, “The Business Combination Agreement” beginning on page 137 of the Proxy Statement/Prospectus,
under “Introductory Note” and under Item 2.01 in this Current Report is incorporated herein by reference.
Item
5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers.
Election of Directors and
Appointment of Officers
On the Closing
Date, each of Brent Lucas, Charles Brynelsen, Whitney Haring-Smith, Susan J. Kantor, Mona Patel, Janis Smith-Gomez and Glen A. Taylor
were elected as directors of the Company, with Charles Brynelsen appointed as chairman of the board of directors (the “Board”),
and Brent Lucas was appointed to serve as the Chief Executive Officer and David R. Wells was appointed to serve as the Chief Financial
Officer, in each case, effective upon the completion of the Business Combination. Biographical information with respect to such individuals
is set forth in the section entitled “Executive Officers and Directors After the Business Combination” beginning on
page 225 of the Proxy Statement/Prospectus and is incorporated herein by reference.
Departure of Directors and
Certain Officers
Effective
upon the Closing Date, each of Diane Dewbrey, Daniel Hirsch and Priya Cherian Huskins resigned as directors of Anzu, and Charles Brynelsen
replaced Whitney Haring-Smith as chairman of the Board, although Dr. Haring-Smith will continue as a director of the Company. Effective
upon the Closing Date, each of Whitney Haring-Smith and Daniel Hirsch resigned as executive officers of Anzu.
Envoy Medical, Inc. Equity
Incentive Plan
At the Special
Meeting, Anzu’s stockholders considered and approved the Envoy Medical, Inc. 2023 Equity Incentive Plan (the “Incentive
Plan”). The Incentive Plan had been previously approved, subject to stockholder approval, by the Board on April 17, 2023. The
Incentive Plan became effective as of the Closing Date.
The information
set forth in the section entitled “Proposal No. 6 — The New Envoy Incentive Plan Proposal”
beginning on page 105 of the Proxy Statement/Prospectus is incorporated herein by reference. The foregoing description of the Incentive
Plan and the information incorporated by reference in the preceding sentence does not purport to be complete and is qualified in its entirety
by the terms and conditions of the Incentive Plan, which is filed as Exhibit 10.22 to this Current Report and is incorporated herein by
reference.
Envoy Medical, Inc. Employee
Stock Purchase Plan
At the Special
Meeting, Anzu’s stockholders considered and approved the Envoy Medical, Inc. 2023 Employee Stock Purchase Plan (the “ESPP”).
The ESPP had been previously approved, subject to stockholder approval, by the Board on April 17, 2023. The ESPP became effective as of
the Closing Date.
The information
set forth in the section entitled “Proposal No. 7 — 2023 New Envoy Employee Stock Purchase Plan Proposal”
beginning on page 113 of the Proxy Statement/Prospectus is incorporated herein by reference. The foregoing description of the ESPP and
the information incorporated by reference in the preceding sentence does not purport to be complete and is qualified in its entirety by
the terms and conditions of the ESPP, which is filed as Exhibit 10.23 to this Current Report and is incorporated herein by reference.
Compensatory Arrangements for Directors and Executive Officers
The information
set forth in the sections entitled “Executive Officers and Directors After the Business Combination — Director Compensation”
on page 231 of the Proxy Statement/Prospectus and “Executive and Director Compensation” beginning on page 233 of the
Proxy Statement/Prospectus is incorporated herein by reference.
Item
5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The information
set forth in Item 3.03 of this Current Report is incorporated herein by reference.
Item
5.06 Change in Shell Company Status.
As a result of the Business Combination, the Company
ceased being a shell company. The material terms of the Business Combination are described in the section entitled “The Business
Combination Agreement” beginning on page 137 of the Proxy Statement/Prospectus, in the information set forth under “Introductory
Note and in the information set forth under Item 2.01 in this Current Report, each of which is incorporated herein by reference.
Item
9.01 Financial Statement and Exhibits.
(a) Financial Statements of Businesses Acquired.
The financial statements of Envoy as of
and for the years ended December 31, 2022 and 2021, the related notes and report of independent registered public accounting firm thereto
are set forth in the Proxy Statement/Prospectus beginning on page F-77 and are incorporated herein by reference. The unaudited financial
statements of Envoy as of and for the six months ended June 30, 2023 and the related notes thereto are set forth in the Proxy
Statement/Prospectus beginning on page F-59 and are incorporated herein by reference.
(b) Pro Forma Financial Information.
The information
set forth in Exhibit 99.1 to this Current Report, which includes the unaudited pro forma condensed combined financial information
of the Company as of June 30, 2023 and for the year ended December 31, 2022 and the six months ended June 30, 2023 is incorporated herein
by reference.
(d) Exhibits.
Exhibit
No. |
|
Description |
|
|
2.1† |
|
Business Combination Agreement, dated as of April 17, 2023, by and among the Company, Merger Sub and Envoy (incorporated by reference to Exhibit 2.1 to Anzu’s Current Report on Form 8-K, filed on April 18, 2023). |
|
|
2.2 |
|
Amendment No. 1 to the Business Combination Agreement, dated May 12, 2023, by and among the Company, Merger Sub and Envoy (incorporated by reference to Exhibit 2.2 to Anzu’s Registration Statement on Form S-4, filed on May 15, 2023). |
|
|
2.3 |
|
Amendment No. 2 to the Business Combination Agreement, dated August 31, 2023, by and among Anzu, Merger Sub and Envoy (incorporated by reference to Exhibit 2.3 to Anzu’s Registration Statement on Form S-4/A, filed on September 1, 2023).
|
|
|
|
3.1* |
|
Second Amended and Restated Certificate of Incorporation of the Company. |
|
|
3.2* |
|
Amended and Restated Bylaws of the Company.
|
|
|
|
3.3* |
|
Certificate of Designation of Series A Preferred Stock of the Company.
|
|
|
|
4.1 |
|
Warrant Agreement, dated March 1, 2021, between Anzu and American Stock Transfer & Trust Company, LLC, as warrant agent (incorporated by reference to Exhibit 10.1 to Anzu’s Current Report on Form 8-K, filed on March 4, 2021). |
|
|
10.1 |
|
Letter Agreement, dated March 1, 2021, among Anzu, the Sponsor and Anzu’s officers and directors (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed on March 4, 2021).
|
|
|
|
10.2* |
|
Amendment to Letter Agreement, dated September 29, 2023, by and among Anzu, the Sponsor and Anzu’s officers and directors.
|
|
|
|
10.3* |
|
Amended and Restated Registration Rights Agreement, dated September 29, 2023, by and among Anzu Special Acquisition Corp I, Anzu SPAC GP I LLC and certain stockholders. |
|
|
|
10.4 |
|
Subscription Agreement, dated as of April 17, 2023 (incorporated by reference to Exhibit 10.1 to Anzu’s Current Report on Form 8-K filed on April 18, 2023).
|
|
|
|
10.5 |
|
Amendment No. 1 to the Subscription Agreement, dated May 12, 2023, by and among Anzu Special Acquisition Corp I and Anzu SPAC GP I LLC (incorporated by reference to Exhibit 10.14 to Anzu’s Registration Statement on Form S-4, filed on May 12, 2023).
|
|
|
|
10.6 |
|
Sponsor Support and Forfeiture Agreement, dated as of April 17, 2023 (incorporated by reference to Exhibit 10.2 to Anzu’s Current Report on Form 8-K filed on April 18, 2023).
|
|
|
|
10.7 |
|
Form of Shareholder Support Agreement, dated as of April 17, 2023 (incorporated by reference to Exhibit 10.3 to Anzu’s Current Report on Form 8-K filed on April 18, 2023).
|
|
|
|
10.8 |
|
Forward Purchase Agreement, dated as of April 17, 2023 (incorporated by reference to Exhibit 10.4 to Anzu’s Current Report on Form 8-K filed on April 18, 2023).
|
|
|
|
10.9 |
|
Convertible Promissory Note, dated April 17, 2023, by and between Envoy Medical Corporation and GAT Funding, LLC (incorporated by reference to Exhibit 10.19 to Anzu’s Registration Statement on Form S-4/A, filed on June 30, 2023).
|
10.10 |
|
Fourth Amended and Restated Promissory Note, dated July 15, 2022, by and between Envoy Medical Corporation and GAT Funding, LLC (incorporated by reference to Exhibit 10.20 to Anzu’s Registration Statement on Form S-4/A, filed on June 30, 2023).
|
|
|
|
10.11 |
|
Third Amended and Restated Credit Agreement, dated July 15, 2022, by and between Envoy Medical Corporation and GAT Funding, LLC (incorporated by reference to Exhibit 10.21 to Anzu’s Registration Statement on Form S-4/A, filed on June 30, 2023).
|
|
|
|
10.12 |
|
Third Amended and Restated Convertible Promissory Note, dated May 31, 2019, by and between Envoy Medical Corporation and Allen Lenzmeier Revocable Trust (incorporated by reference to Exhibit 10.22 to Anzu’s Registration Statement on Form S-4/A, filed on June 30, 2023).
|
|
|
|
10.13 |
|
Third Amended and Restated Convertible Promissory Note, dated May 31, 2019, by and between Envoy Medical Corporation and CBR Holdings, LLC (incorporated by reference to Exhibit 10.23 to Anzu’s Registration Statement on Form S-4/A, filed on June 30, 2023).
|
|
|
|
10.14 |
|
Convertible Note Amendment Agreement, dated April 17, 2023, by and between Envoy Medical Corporation and GAT Funding, LLC (incorporated by reference to Exhibit 10.24 to Anzu’s Registration Statement on Form S-4/A, filed on June 30, 2023).
|
|
|
|
10.15 |
|
Convertible Note Amendment Agreement, dated April 17, 2023, by and between Envoy Medical Corporation and Allen Lenzmeier Revocable Trust (incorporated by reference to Exhibit 10.25 to Anzu’s Registration Statement on Form S-4/A, filed on June 30, 2023).
|
|
|
|
10.16 |
|
Convertible Note Amendment Agreement, dated April 17, 2023, by and between Envoy Medical Corporation and CBR Holdings, LLC (incorporated by reference to Exhibit 10.26 to Anzu’s Registration Statement on Form S-4/A, filed on June 30, 2023).
|
|
|
|
10.17 |
|
Amendment No. 1 to Forward Purchase Agreement, dated as of May 25, 2023 (incorporated by reference to Exhibit 10.27 to Anzu’s Registration Statement on Form S-4/A, filed on June 30, 2023).
|
|
|
|
10.18 |
|
Amendment No. 2 to the Subscription Agreement, dated August 23, 2023, by and among Anzu Special Acquisition Corp I and Anzu SPAC GP I LLC (incorporated by reference to Exhibit 10.28 to Anzu’s Registration Statement on Form S-4/A, filed on September 12, 2023).
|
|
|
|
10.19 |
|
Amendment No. 1 to Convertible Promissory Note, dated August 23, 2023, by and between Envoy Medical Corporation and GAT Funding, LLC (incorporated by reference to Exhibit 10.29 to Anzu’s Registration Statement on Form S-4/A, filed on September 1, 2023).
|
|
|
|
10.20 |
|
Amendment No. 1 to Sponsor Support and Forfeiture Agreement, dated August 31, 2023 (incorporated by reference to Exhibit 10.30 to Anzu’s Registration Statement on Form S-4/A, filed on September 1, 2023).
|
|
|
|
10.21* |
|
Form of Envoy Medical, Inc. Indemnification Agreement.
|
|
|
|
10.22*# |
|
Envoy Medical, Inc. Equity Incentive Plan.
|
|
|
|
10.23*# |
|
Envoy Medical, Inc. Employee Stock Purchase Plan.
|
|
|
|
10.24* |
|
Amendment No. 2 to Forward Purchase Agreement, dated as of September 28, 2023.
|
|
|
|
21.1* |
|
List of subsidiaries.
|
|
|
|
99.1* |
|
Unaudited pro forma condensed combined financial information of the Company as of June 30, 2023 and for the year ended December 31, 2022 and for the six months ended June 30, 2023. |
|
|
|
104 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
† | Certain schedules and exhibits to this Exhibit have been omitted
pursuant to Item 601(a)(5) or Item 601(b)(10)(iv), as applicable, of Regulation S-K. The Registrant agrees to furnish supplemental copies
of all omitted exhibits and schedules to the Securities and Exchange Commission upon its request. |
* | Filed or furnished herewith. |
# | Indicates management contract or compensatory plan or arrangement. |
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: October 5, 2023
|
Envoy Medical, Inc. |
|
|
|
By: |
/s/ Brent Lucas |
|
|
Brent Lucas
Chief Executive Officer |
14
Exhibit 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ANZU SPECIAL ACQUISITION CORP I
a Delaware corporation
Anzu Special Acquisition Corp I., a Delaware corporation (the “Company”),
hereby certifies that:
| 1. | The Company was incorporated under the name “Anzu Special Acquisition Corp I” The original Certificate of Incorporation
of the Company was filed with the Secretary of State of the State of Delaware on December 28, 2020. |
| 2. | The Certificate of Incorporation of the Company was amended and restated by an Amended and Restated Certificate of Incorporation filed
March 3, 2021. |
| 3. | The Second Amended and Restated Certificate of Incorporation of the Company attached hereto as Exhibit A, which is incorporated
herein by this reference, and which restates, integrates and further amends the provisions of the Amended and Restated Certificate of
Incorporation of this Company as heretofore amended and restated, has been duly adopted by the Company’s Board of Directors and
by the stockholders in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware. |
| 4. | This Amended and Restated Certificate of Incorporation of the Company shall be effective when filed. |
IN WITNESS WHEREOF, the Company has caused this
Amended and Restated Certificate of Incorporation to be signed by its duly authorized officer on September 29, 2023 and the foregoing
facts stated herein are true and correct.
|
Anzu Special Acquisition Corp I |
|
|
|
By: |
/s/ Dr. Whitney Haring-Smith |
|
Name: |
Dr. Whitney Haring-Smith |
|
Title: |
Chief Executive Officer |
EXHIBIT A
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ANZU SPECIAL ACQUISITION CORP I
a Delaware corporation
ARTICLE I
The name of the corporation is Envoy Medical, Inc. (the “Company”).
ARTICLE II
The address of the Corporation’s registered
office in the State of Delaware is 800 North State Street Suite 304, in the City of Dover, County of Kent, State of Delaware, 19901, and
the name of the Corporation’s registered agent at such address is United Corporate Services, Inc.
ARTICLE III
The nature of the business or purposes to be conducted
or promoted by the Company is to engage in any lawful act or activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the “DGCL”).
ARTICLE IV
Section 1. This Company is authorized to
issue two classes of stock, to be designated, respectively, Class A Common Stock and Preferred Stock. The total number of shares of stock
that the Company shall have authority to issue is 500,000,000 shares, of which 400,000,000 shares are Class A Common Stock, $0.0001 par
value per share, and 100,000,000 shares are Preferred Stock, $0.0001 par value per share.
Immediately upon the effectiveness of the filing
of this Second Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware (the “Effective
Time”), and without any further action of the Corporation or any stockholder of the Corporation, each share of the series of
common stock of the Corporation designated “Class A Common Stock”, par value $0.0001 per share (“Former Class A Common
Stock”) and each share of the series of common stock of the Corporation designated as “Class B Common Stock”, par
value $0.0001 per share (“Former Class B Common Stock”), that is issued and outstanding immediately prior to the Effective
Time shall be automatically reclassified and converted into one (1) share of the class of Class A Common Stock. Each stock certificate
or book-entry position that, immediately prior to the Effective Time, represented shares of Former Class A Common Stock or Former Class
B Common Stock shall, from and after the Effective Time, automatically and without the necessity of presenting the same for the exchange,
represent that number of shares of Class A Common Stock into which the shares formerly represented by such certificate or book-entry position
have been automatically reclassified and converted pursuant to this Article IV.
Section 2. Each share of Class A Common Stock
outstanding as of the applicable record date shall entitle the holder thereof to one (1) vote on any matter submitted to a vote at a meeting
of stockholders.
Section 3. The Preferred Stock may be issued
from time to time in one or more series pursuant to a resolution or resolutions providing for such issue duly adopted by the Board of
Directors of the Company (the “Board of Directors”) (authority to do so being hereby expressly vested in the Board
of Directors). The Board of Directors is further authorized, subject to limitations prescribed by law, to fix by resolution or resolutions
the designations, powers, preferences and rights, and the qualifications, limitations or restrictions thereof, of any series of Preferred
Stock, including, without limitation, authority to fix by resolution or resolutions the dividend rights, dividend rate, conversion rights,
voting rights, rights and terms of redemption (including sinking fund provisions), redemption price or prices, and liquidation preferences
of any such series, and the number of shares constituting any such series and the designation thereof, or any of the foregoing. The Board
of Directors is further authorized to increase (but not above the total number of authorized shares of the class) or decrease (but not
below the number of shares of any such series then outstanding) the number of shares of any series, subject to the powers, preferences
and rights, and the qualifications, limitations and restrictions thereof stated in this Second Amended and Restated Certificate of Incorporation
or the resolution of the Board of Directors originally fixing the number of shares of such series. Except as may be otherwise specified
by the terms of any series of Preferred Stock, if the number of shares of any series of Preferred Stock is so decreased, then the Company
shall take all such steps as are necessary to cause the shares constituting such decrease to resume the status which they had prior to
the adoption of the resolution originally fixing the number of shares of such series.
Section 4. Except as otherwise required by
law or provided in this Second Amended and Restated Certificate of Incorporation, holders of Class A Common Stock shall not be entitled
to vote on any amendment to this Second Amended and Restated Certificate of Incorporation (including any certificate of designation filed
with respect to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if
the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such
series, to vote thereon by law or pursuant to this Second Amended and Restated Certificate of Incorporation (including any certificate
of designation filed with respect to any series of Preferred Stock).
Section 5. The number of authorized shares
of Preferred Stock or Class A Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding)
by the affirmative vote of the holders of a majority of the voting power of all the then-outstanding shares of capital stock of the Company
entitled to vote thereon, without a separate vote of the holders of the class or classes the number of authorized shares of which are
being increased or decreased, unless a vote of any holders of one or more series of Preferred Stock is required pursuant to the terms
of any certificate of designation relating to any series of Preferred Stock, irrespective of the provisions of Section 242(b)(2) of the
DGCL.
ARTICLE V
Section 1. Subject to the rights of holders
of Preferred Stock, the number of directors that constitutes the entire Board of Directors of the Company shall be fixed only by resolution
of the Board of Directors acting pursuant to a resolution adopted by a majority of the Whole Board. For the purposes of this Second Amended
and Restated Certificate of Incorporation, the term “Whole Board” shall mean the total number of authorized directorships
whether or not there exist any vacancies or other unfilled seats in previously authorized directorships. At each annual meeting of stockholders,
directors of the Company shall be elected to hold office until the expiration of the term for which they are elected and until their successors
have been duly elected and qualified or until their earlier resignation or removal; except that if any such meeting shall not be so held,
such election shall take place at a stockholders’ meeting called and held in accordance with the DGCL.
Section 2. From and after the effectiveness
of this Second Amended and Restated Certificate of Incorporation, the directors of the Company (other than any who may be elected by holders
of Preferred Stock under specified circumstances) shall be divided into three classes as nearly equal in size as is practicable, hereby
designated Class I, Class II and Class III. Directors already in office shall be assigned to each class at the time such classification
becomes effective in accordance with a resolution or resolutions adopted by the Board of Directors or the incorporator of the Company.
At the first annual meeting of stockholders following the date hereof, the term of office of the Class I directors shall expire and Class
I directors shall be elected for a full term of three years. At the second annual meeting of stockholders following the date hereof, the
term of office of the Class II directors shall expire and Class II directors shall be elected for a full term of three years. At the third
annual meeting of stockholders following the date hereof, the term of office of the Class III directors shall expire and Class III directors
shall be elected for a full term of three years. At each succeeding annual meeting of stockholders, directors shall be elected for a full
term of three years to succeed the directors of the class whose terms expire at such annual meeting. If the number of directors is changed,
any newly created directorships or decrease in directorships shall be so apportioned hereafter among the classes as to make all classes
as nearly equal in number as is practicable, provided that no decrease in the number of directors constituting the Board of Directors
shall shorten the term of any incumbent director.
ARTICLE VI
Section 1. From and after the effectiveness
of this Second Amended and Restated Certificate of Incorporation, only for so long as the Board of Directors is classified and subject
to the rights of holders of Preferred Stock, any director or the entire Board of Directors may be removed from office at any time, but
only for cause, and only by the affirmative vote of the holders of at least a majority of the voting power of the issued and outstanding
capital stock of the Company entitled to vote in the election of directors.
Section 2. Except as otherwise provided for
or fixed by or pursuant to the provisions of ARTICLE IV hereof in relation to the rights of the holders of Preferred Stock to elect directors
under specified circumstances or except as otherwise provided by resolution of a majority of the Whole Board, newly created directorships
resulting from any increase in the number of directors, created in accordance with the Bylaws of the Company, and any vacancies on the
Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled only by the affirmative
vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors, or by a sole remaining
director, and not by the stockholders. A person so elected by the Board of Directors to fill a vacancy or newly created directorship shall
hold office until the next election of the class for which such director shall have been chosen until his or her successor shall have
been duly elected and qualified, or until such director’s earlier death, resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent director.
ARTICLE VII
Section 1. The Company is to have perpetual
existence.
Section 2. The business and affairs of the
Company shall be managed by or under the direction of the Board of Directors. In addition to the powers and authority expressly conferred
upon them by statute or by this Second Amended and Restated Certificate of Incorporation or the Bylaws of the Company, the directors are
hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Company.
Section 3. In furtherance and not in limitation
of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, alter, amend or repeal the Bylaws of the
Company. The affirmative vote of at least a majority of the Whole Board shall be required in order for the Board of Directors to adopt,
amend, alter or repeal the Company’s Bylaws. The Company’s Bylaws may also be adopted, amended, altered or repealed by the
stockholders of the Company. Notwithstanding the above or any other provision of this Second Amended and Restated Certificate of Incorporation,
the Bylaws of the Company may not be amended, altered or repealed by the stockholders of the Company except in accordance with the provisions
of the Bylaws relating to amendments to the Bylaws. No Bylaw hereafter legally adopted, amended, altered or repealed shall invalidate
any prior act of the directors or officers of the Company that would have been valid if such Bylaw had not been adopted, amended, altered
or repealed.
Section 4. The election of directors need
not be by written ballot unless the Bylaws of the Company shall so provide.
Section 5. No stockholder will be permitted
to cumulate votes at any election of directors.
ARTICLE VIII
Section 1. Subject to the rights of holders
of Preferred Stock, any action required or permitted to be taken by the stockholders of the Company must be effected at a duly called
annual or special meeting of stockholders of the Company and may not be effected by any consent in writing by such stockholders.
Section 2. Subject to the terms of any series
of Preferred Stock, special meetings of stockholders of the Company may be called only by the Chairperson of the Board of Directors, the
Chief Executive Officer, the President or the Board of Directors acting pursuant to a resolution adopted by a majority of the Whole Board,
but a special meeting may not be called by any other person or persons and any power of stockholders to call a special meeting of stockholders
is specifically denied. Only such business shall be considered at a special meeting of stockholders as shall have been stated in the notice
for such meeting.
Section 3. Advance notice of stockholder
nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the
Company shall be given in the manner and to the extent provided in the Bylaws of the Company.
ARTICLE IX
Section 1. To the fullest extent permitted
by the DGCL as the same exists or as may hereafter be amended from time to time, a director or officer of the Company shall not be personally
liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, as applicable. If
the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then
the liability of a director or officer of the Company shall be eliminated or limited to the fullest extent permitted by the DGCL, as so
amended.
Section 2. Subject to any provisions in the
Bylaws of the Company related to indemnification of directors of the Company, the Company shall indemnify, to the fullest extent permitted
by applicable law, any director of the Company who was or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”) by
reason of the fact that he or she is or was a director of the Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect
to employee benefit plans, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such person in connection with any such Proceeding. The Company shall be required to indemnify a person in
connection with a Proceeding (or part thereof) initiated by such person only if the Proceeding (or part thereof) was authorized by the
Board of Directors.
Section 3. The Company shall have the power
to indemnify, to the extent permitted by applicable law, any officer, employee or agent of the Company who was or is a party or is threatened
to be made a party to any Proceeding by reason of the fact that he or she is or was a director, officer, employee or agent of the Company
or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding.
Section 4. Neither any amendment, elimination
nor repeal of any Section of this ARTICLE IX, nor the adoption of any provision of this Second Amended and Restated Certificate of Incorporation
or the Bylaws of the Company inconsistent with this ARTICLE IX, shall eliminate or reduce the effect of this ARTICLE IX in respect of
any matter occurring, or any Proceeding accruing or arising or that, but for this ARTICLE IX, would accrue or arise, prior to such amendment,
elimination, repeal or adoption of an inconsistent provision.
ARTICLE X
Section 1. Meetings of stockholders may be
held within or outside of the State of Delaware, as the Bylaws may provide. The books of the Company may be kept (subject to any provision
of applicable law) outside of the State of Delaware at such place or places or in such manner or manners as may be designated from time
to time by the Board of Directors or in the Bylaws of the Company.
Section 2. Unless the Company consents in
writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if such court does not have jurisdiction,
another State court in Delaware or the federal district court for the District of Delaware) shall, to the fullest extent permitted by
law, be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Company, (b) any action asserting
a claim of breach of a fiduciary duty owed by any director, stockholder, officer or other employee of the Company to the Company or the
Company’s stockholders, (c) any action asserting a claim against the Company, its directors, officers or employees arising pursuant
to any provision of the DGCL or the Bylaws of the Company or this Second Amended and Restated Certificate of Incorporation (as either
may be amended from time to time), and (d) any action asserting a claim against the Company, its directors, officers or employees governed
by the internal affairs doctrine, except for, as to each of (a) through (d) above, any claim as to which such court determines that there
is an indispensable party not subject to the jurisdiction of such court (and the indispensable party does not consent to the personal
jurisdiction of such court within 10 days following such determination), which is vested in the exclusive jurisdiction of a court or forum
other than such court, or for which such court does not have subject matter jurisdiction.
Unless the Company consents in writing to the selection
of an alternative forum, the federal district courts of the United States of America shall be the sole and exclusive forum for the resolution
of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended, against any person in connection with
any offering of the Company’s securities, including, without limitation and for the avoidance of doubt, any auditor, underwriter,
expert, control person or other defendant.
Any person or entity purchasing, holding or otherwise
acquiring any interest in any security of the Company shall be deemed to have notice of and consented to the provisions of this ARTICLE
X. This provision shall be enforceable by any party to a complaint covered by the provisions of this ARTICLE X. For the avoidance of doubt,
nothing contained in this ARTICLE X shall apply to any action brought to enforce a duty or liability created by the Securities Exchange
Act of 1934, as amended, or any successor thereto.
ARTICLE XI
The Company reserves the right to amend or repeal
any provision contained in this Second Amended and Restated Certificate of Incorporation in the manner prescribed by the laws of the State
of Delaware and all rights conferred upon stockholders are granted subject to this reservation; provided, however, that notwithstanding
any other provision of this Second Amended and Restated Certificate of Incorporation or any provision of law that might otherwise permit
a lesser vote, the Board of Directors acting pursuant to a resolution adopted by a majority of the Whole Board and the affirmative vote
of 66 2/3% of the voting power of the then outstanding voting securities of the Company, voting together as a single class, shall be required
for the amendment, repeal or modification of the provisions of Section 3 of ARTICLE IV, Section 2 of ARTICLE V, Section 1 of ARTICLE VI,
Section 2 of ARTICLE VI, Section 5 of ARTICLE VII, Section 1 of ARTICLE VIII, Section 2 of ARTICLE VIII, Section 3 of ARTICLE VIII or
this ARTICLE XI of this Second Amended and Restated Certificate of Incorporation.
*      *      *      *      *
Exhibit 3.2
AMENDED AND RESTATED
BY LAWS
OF
Envoy Medical, Inc.
(THE “CORPORATION”)
ARTICLE
I
OFFICES
Section 1.1 Registered
Office. The registered office of the Corporation within the State of Delaware shall be located at either (a) the principal place of
business of the Corporation in the State of Delaware or (b) the office of the corporation or individual acting as the Corporation’s
registered agent in Delaware.
Section 1.2 Additional
Offices. The Corporation may, in addition to its registered office in the State of Delaware, have such other offices and places of
business, both within and outside the State of Delaware, as the Board of Directors of the Corporation (the “Board”)
may from time to time determine or as the business and affairs of the Corporation may require.
ARTICLE
II
STOCKHOLDERS MEETINGS
Section 2.1 Annual
Meetings. The annual meeting of stockholders shall be held at such place, either within or without the State of Delaware and time
and on such date as shall be determined by the Board and stated in the notice of the meeting, provided that the Board may in its sole
discretion determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication
pursuant to Section 9.5(a). At each annual meeting, the stockholders entitled to vote on such matters shall elect those directors
of the Corporation to fill any term of a directorship that expires on the date of such annual meeting and may transact any other business
as may properly be brought before the meeting.
Section 2.2 Special
Meetings.
(a) General. Subject
to the rights of the holders of any outstanding series of the preferred stock of the Corporation (“Preferred
Stock”), and to the requirements of applicable law, special meetings of stockholders, for any purpose or purposes, may
be called by the Chairman of the Board, Chief Executive Officer, the Board pursuant to a resolution adopted by a majority of the
Board, or, subject to Section 2.2(b), the Board at the written request in proper form to the Secretary of the Corporation
(the “Secretary”) of the record holders of not less than fifty percent (50%) of the voting power of the
issued and outstanding common stock of the Corporation (the “Requisite Percentage”). To
be in proper form, such request (each, a “Special Meeting Request”) must be signed by each stockholder
requesting a special meeting (or their duly authorized agents), state the specific purpose(s) of the proposed meeting and the
matters to be acted on at the meeting and include all information that would be required to be delivered pursuant to Section
2.7. In determining whether a special meeting of stockholders has been requested by stockholders representing in the aggregate
at least the Requisite Percentage, multiple Special Meeting Requests delivered to the Secretary will be considered together only if
(i) each Special Meeting Request identifies substantially the same purpose(s) of the special meeting and substantially the same
matters proposed to be acted on at the special meeting (in each case as determined in good faith by the Board) and (ii) such Special
Meeting Requests have been dated and delivered to the Secretary within sixty (60) days of the earliest dated Special Meeting
Request. A stockholder may revoke a Special Meeting Request at any time by written revocation delivered to the Secretary. The
Corporation’s notice of special meeting shall state the purpose(s) of such meeting, and no business shall be transacted at
such special meeting except as stated in the notice of meeting thereof. Business transacted at any stockholder-requested special
meeting shall be limited to the purpose(s) stated in the Special Meeting Request; provided, however, that nothing herein shall
prohibit the Board from including additional matters in (or in accordance with) the Corporation’s notice of meeting or
otherwise submitting matters to the stockholders at any stockholder-requested special meeting.
(b) Stockholder
Requested Special Meetings. Except as provided in the next sentence, a special meeting requested by stockholders shall be held
at such place, either within or without the State of Delaware, and at such time and on such date as shall be determined by the
Board; provided that the Board may in its sole discretion determine that the meeting shall not be held at any place, but may instead
be held solely by means of remote communication pursuant to Section 9.5(a); provided, further, that the date of any such
special meeting shall not be more than ninety (90) days after the receipt by the Secretary of a Special Meeting Request in proper
form to call a special meeting. A special meeting requested by stockholders shall not be held if (i) the Special Meeting Request
relates to an item of business that is not a proper subject for stockholder action under applicable law, (ii) the Special Meeting
Request is delivered during the period commencing ninety (90) days prior to the first anniversary of the date of the notice of
annual meeting of stockholders for the immediately preceding annual meeting of stockholders and ending on the earlier of (x) the
date of the next annual meeting of stockholders and (y) thirty (30) calendar days after the first anniversary of the date of the
immediately preceding annual meeting of stockholders, (iii) an identical or substantially similar item (as determined in good faith
by the Board, a “Similar Item”) other than the election of directors, was presented at a meeting of
stockholders held not more than twelve (12) months before the Special Meeting Request is delivered, (iv) a Similar Item was
presented at a meeting of the stockholders held not more than ninety (90) days before the Special Meeting Request is delivered (and,
for purposes of this clause (iv), the election of directors shall be deemed a “Similar Item” with respect to all items
of business involving the election or removal of directors), or (v) a Similar Item is included in the Corporation’s notice of
the meeting as an item of business to be brought before a stockholder meeting that has been called by the time the Special Meeting
Request is delivered but not yet held. For purposes of this Section 2.2(b), the date of delivery of the Special Meeting
Request shall be the first date on which valid Special Meeting Requests constituting not less than the Requisite Percentage have
been received by the Secretary.
Section 2.3 Notices.
Written notice of each stockholders meeting stating the place, if any, date, and time of the meeting, and the means of remote communication,
if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting and the record date for
determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders
entitled to notice of the meeting, shall be given in the manner permitted by Section 9.3 to each stockholder entitled to vote thereat
as of the record date for determining the stockholders entitled to notice of the meeting, by the Corporation not less than 10 nor more
than 60 days before the date of the meeting unless otherwise required by the General Corporation Law of the State of Delaware (the “DGCL”).
If said notice is for a stockholder meeting other than an annual meeting, it shall in addition state the purpose or purposes for which
the meeting is called, and the business transacted at such meeting shall be limited to the matters so stated in the Corporation’s
notice of meeting (or any supplement thereto). Any meeting of stockholders as to which notice has been given may be postponed, and any
meeting of stockholders as to which notice has been given may be cancelled, by the Board upon public announcement (as defined in Section
2.7(c)) given before the date previously scheduled for such meeting.
Section 2.4 Quorum.
Except as otherwise provided by applicable law, the Corporation’s Second Amended and Restated Certificate of Incorporation, as the
same may be amended or restated from time to time (the “Amended and Restated Certificate of Incorporation”)
or these By Laws, the presence, in person or by proxy, at a stockholders meeting of the holders of shares of outstanding capital stock
of the Corporation representing a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled
to vote at such meeting shall constitute a quorum for the transaction of business at such meeting, except that when specified business
is to be voted on by a class or series of stock voting as a class, the holders of shares representing a majority of the voting power of
the outstanding shares of such class or series shall constitute a quorum of such class or series for the transaction of such business.
If a quorum shall not be present or represented by proxy at any meeting of the stockholders of the Corporation, the chairman of the meeting
may adjourn the meeting from time to time in the manner provided in Section 2.6 until a quorum shall attend. The stockholders present
at a duly convened meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders
to leave less than a quorum. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the voting
power of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation,
shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right
of the Corporation or any such other corporation to vote shares held by it in a fiduciary capacity.
Section 2.5 Voting
of Shares.
(a) Voting Lists.
The Secretary or such other officer as determined by the Board, shall prepare, or shall cause the officer or agent who has charge of
the stock ledger of the Corporation to prepare and make, at least 10 days before every meeting of stockholders, a complete list of
the stockholders of record entitled to vote at such meeting; provided, however, that if the record date for determining the
stockholders entitled to vote is less than 10 days before the meeting date, the list shall reflect the stockholders entitled to vote
as of the tenth day before the meeting date, arranged in alphabetical order and showing the address and the number and class of
shares registered in the name of each stockholder. Nothing contained in this Section 2.5(a) shall require the Corporation to
include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination
of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to
the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list
is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the
Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may
take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be
held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and
may be inspected by any stockholder who is present. If a meeting of stockholders is to be held solely by means of remote
communication as permitted by Section 9.5(a), the list shall be open to the examination of any stockholder during the whole
time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be
provided with the notice of meeting. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine
the list required by this Section 2.5(a) or to vote in person or by proxy at any meeting of stockholders.
(b) Manner of
Voting. At any stockholders meeting, every stockholder entitled to vote may vote in person or by proxy. If authorized by the
Board, the voting by stockholders or proxy holders at any meeting conducted by remote communication may be effected by a ballot
submitted by electronic transmission (as defined in Section 9.3), provided that any such electronic transmission must either
set forth or be submitted with information from which the Corporation can determine that the electronic transmission was authorized
by the stockholder or proxy holder. The Board, in its discretion, or the chairman of the meeting of stockholders, in such
person’s discretion, may require that any votes cast at such meeting shall be cast by written ballot.
(c) Proxies.
Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without
a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer period. Proxies need not be filed with the Secretary until the
meeting is called to order, but shall be filed with the Secretary before being voted. Without limiting the manner in which a stockholder
may authorize another person or persons to act for such stockholder as proxy, either of the following shall constitute a valid means by
which a stockholder may grant such authority. No stockholder shall have cumulative voting rights.
(i) A
stockholder may execute a writing authorizing another person or persons to act for such stockholder as proxy. Execution may be accomplished
by the stockholder or such stockholder’s authorized officer, director, employee or agent signing such writing or causing such person’s
signature to be affixed to such writing by any reasonable means, including, but not limited to, by facsimile signature.
(ii) A
stockholder may authorize another person or persons to act for such stockholder as proxy by transmitting or authorizing the transmission
of an electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that
any such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic
transmission was authorized by the stockholder. Any copy, facsimile telecommunication or other reliable reproduction of the writing or
transmission authorizing another person or persons to act as proxy for a stockholder may be substituted or used in lieu of the original
writing or transmission for any and all purposes for which the original writing or transmission could be used; provided that such
copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.
(d) Required
Vote. Subject to the rights of the holders of one or more series of Preferred Stock, voting separately by class or series, to elect
directors pursuant to the terms of one or more series of Preferred Stock, at all meetings of stockholders at which a quorum is present,
the election of directors shall be determined by a plurality of the votes cast by the stockholders present in person or represented by
proxy at the meeting and entitled to vote thereon. All other matters presented to the stockholders at a meeting at which a quorum is present
shall be determined by the vote of a majority of the votes cast by the stockholders present in person or represented by proxy at the meeting
and entitled to vote thereon, unless the matter is one upon which, by applicable law, the Amended and Restated Certificate of Incorporation,
these By Laws or applicable stock exchange rules, a different vote is required, in which case such provision shall govern and control
the decision of such matter.
(e) Inspectors
of Election. The Board may, and shall if required by law, in advance of any meeting of stockholders, designate one or more persons
as inspectors of election, who may be employees of the Corporation or otherwise serve the Corporation in other capacities, to act at such
meeting of stockholders or any adjournment thereof and to make a written report thereof. The Board may appoint one or more persons as
alternate inspectors to replace any inspector who fails to act. If no inspectors of election or alternates are appointed by the Board,
the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her
duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of
his or her ability. The inspectors shall ascertain and report the number of outstanding shares and the voting power of each; determine
the number of shares present in person or represented by proxy at the meeting and the validity of proxies and ballots; count all
votes and ballots and report the results; determine and retain for a reasonable period a record of the disposition of any challenges
made to any determination by the inspectors; and certify their determination of the number of shares represented at the meeting and
their count of all votes and ballots. No person who is a candidate for an office at an election may serve as an inspector at such election.
Each report of an inspector shall be in writing and signed by the inspector or by a majority of them if there is more than one inspector
acting at such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors.
Section 2.6 Adjournments.
Any meeting of stockholders, annual or special, may be adjourned by the chairman of the meeting, from time to time, whether or not there
is a quorum, to reconvene at the same or some other place. Notice need not be given of any such adjourned meeting if the date, time, and
place, if any, thereof, and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present
in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting
the stockholders, or the holders of any class or series of stock entitled to vote separately as a class, as the case may be, may transact
any business that might have been transacted at the original meeting. If the adjournment is for more than 30 days, notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for stockholders
entitled to vote is fixed for the adjourned meeting, the Board shall fix a new record date for notice of such adjourned meeting in accordance
with Section 9.2, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned
meeting as of the record date fixed for notice of such adjourned meeting.
Section 2.7 Advance
Notice for Nomination of Directors and Other Stockholder Business.
(a) Timely
Notice. At a meeting of the stockholders, only such nominations of persons for the election of directors and such other business shall
be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting of stockholders,
nominations or such other business must be: (i) specified in the Corporation’s notice of meeting (or any supplement thereto) given
by or at the direction of the Board, (ii) otherwise properly brought before the annual meeting by or at the direction of the Board or
(iii) otherwise properly brought before the annual meeting by any stockholder of the Corporation who (x) is a stockholder of record entitled
to vote at such annual meeting on the date of the giving of the notice provided for in this Section 2.7(a) and on the record date
for the determination of stockholders entitled to vote at such annual meeting, and (y) complies with the notice procedures and disclosure
requirements set forth in this Section 2.7. The foregoing clause (iii) shall be the exclusive means for a stockholder to make any
nomination of person(s) for election to the Board or to propose business to be brought before a meeting of the stockholders. For business
(including, but not limited to, director nominations) to be properly brought before an annual meeting by a stockholder, the stockholder
or stockholders of record intending to propose the business (the “Proposing Stockholder”) must have given timely
notice thereof in proper written form to the Secretary pursuant to this Section 2.7 and such business must otherwise be a proper
matter for stockholder action. Subject to Section 2.7, a Proposing Stockholder’s notice to the Secretary, to be timely, must
be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the 90th day
nor earlier than the opening of business on the 120th day before the anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a date that is more than 30 days before or more than 70 days
after such anniversary date, or if no annual meeting was held in the preceding year, notice by the stockholder to be timely must be so
received not earlier than the opening of business on the 120th day before the meeting and not later than the later of (x) the close of
business on the 90th day before the meeting or (y) the close of business on the 10th day following the day on which public announcement
of the date of the annual meeting is first made by the Corporation. The public announcement of an adjournment of an annual meeting shall
not commence a new time period for the giving of a stockholder’s notice as described in this Section 2.7(a).
(b) Stockholder
Nominations. For the nomination of any person(s) for election to the Board whether at an annual meeting or a properly called special
meeting of stockholders, a Proposing Stockholder’s notice to the Secretary shall set forth (i) the name, age, business address and
residence address of each nominee proposed in such notice, (ii) the principal occupation or employment of each such nominee, (iii) (A)
the number of shares of capital stock of the Corporation which are owned of record and beneficially by each such nominee and any affiliates
or associates of such nominee (if any) and (B) a description of any agreement, arrangement or understanding of the type described in clause
(viii)(C) or (viii)(D) of this section, but as it relates to each such nominee rather than the Proposing Stockholder, (iv) (A) if any
such nominee is a party to any compensatory, reimbursement, indemnification, payment or other agreement, arrangement or understanding
with any person or entity other than the Corporation, or has received any compensation, reimbursement, indemnification or other payment
from any person or entity other than the Corporation, in each case in connection with candidacy or service as a director of the Corporation,
a detailed description of such agreement, arrangement or understanding and its terms or of any such compensation received and (B) such
other information concerning each such nominee as would be required to be disclosed in a proxy statement soliciting proxies for the election
of such nominee as a director in an election contest (even if an election contest is not involved) or that is otherwise required to be
disclosed, under Section 14(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the
rules and regulations promulgated thereunder, (v) the consent of the nominee to being named in the proxy statement as a nominee and to
serving as a director if elected and a representation by the nominee to the effect that, if elected, the nominee will agree to and abide
by all policies of the Board (including corporate governance guidelines) and, to the extent applicable to directors, all policies and
ethics codes of the Corporation, in each case, as may be in place at any time and from time to time, (vi) that the nominee is not and
will not become a party to any agreement, arrangement, or understanding with, and has not given any commitment or assurance to, any person
or entity as to who such nominee, if elected as a director of the Corporation, will act or vote on any issue or question (a “Voting
Commitment”) that has not been disclosed to the Corporation, or any Voting Commitment that could limit or interfere with
such nominee’s ability to comply, if elected as a director of the Corporation, with such person’s fiduciary duties under applicable
law, (vii) a representation that the nominee will, upon request of the Corporation, participate in one or more interviews with one or
more directors within 10 calendar days after being requested to do so, and will upon request by the Corporation provide additional information,
including by completing and signing a questionnaire, including any supplemental questionnaires, as may reasonably be requested by the
Corporation, in each case within 10 calendar days after being requested to do so, and (viii) as to the Proposing Stockholder: (A) the
name and address of the Proposing Stockholder as they appear on the Corporation’s books and of the beneficial owner, if any, on
whose behalf the nomination is being made, (B) the class and number of shares of the Corporation which are owned by the Proposing Stockholder
(beneficially and of record) and owned by the beneficial owner, if any, on whose behalf the nomination is being made, as of the date of
the Proposing Stockholder’s notice, (C) a description of any agreement, arrangement or understanding with respect to such nomination
between or among the Proposing Stockholder and any of its affiliates or associates, and any others (including their names) acting in concert
with any of the foregoing, (D) a description of any agreement, arrangement or understanding (including any derivative or short positions,
profit interests, options, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of the Proposing
Stockholder’s notice by, or on behalf of, the Proposing Stockholder or any of its affiliates or associates, the effect or intent
of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of the Proposing
Stockholder or any of its affiliates or associates with respect to shares of stock of the Corporation, (E) a representation that the Proposing
Stockholder is a holder of record of shares of the Corporation entitled to vote at the meeting and intends to appear in person or by proxy
at the meeting to nominate the person or persons specified in the notice, (F) a representation whether the Proposing Stockholder intends
to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital
stock required to approve the election of the nominee and/or otherwise to solicit proxies from stockholders in support of such election,
(G) in the event the Proposing Stockholder or any of its affiliates or associates intends to solicit proxies in support of nominees other
than the Corporation’s nominees, a statement that the Proposing Stockholder intends to solicit the holders of at least sixty-seven
percent (67%) of the Corporation’s outstanding capital stock entitled to vote on the election of directors in support of nominees
other than the Corporation’s nominees, (H) a representation whether the Proposing Stockholder intends to solicit proxies or votes
in support of the nominee in accordance with Rule 14a-19 promulgated under the Exchange Act, and (I) with respect to (B), (C) and (D)
above, a representation that the Proposing Stockholder will promptly notify the Corporation in writing of the same as of the record date
for the meeting within five days following the later of the record date or the date of the first public announcement of the record date.
In addition, any nominee shall complete a questionnaire, in a form provided by the Corporation, within 10 calendar days of receipt of
the form of questionnaire from the Corporation. The Corporation may require any proposed nominee to furnish such other information as
it may reasonably require to determine the eligibility and/or qualification of such proposed nominee to serve as an independent director
of the Corporation or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, or
qualification, of such nominee. The Proposing Stockholder giving such notice shall indemnify the Corporation in respect of any loss arising
as a result of any false or misleading information or statement submitted by the Proposing Stockholder in connection with the nomination,
as provided by Section 112(5) of the DGCL.
(c) Other
Stockholder Proposals. To be in proper written form, a Proposing Stockholder’s notice to the Secretary with respect to any business
(other than nominations) must set forth as to each such matter the Proposing Stockholder proposes to bring before the annual meeting or
properly called special meeting: (i) a brief description of the business desired to be brought before the meeting, (ii) the text of the
proposal or business (including the text of any resolutions proposed for consideration and in the event such business includes a proposal
to amend these By Laws, the language of the proposed amendment) and the reasons for conducting such business at the meeting, (iii) any
other information relating to such stockholder and beneficial owner, if any, on whose behalf the proposal is being made, required to be
disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for the proposal and pursuant
to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder, (iv) a description of
all agreements, arrangements, or understandings between or among such Proposing Stockholder, or any affiliates or associates of such Proposing
Stockholder, and any other person or persons (including their names) in connection with the proposal of such business and any material
interest of such Proposing Stockholder or any affiliates or associates of such Proposing Stockholder, in such business, including any
anticipated benefit therefrom to such Proposing Stockholder, or any affiliates or associates of such Proposing Stockholder and (v) the
information required by Section 2.7(b)(viii) above.
(d) Proxy
Rules. The foregoing notice requirements of Section 2.7(c) shall be deemed satisfied by a stockholder as to any proposal (other
than nominations) if the stockholder has notified the Corporation of such stockholder’s intention to present such proposal at an
annual meeting in compliance with Rule 14a-8 (or any successor thereof) of the Exchange Act, and such stockholder has complied with the
requirements of such rule for inclusion of such proposal in a proxy statement prepared by the Corporation to solicit proxies for such
annual meeting. Notwithstanding the provisions of this Section 2.7, unless otherwise required by law, (i) no Proposing Stockholder
giving notice shall solicit proxies in support of director nominees other than the Corporation’s nominees unless such Proposing
Stockholder has complied with Rule 14a-19 promulgated under the Exchange Act and (ii) if any Proposing Stockholder giving notice (1) provides
notice pursuant to Rule 14a-19(b) promulgated under the Exchange Act and (2) subsequently fails to comply with the requirements of Rule
14a-19(a)(2) and Rule 14a-19(a)(3) promulgated under the Exchange Act, then the Corporation shall disregard any proxies or votes solicited
for any persons nominated by such Proposing Stockholder. Upon request by the Corporation, if any Proposing Stockholder provides notice
pursuant to Rule 14a-19(b) promulgated under the Exchange Act, such Proposing Stockholder shall deliver to the Corporation, no later than
five (5) business days prior to the applicable meeting, reasonable evidence that it has met the requirements of Rule 14a-19(a)(3) promulgated
under the Exchange Act.
(f) Effect
of Noncompliance. Notwithstanding anything in these By Laws to the contrary: (i) no nominations shall be made or business shall be
conducted at any annual meeting or special meeting except in accordance with the procedures set forth in this Section 2.7, (ii)
if the Board or the chairman of the annual meeting or special meeting determines that any stockholder proposal or nomination was not made
in accordance with the provisions of this Section 2.7 or that the information provided in a stockholder’s notice does not
satisfy the information requirements of this Section 2.7, such proposal or nomination shall not be presented for action at such
annual meeting or special meeting, and (iii) unless otherwise required by law, if a Proposing Stockholder intending to propose business
or make nominations at an annual meeting or special meeting pursuant to this Section 2.7 does not provide the information required
under this Section 2.7 to the Corporation in accordance with the applicable timing requirements set forth in these By Laws, or
the Proposing Stockholder (or a qualified representative of the Proposing Stockholder) does not appear at the meeting to present the proposed
business or nominations, such business or nominations shall not be transacted, notwithstanding that proxies in respect of such business
or nominations may have been received by the Corporation. In addition to the provisions of this Section 2.7, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters
set forth herein. Nothing in this Section 2.7 shall be deemed to affect any rights of stockholders to request inclusion of proposals
in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
(g) Special
Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting either (i) by or at
the direction of the Board or stockholders pursuant to Section 2.2; or (ii) provided that the Board or stockholders pursuant to
Section 2.2 have determined that directors shall be elected at such meeting, by any stockholder of the Corporation who (x) is a
stockholder of record entitled to vote at the time of giving of notice provided for in this Section 2.7 and at the time of the
special meeting, and (y) complies with the notice procedures and disclosure requirements set forth in this Section 2.7 as to such
nomination. If the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board,
any such stockholder entitled to vote in such election of directors may nominate person(s) for election to such position(s) as specified
in the Corporation’s notice of meeting, if the stockholder’s notice required by this Section 2.7 shall be delivered
to the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth (10th) day following
the day on which notice of the date of the special meeting was mailed or public announcement of the date of the special meeting was made,
whichever first occurs. The public announcement of an adjournment of an annual meeting shall not commence a new time period for the giving
of a stockholder’s notice.
(h) Public
Announcement. For purposes of these By Laws, “public announcement” shall mean disclosure in a press release reported by
the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act (or any successor thereto).
Section 2.8 Conduct
of Meetings. The chairman of each annual and special meeting of stockholders shall be the Chairman of the Board or, in the absence
(or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) or, in the
absence (or inability or refusal to act of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President
(if he or she shall be a director) or, in the absence (or inability or refusal to act) of the President or if the President is not a director,
such other person as shall be appointed by the Board. The date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote at a meeting shall be announced at the meeting by the chairman of the meeting. The Board may adopt such
rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with
these By Laws or such rules and regulations as adopted by the Board, the chairman of any meeting of stockholders shall have the right
and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted
by the Board or prescribed by the chairman of the meeting, may include, without limitation, the following: (a) the establishment of an
agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those
present; (c) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly
authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (d) restrictions on entry
to the meeting after the time fixed for the commencement thereof; and (e) limitations on the time allotted to questions or comments
by participants. Unless and to the extent determined by the Board or the chairman of the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary procedure. The secretary of each annual and special meeting of stockholders
shall be the Secretary or, in the absence (or inability or refusal to act) of the Secretary, an Assistant Secretary so appointed to act
by the chairman of the meeting. In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
Section 2.9 Stockholder
Action Without Meeting. Except as otherwise provided for in the Amended and Restated Certificate of Incorporation, any action required
or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, if a consent or consents, setting
forth the action so taken, are signed by the holders of all outstanding shares of capital stock of the Corporation that at the date of
the resolution would be entitled to attend the meeting and vote on such resolution.
ARTICLE
III
DIRECTORS
Section 3.1 Powers.
The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all such powers
of the Corporation and do all such lawful acts and things as are not by statute or by the Amended and Restated Certificate of Incorporation
or by these By Laws required to be exercised or done by the stockholders. Directors need not be stockholders or residents of the State
of Delaware.
Section 3.2 Number
of Directors. Subject to the Amended and Restated Certificate of Incorporation, the total number of directors constituting the Board
shall be determined from time to time by resolution of the Board. No reduction of authorized number of directors shall have the effect
of removing any director before the director’s term of office expires.
Section 3.3 Election,
Qualification and Term of Office of Directors. Except as provided in Section 3.4, each director, including a director elected
to fill a vacancy or newly created directorship, shall hold office until the expiration of the term of the class, if any, for which elected
and until such director’s successor is elected and qualified or until such director’s earlier death, resignation or removal.
Directors need not be stockholders. The Amended and Restated Certificate of Incorporation or these By Laws may prescribe qualifications
for directors.
Section 3.4 Resignation;
Vacancies. Any director may resign at any time upon notice given in writing or by electronic transmission to the Corporation at its
principal office or to the Chairman of the Board, Chief Executive Officer, President or Secretary. The resignation shall take effect at
the time specified therein or upon the happening of an event specified therein, and if no time or event is specified, at the time of its
receipt. Unless otherwise provided in the Amended and Restated Certificate of Incorporation or these By Laws, when one or more directors
so resigns and the resignation is effective at a future date or upon the happening of an event to occur on a future date, a majority of
the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon
to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided
in this section in the filling of other vacancies. Unless otherwise provided in the Amended and Restated Certificate of Incorporation
or these By Laws, vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, although less than a quorum, or by a sole remaining director. Any director appointed in
accordance with the preceding sentence shall hold office for the remainder of the term of the class, if any, to which the director is
appointed and until such director’s successor shall have been elected and qualified. A vacancy on the Board shall be deemed to exist
under these By Laws in the case of the death, removal or resignation of any director.
Section 3.5 Compensation.
Unless otherwise restricted by the Amended and Restated Certificate of Incorporation or these By Laws, the Board shall have the authority
to fix the compensation of directors. The directors may be reimbursed their expenses, if any, of attendance at each meeting of the Board,
including for service on a committee of the Board, and may be paid either a fixed sum for attendance at each meeting of the Board or other
compensation as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of committees of the Board may be allowed like compensation and reimbursement of expenses for service on
the committee.
ARTICLE
IV
BOARD MEETINGS
Section 4.1 Annual
Meetings. The Board shall meet as soon as practicable after the adjournment of each annual stockholders meeting at the place of the
annual stockholders meeting unless the Board shall fix another time and place and give notice thereof in the manner required herein for
special meetings of the Board. No notice to the directors shall be necessary to legally convene this meeting, except as provided in this
Section 4.1.
Section 4.2 Regular
Meetings. Regularly scheduled, periodic meetings of the Board may be held without notice at such times, dates and places (within or
without the State of Delaware) as shall from time to time be determined by the Board.
Section 4.3 Special
Meetings. Special meetings of the Board (a) may be called by the Chairman of the Board or President and (b) shall be called by the
Chairman of the Board, President or Secretary on the written request of at least a majority of directors then in office, or the sole director,
as the case may be, and shall be held at such time, date and place (within or without the State of Delaware) as may be determined by the
person calling the meeting or, if called upon the request of directors or the sole director, as specified in such written request. Notice
of each special meeting of the Board shall be given, as provided in Section 9.3, to each director (i) at least 24 hours before
the meeting if such notice is oral notice given personally or by telephone or written notice given by hand delivery or by means of a form
of electronic transmission and delivery; (ii) at least two days before the meeting if such notice is sent by a nationally recognized
overnight delivery service; and (iii) at least five days before the meeting if such notice is sent through the United States mail.
If the Secretary shall fail or refuse to give such notice, then the notice may be given by the officer who called the meeting or the directors
who requested the meeting. Any and all business that may be transacted at a regular meeting of the Board may be transacted at a special
meeting. Except as may be otherwise expressly provided by applicable law, the Amended and Restated Certificate of Incorporation, or these
By Laws, neither the business to be transacted at, nor the purpose of, any special meeting need be specified in the notice or waiver of
notice of such meeting. A special meeting may be held at any time without notice if all the directors are present or if those not present
waive notice of the meeting in accordance with Section 9.4.
Section 4.4 Quorum;
Required Vote. A majority of the Board shall constitute a quorum for the transaction of business at any meeting of the Board, and
the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as may
be otherwise specifically provided by applicable law, the Amended and Restated Certificate of Incorporation or these By Laws. If a quorum
shall not be present at any meeting, a majority of the directors present may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum is present.
Section 4.5 Board
Action Without Meeting. Unless otherwise restricted by the Amended and Restated Certificate of Incorporation or these By Laws, any
action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all members
of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or
electronic transmission or transmissions (or paper reproductions thereof) are filed with the minutes of proceedings of the Board or committee.
Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained
in electronic form.
Section 4.6 Organization.
The chairman of each meeting of the Board shall be the Chairman of the Board or, in the absence (or inability or refusal to act) of the
Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) or, in the absence (or inability or refusal to act)
of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President (if he or she shall be a director) or
in the absence (or inability or refusal to act) of the President or if the President is not a director, a chairman elected from the directors
present. The Secretary shall act as secretary of all meetings of the Board. In the absence (or inability or refusal to act) of the Secretary,
an Assistant Secretary shall perform the duties of the Secretary at such meeting. In the absence (or inability or refusal to act) of the
Secretary and all Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting.
ARTICLE
V
COMMITTEES OF DIRECTORS
Section 5.1 Establishment.
The Board may by resolution passed by a majority of the Board designate one or more committees, each committee to consist of one or more
of the directors of the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.
The Board shall have the power at any time to fill vacancies in, to change the membership of, or to dissolve any such committee.
Section 5.2 Available
Powers. Any committee established pursuant to Section 5.1 hereof, to the extent permitted by applicable law and by resolution
of the Board, shall have and may exercise all of the powers and authority of the Board in the management of the business and affairs of
the Corporation, and may authorize the seal of the Corporation to be affixed to all papers that may require it.
Section 5.3 Alternate
Members. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified
member at any meeting of such committee. In the absence or disqualification of a member of the committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another
member of the Board to act at the meeting in place of any such absent or disqualified member.
Section 5.4 Procedures.
Unless the Board otherwise provides, the time, date, place, if any, and notice of meetings of a committee shall be determined by such
committee. At meetings of a committee, a majority of the number of members of the committee (but not including any alternate member, unless
such alternate member has replaced any absent or disqualified member at the time of, or in connection with, such meeting) shall constitute
a quorum for the transaction of business. The act of a majority of the members present at any meeting at which a quorum is present shall
be the act of the committee, except as otherwise specifically provided by applicable law, the Amended and Restated Certificate of Incorporation,
these By Laws or the Board. If a quorum is not present at a meeting of a committee, the members present may adjourn the meeting from time
to time, without notice other than an announcement at the meeting, until a quorum is present. Unless the Board otherwise provides and
except as provided in these By Laws, each committee designated by the Board may make, alter, amend and repeal rules for the conduct of
its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board is authorized to
conduct its business pursuant to Article III and Article IV of these By Laws.
ARTICLE
VI
OFFICERS
Section 6.1 Officers.
The officers of the Corporation elected by the Board shall be a Chairman of the Board, a Chief Executive Officer, a President, a Chief
Financial Officer, a Secretary and such other officers (including without limitation, Vice Presidents, Assistant Secretaries and a Treasurer)
as the Board from time to time may determine. Officers elected by the Board shall each have such powers and duties as generally pertain
to their respective offices, subject to the specific provisions of this Article VI. Such officers shall also have such powers and
duties as from time to time may be conferred by the Board. The Chief Executive Officer or President may also appoint such other officers
(including without limitation one or more Vice Presidents and Controllers) as may be necessary or desirable for the conduct of the business
of the Corporation. Such other officers shall have such powers and duties and shall hold their offices for such terms as may be provided
in these By Laws or as may be prescribed by the Board or, if such officer has been appointed by the Chief Executive Officer or President,
as may be prescribed by the appointing officer.
(a) Chairman
of the Board. The Chairman of the Board shall preside when present at all meetings of the stockholders and the Board. The Chairman
of the Board shall have general supervision and control of the acquisition activities of the Corporation subject to the ultimate authority
of the Board, and shall be responsible for the execution of the policies of the Board with respect to such matters. In the absence (or
inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) shall preside
when present at all meetings of the stockholders and the Board. The powers and duties of the Chairman of the Board shall not include supervision
or control of the preparation of the financial statements of the Corporation (other than through participation as a member of the Board).
The position of Chairman of the Board and Chief Executive Officer may be held by the same person.
(b) Chief
Executive Officer. The Chief Executive Officer shall be the chief executive officer of the Corporation, shall have general supervision
of the affairs of the Corporation and general control of all of its business subject to the ultimate authority of the Board, and shall
be responsible for the execution of the policies of the Board with respect to such matters, except to the extent any such powers and duties
have been prescribed to the Chairman of the Board pursuant to Section 6.1(a) above. In the absence (or inability or refusal to
act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) shall preside when present at all meetings
of the stockholders and the Board. The position of Chief Executive Officer and President may be held by the same person.
(c) President.
The President shall make recommendations to the Chief Executive Officer on all operational matters that would normally be reserved for
the final executive responsibility of the Chief Executive Officer. In the absence (or inability or refusal to act) of the Chairman of
the Board and Chief Executive Officer, the President (if he or she shall be a director) shall preside when present at all meetings of
the stockholders and the Board. The President shall also perform such duties and have such powers as shall be designated by the Board.
The position of President and Chief Executive Officer may be held by the same person.
(d) Vice
Presidents. In the absence (or inability or refusal to act) of the President, the Vice President (or in the event there be more than
one Vice President, the Vice Presidents in the order designated by the Board) shall perform the duties and have the powers of the President.
Any one or more of the Vice Presidents may be given an additional designation of rank or function.
(e) Secretary.
(i) The
Secretary shall attend all meetings of the stockholders, the Board and (as required) committees of the Board and shall record the proceedings
of such meetings in books to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders
and special meetings of the Board and shall perform such other duties as may be prescribed by the Board, the Chairman of the Board, Chief
Executive Officer or President. The Secretary shall have custody of the corporate seal of the Corporation and the Secretary, or any Assistant
Secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed, it may be attested by his or her
signature or by the signature of such Assistant Secretary. The Board may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing thereof by his or her signature.
(ii) The
Secretary shall keep, or cause to be kept, at the principal executive office of the Corporation or at the office of the Corporation’s
transfer agent or registrar, if one has been appointed, a stock ledger, or duplicate stock ledger, showing the names of the stockholders
and their addresses, the number and classes of shares held by each and, with respect to certificated shares, the number and date of certificates
issued for the same and the number and date of certificates cancelled.
(f) Assistant
Secretaries. The Assistant Secretary or, if there be more than one, the Assistant Secretaries in the order determined by the Board
shall, in the absence (or inability or refusal to act) of the Secretary, perform the duties and have the powers of the Secretary.
(g) Chief
Financial Officer. The Chief Financial Officer shall perform all duties commonly incident to that office (including, without limitation,
the care and custody of the funds and securities of the Corporation, which from time to time may come into the Chief Financial Officer’s
hands and the deposit of the funds of the Corporation in such banks or trust companies as the Board, the Chief Executive Officer or the
President may authorize).
(h) Treasurer.
The Treasurer shall, in the absence (or inability or refusal to act) of the Chief Financial Officer, perform the duties and exercise the
powers of the Chief Financial Officer.
Section 6.2 Term
of Office; Removal; Vacancies. The elected officers of the Corporation shall be appointed by the Board and shall hold office
until their successors are duly elected and qualified by the Board or until their earlier death, resignation, retirement, disqualification,
or removal from office. Any officer may be removed, with or without cause, at any time by the Board. Any officer appointed by the Chief
Executive Officer or President may also be removed, with or without cause, by the Chief Executive Officer or President, as the case may
be, unless the Board otherwise provides. Any vacancy occurring in any elected office of the Corporation may be filled by the Board. Any
vacancy occurring in any office appointed by the Chief Executive Officer or President may be filled by the Chief Executive Officer, or
President, as the case may be, unless the Board then determines that such office shall thereupon be elected by the Board, in which case
the Board shall elect such officer.
Section 6.3 Other
Officers. The Board may delegate the power to appoint such other officers and agents, and may also remove such officers and agents
or delegate the power to remove same, as it shall from time to time deem necessary or desirable.
Section 6.4 Multiple
Officeholders; Stockholder and Director Officers. Any number of offices may be held by the same person unless the Amended and
Restated Certificate of Incorporation or these By Laws otherwise provide. Officers need not be stockholders or residents of the State
of Delaware.
ARTICLE
VII
Shares of stock
Section 7.1 Certificated
and Uncertificated Shares. The shares of the Corporation may be certificated or uncertificated, subject to the sole discretion of
the Board and the requirements of the DGCL.
Section 7.2 Multiple
Classes of Stock. If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class,
the Corporation shall (a) cause the powers, designations, preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights to be set
forth in full or summarized on the face or back of any certificate that the Corporation issues to represent shares of such class or series
of stock or (b) in the case of uncertificated shares, within a reasonable time after the issuance or transfer of such shares, send to
the registered owner thereof a written notice containing the information required to be set forth on certificates as specified in clause
(a) above; provided, however, that, except as otherwise provided by applicable law, in lieu of the foregoing requirements, there
may be set forth on the face or back of such certificate or, in the case of uncertificated shares, on such written notice a statement
that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions
of such preferences or rights.
Section 7.3 Signatures.
Each certificate representing capital stock of the Corporation shall be signed by or in the name of the Corporation by (a) the Chairman
of the Board, Chief Executive Officer, the President or a Vice President and (b) the Chief Financial Officer, Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any or all the signatures on the certificate may be a facsimile.
In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may be issued by the Corporation
with the same effect as if such person were such officer, transfer agent or registrar on the date of issue.
Section 7.4 Consideration
and Payment for Shares.
(a) Subject
to applicable law and the Amended and Restated Certificate of Incorporation, shares of stock may be issued for such consideration, having
in the case of shares with par value a value not less than the par value thereof, and to such persons, as determined from time to time
by the Board. The consideration may consist of any tangible or intangible property or any benefit to the Corporation including cash, promissory
notes, services performed, contracts for services to be performed or other securities, or any combination thereof.
(b) Subject
to applicable law and the Amended and Restated Certificate of Incorporation, shares may not be issued until the full amount of the consideration
has been paid, unless upon the face or back of each certificate issued to represent any partly paid shares of capital stock or upon the
books and records of the Corporation in the case of partly paid uncertificated shares, there shall have been set forth the total amount
of the consideration to be paid therefor and the amount paid thereon up to and including the time said certificate representing certificated
shares or said uncertificated shares are issued.
Section 7.5 Lost,
Destroyed or Wrongfully Taken Certificates.
(a) If
an owner of a certificate representing shares claims that such certificate has been lost, destroyed or wrongfully taken, the Corporation
shall issue a new certificate representing such shares or such shares in uncertificated form if the owner: (i) requests such a new certificate
before the Corporation has notice that the certificate representing such shares has been acquired by a protected purchaser; (ii)
if requested by the Corporation, delivers to the Corporation a bond sufficient to indemnify the Corporation against any claim that may
be made against the Corporation on account of the alleged loss, wrongful taking or destruction of such certificate or the issuance of
such new certificate or uncertificated shares; and (iii) satisfies other reasonable requirements imposed by the Corporation.
(b) If
a certificate representing shares has been lost, apparently destroyed or wrongfully taken, and the owner fails to notify the Corporation
of that fact within a reasonable time after the owner has notice of such loss, apparent destruction or wrongful taking and the Corporation
registers a transfer of such shares before receiving notification, the owner shall be precluded from asserting against the Corporation
any claim for registering such transfer or a claim to a new certificate representing such shares or such shares in uncertificated form.
Section 7.6 Transfer
of Stock.
(a) If
a certificate representing shares of the Corporation is presented to the Corporation with an endorsement requesting the registration of
transfer of such shares or an instruction is presented to the Corporation requesting the registration of transfer of uncertificated shares,
the Corporation shall register the transfer as requested if:
(i) in
the case of certificated shares, the certificate representing such shares has been surrendered;
(ii) (A)
with respect to certificated shares, the endorsement is made by the person specified by the certificate as entitled to such shares;
(B) with respect to uncertificated shares, an instruction is made by the registered owner of such uncertificated shares; or (C) with
respect to certificated shares or uncertificated shares, the endorsement or instruction is made by any other appropriate person or by
an agent who has actual authority to act on behalf of the appropriate person;
(iii) the
Corporation has received a guarantee of signature of the person signing such endorsement or instruction or such other reasonable assurance
that the endorsement or instruction is genuine and authorized as the Corporation may request;
(iv) the
transfer does not violate any restriction on transfer imposed by the Corporation; and
(v) such
other conditions for such transfer as shall be provided for under applicable law have been satisfied.
(b) Whenever
any transfer of shares shall be made for collateral security and not absolutely, the Corporation shall so record such fact in the entry
of transfer if, when the certificate for such shares is presented to the Corporation for transfer or, if such shares are uncertificated,
when the instruction for registration of transfer thereof is presented to the Corporation, both the transferor and transferee request
the Corporation to do so.
Section 7.7 Registered
Stockholders. Before due presentment for registration of transfer of a certificate representing shares of the Corporation or of an
instruction requesting registration of transfer of uncertificated shares, the Corporation may treat the registered owner as the person
exclusively entitled to inspect for any proper purpose the stock ledger and the other books and records of the Corporation, vote such
shares, receive dividends or notifications with respect to such shares and otherwise exercise all the rights and powers of the owner of
such shares, except that a person who is the beneficial owner of such shares (if held in a voting trust or by a nominee on behalf of such
person) may, upon providing documentary evidence of beneficial ownership of such shares and satisfying such other conditions as are provided
under applicable law, may also so inspect the books and records of the Corporation.
Section 7.8 Regulations.
The Board shall have power and authority to make such additional rules and regulations, subject to any applicable requirement of law,
as the Board may deem necessary and appropriate with respect to the issue, transfer or registration of transfer of shares of stock or
certificates representing shares. The Board may appoint one or more transfer agents or registrars and may require for the validity thereof
that certificates representing shares bear the signature of any transfer agent or registrar so appointed.
ARTICLE
VIII
INDEMNIFICATION
Section 8.1 Right
to Indemnification. To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation
shall indemnify and hold harmless each person who was or is made a party or is threatened to be made a party to or is otherwise involved
in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter
a “proceeding”), by reason of the fact that he or she is or was a director or officer of the Corporation or,
while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect
to an employee benefit plan (hereinafter an “Indemnitee”), whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee
or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines,
ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such Indemnitee in connection with such proceeding;
provided, however, that, except as provided in Section 8.3 with respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify an Indemnitee in connection with a proceeding (or part thereof) initiated by such Indemnitee only if such
proceeding (or part thereof) was authorized by the Board.
Section 8.2 Right
to Advancement of Expenses. In addition to the right to indemnification conferred in Section 8.1, an Indemnitee shall also
have the right to be paid by the Corporation to the fullest extent not prohibited by applicable law the expenses (including, without limitation,
attorneys’ fees) incurred in defending or otherwise participating in any such proceeding in advance of its final disposition (hereinafter
an “advancement of expenses”); provided, however, that, if the DGCL requires, an advancement of expenses
incurred by an Indemnitee in his or her capacity as a director or officer of the Corporation (and not in any other capacity in which service
was or is rendered by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon the
Corporation’s receipt of an undertaking (hereinafter an “undertaking”), by or on behalf of such Indemnitee,
to repay all amounts so advanced if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified under this
Article VIII or otherwise.
Section 8.3 Right
of Indemnitee to Bring Suit. If a claim under Section 8.1 or Section 8.2 is not paid in full by the Corporation within
60 days after a written claim therefor has been received by the Corporation, except in the case of a claim for an advancement of expenses,
in which case the applicable period shall be 20 days, the Indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnitee shall also be entitled to be paid the expense
of prosecuting or defending such suit. In (a) any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but
not in a suit brought by an Indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (b) in any suit
brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled
to recover such expenses upon a final judicial decision from which there is no further right to appeal (hereinafter a “final
adjudication”) that, the Indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither
the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent
legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee
is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual
determination by the Corporation (including a determination by its directors who are not parties to such action, a committee of such directors,
independent legal counsel, or its stockholders) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption
that the Indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, shall be
a defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnitee
is not entitled to be indemnified, or to such advancement of expenses, under this Article VIII or otherwise shall be on the Corporation.
Section 8.4 Non-Exclusivity
of Rights. The rights provided to any Indemnitee pursuant to this Article VIII shall not be exclusive of any other right, which
such Indemnitee may have or hereafter acquire under applicable law, the Amended and Restated Certificate of Incorporation, these By Laws,
an agreement, a vote of stockholders or disinterested directors, or otherwise.
Section 8.5 Insurance.
The Corporation may maintain insurance, at its expense, to protect itself and/or any person who is or was a director, officer, employee
or agent of the Corporation, or is serving at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any expense, liability or loss asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the DGCL.
Section 8.6 Indemnification
of Other Persons. This Article VIII shall not limit the right of the Corporation to the extent and in the manner authorized
or permitted by law to indemnify and to advance expenses to persons other than Indemnitees. Without limiting the foregoing, the Corporation
may, to the extent authorized from time to time by the Board, grant rights to indemnification and to the advancement of expenses to any
employee or agent of the Corporation and to any other person who is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect
to an employee benefit plan, to the fullest extent of the provisions of this Article VIII with respect to the indemnification and
advancement of expenses of Indemnitees under this Article VIII. The Corporation’s obligation, if any, to indemnify or advance
expenses to any Person who was or is serving at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or non-profit entity shall be reduced by any amount such Person may collect as indemnification
or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.
Section 8.7 Amendments.
Any repeal or amendment of this Article VIII by the Board or the stockholders of the Corporation or by changes in applicable law,
or the adoption of any other provision of these By Laws inconsistent with this Article VIII, will, to the extent permitted by applicable
law, be prospective only (except to the extent such amendment or change in applicable law permits the Corporation to provide broader indemnification
rights to Indemnitees on a retroactive basis than permitted prior thereto), and will not in any way diminish or adversely affect any right
or protection existing hereunder in respect of any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent
provision.
Section 8.8 Certain
Definitions. For purposes of this Article VIII, (a) references to “other enterprise” shall include
any employee benefit plan; (b) references to “fines” shall include any excise taxes assessed on a person
with respect to an employee benefit plan; (c) references to “serving at the request of the Corporation”
shall include any service that imposes duties on, or involves services by, a person with respect to any employee benefit plan, its participants,
or beneficiaries; and (d) a person who acted in good faith and in a manner such person reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the
best interest of the Corporation” for purposes of Section 145 of the DGCL.
Section 8.9 Contract
Rights. The rights provided to Indemnitees pursuant to this Article VIII shall be contract rights and such rights shall continue
as to an Indemnitee who has ceased to be a director, officer, agent or employee and shall inure to the benefit of the Indemnitee’s
heirs, executors and administrators.
Section 8.10 Severability.
If any provision or provisions of this Article VIII shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining provisions of this Article VIII shall not in any way be affected
or impaired thereby; and (b) to the fullest extent possible, the provisions of this Article VIII (including, without limitation,
each such portion of this Article VIII containing any such provision held to be invalid, illegal or unenforceable) shall be construed
so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
ARTICLE
IX
MISCELLANEOUS
Section 9.1 Place
of Meetings. If the place of any meeting of stockholders, the Board or committee of the Board for which notice is required under these
By Laws is not designated in the notice of such meeting, such meeting shall be held at the principal business office of the Corporation;
provided, however, if the Board has, in its sole discretion, determined that a meeting shall not be held at any place, but instead shall
be held by means of remote communication pursuant to Section 9.5 hereof, then such meeting shall not be held at any place.
Section 9.2 Fixing
Record Dates.
(a) In
order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof,
the Board, or any committee thereof, may fix a record date, which shall not precede the date upon which the resolution fixing the record
date is adopted by the Board, or such committee, and which record date shall not be more than 60 nor less than 10 days before the date
of such meeting. If the Board, or such committee, so fixes a date, such date shall also be the record date for determining the stockholders
entitled to vote at such meeting unless the Board, or such committee thereof determines, at the time it fixes such record date, that a
later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board,
or any committee thereof, the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders
shall be at the close of business on the business day next preceding the day on which notice is given, or, if notice is waived, at the
close of business on the business day next preceding the day on which the meeting is held. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board,
or any committee thereof, may fix a new record date for the adjourned meeting, and in such case shall also fix as the record date for
stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders
entitled to vote in accordance with the foregoing provisions of this Section 9.2(a) at the adjourned meeting.
(b) In
order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board, or any committee thereof, may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action.
If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the
day on which the Board adopts the resolution relating thereto.
Section 9.3 Means
of Giving Notice.
(a) Notice
to Directors. Whenever under applicable law, the Amended and Restated Certificate of Incorporation or these By Laws notice is required
to be given to any director, such notice shall be given either (i) in writing and sent by mail, or by a nationally recognized delivery
service, (ii) by means of facsimile telecommunication or other form of electronic transmission, or (iii) by oral notice given personally
or by telephone. A notice to a director will be deemed given as follows: (i) if given by hand delivery, orally, or by telephone, when
actually received by the director, (ii) if sent through the United States mail, when deposited in the United States mail, with postage
and fees thereon prepaid, addressed to the director at the director’s address appearing on the records of the Corporation, (iii)
if sent for next day delivery by a nationally recognized overnight delivery service, when deposited with such service, with fees thereon
prepaid, addressed to the director at the director’s address appearing on the records of the Corporation, (iv) if sent by facsimile
telecommunication, when sent to the facsimile transmission number for such director appearing on the records of the Corporation, (v) if
sent by electronic mail, when sent to the electronic mail address for such director appearing on the records of the Corporation, or (vi)
if sent by any other form of electronic transmission, when sent to the address, location or number (as applicable) for such director appearing
on the records of the Corporation.
(b) Notice
to Stockholders. Whenever under applicable law, the Amended and Restated Certificate of Incorporation or these By Laws notice is required
to be given to any stockholder, such notice may be given (i) in writing and sent either by hand delivery, through the United States mail,
or by a nationally recognized overnight delivery service for next day delivery, or (ii) by means of a form of electronic transmission
consented to by the stockholder, to the extent permitted by, and subject to the conditions set forth in Section 232 of the DGCL. A notice
to a stockholder shall be deemed given as follows: (i) if given by hand delivery, when actually received by the stockholder, (ii) if sent
through the United States mail, when deposited in the United States mail, with postage and fees thereon prepaid, addressed to the stockholder
at the stockholder’s address appearing on the stock ledger of the Corporation, (iii) if sent for next day delivery by a nationally
recognized overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed to the stockholder at the
stockholder’s address appearing on the stock ledger of the Corporation, and (iv) if given by a form of electronic transmission consented
to by the stockholder to whom the notice is given and otherwise meeting the requirements set forth above, (A) if by facsimile transmission,
when directed to a number at which the stockholder has consented to receive notice, (B) if by electronic mail, when directed to an electronic
mail address at which the stockholder has consented to receive notice, (C) if by a posting on an electronic network together with separate
notice to the stockholder of such specified posting, upon the later of (1) such posting and (2) the giving of such separate notice, and
(D) if by any other form of electronic transmission, when directed to the stockholder. A stockholder may revoke such stockholder’s
consent to receiving notice by means of electronic communication by giving written notice of such revocation to the Corporation. Any such
consent shall be deemed revoked if (1) the Corporation is unable to deliver by electronic transmission two consecutive notices given by
the Corporation in accordance with such consent and (2) such inability becomes known to the Secretary or an Assistant Secretary or to
the Corporation’s transfer agent, or other person responsible for the giving of notice; provided, however, the inadvertent
failure to treat such inability as a revocation shall not invalidate any meeting or other action.
(c) Electronic
Transmission. “Electronic transmission” means any form of communication, not directly involving the physical
transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated process, including but not limited to transmission by telex, facsimile
telecommunication, electronic mail, telegram and cablegram.
(d) Notice
to Stockholders Sharing Same Address. Without limiting the manner by which notice otherwise may be given effectively by the Corporation
to stockholders, any notice to stockholders given by the Corporation under any provision of the DGCL, the Amended and Restated Certificate
of Incorporation or these By Laws shall be effective if given by a single written notice to stockholders who share an address if consented
to by the stockholders at that address to whom such notice is given. A stockholder may revoke such stockholder’s consent by delivering
written notice of such revocation to the Corporation. Any stockholder who fails to object in writing to the Corporation within 60 days
of having been given written notice by the Corporation of its intention to send such a single written notice shall be deemed to have consented
to receiving such single written notice.
(e) Exceptions
to Notice Requirements. Whenever notice is required to be given, under the DGCL, the Amended and Restated Certificate of Incorporation
or these By Laws, to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and
there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any
action or meeting that shall be taken or held without notice to any such person with whom communication is unlawful shall have the same
force and effect as if such notice had been duly given. In the event that the action taken by the Corporation is such as to require the
filing of a certificate with the Secretary of State of Delaware, the certificate shall state, if such is the fact and if notice is required,
that notice was given to all persons entitled to receive notice except such persons with whom communication is unlawful. Whenever notice
is required to be given by the Corporation, under any provision of the DGCL, the Amended and Restated Certificate of Incorporation or
these By Laws, to any stockholder to whom (1) notice of two consecutive annual meetings of stockholders and all notices of stockholder
meetings or of the taking of action by written consent of stockholders without a meeting to such stockholder during the period between
such two consecutive annual meetings, or (2) all, and at least two payments (if sent by first-class mail) of dividends or interest on
securities during a 12-month period, have been mailed addressed to such stockholder at such stockholder’s address as shown on the
records of the Corporation and have been returned undeliverable, the giving of such notice to such stockholder shall not be required.
Any action or meeting that shall be taken or held without notice to such stockholder shall have the same force and effect as if such notice
had been duly given. If any such stockholder shall deliver to the Corporation a written notice setting forth such stockholder’s
then current address, the requirement that notice be given to such stockholder shall be reinstated. In the event that the action taken
by the Corporation is such as to require the filing of a certificate with the Secretary of State of Delaware, the certificate need not
state that notice was not given to persons to whom notice was not required to be given pursuant to Section 230(b) of the DGCL. The exception
in subsection (1) of the first sentence of this paragraph to the requirement that notice be given shall not be applicable to any notice
returned as undeliverable if the notice was given by electronic transmission.
Section 9.4 Waiver
of Notice. Whenever any notice is required to be given under applicable law, the Amended and Restated Certificate of Incorporation,
or these By Laws, a written waiver of such notice, signed before or after the date of such meeting by the person or persons entitled to
said notice, or a waiver by electronic transmission by the person entitled to said notice, shall be deemed equivalent to such required
notice. All such waivers shall be kept with the books of the Corporation. Attendance at a meeting shall constitute a waiver of notice
of such meeting, except where a person attends for the express purpose of objecting to the transaction of any business on the ground that
the meeting was not lawfully called or convened.
Section 9.5 Meeting
Attendance via Remote Communication Equipment.
(a) Stockholder
Meetings. If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt,
stockholders entitled to vote at such meeting and proxy holders not physically present at a meeting of stockholders may, by means of remote
communication:
(i) participate
in a meeting of stockholders; and
(ii) be
deemed present in person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by
means of remote communication, provided that (A) the Corporation shall implement reasonable measures to verify that each person deemed
present and permitted to vote at the meeting by means of remote communication is a stockholder or proxy holder, (B) the Corporation shall
implement reasonable measures to provide such stockholders and proxy holders a reasonable opportunity to participate in the meeting and,
if entitled to vote, to vote on matters submitted to the applicable stockholders, including an opportunity to read or hear the proceedings
of the meeting substantially concurrently with such proceedings, and (C) if any stockholder or proxy holder votes or takes other action
at the meeting by means of remote communication, a record of such votes or other action shall be maintained by the Corporation.
(b) Board
Meetings. Unless otherwise restricted by applicable law, the Amended and Restated Certificate of Incorporation or these By Laws, members
of the Board or any committee thereof may participate in a meeting of the Board or any committee thereof by means of conference telephone
or other communications equipment by means of which all persons participating in the meeting can hear each other. Such participation in
a meeting shall constitute presence in person at the meeting, except where a person participates in the meeting for the express purpose
of objecting to the transaction of any business on the ground that the meeting was not lawfully called or convened.
Section 9.6 Dividends.
The Board may from time to time declare, and the Corporation may pay, dividends (payable in cash, property or shares of the Corporation’s
capital stock) on the Corporation’s outstanding shares of capital stock, subject to applicable law and the Amended and Restated
Certificate of Incorporation.
Section 9.7 Reserves.
The Board may set apart out of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may
abolish any such reserve.
Section 9.8 Contracts
and Negotiable Instruments. Except as otherwise provided by applicable law, the Amended and Restated Certificate of Incorporation
or these By Laws, any contract, bond, deed, lease, mortgage or other instrument may be executed and delivered in the name and on behalf
of the Corporation by such officer or officers or other employee or employees of the Corporation as the Board may from time to time authorize.
Such authority may be general or confined to specific instances as the Board may determine. The Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, the Treasurer or any Vice President may execute and deliver any contract, bond, deed,
lease, mortgage or other instrument in the name and on behalf of the Corporation. Subject to any restrictions imposed by the Board, the
Chairman of the Board Chief Executive Officer, President, the Chief Financial Officer, the Treasurer or any Vice President may delegate
powers to execute and deliver any contract, bond, deed, lease, mortgage or other instrument in the name and on behalf of the Corporation
to other officers or employees of the Corporation under such person’s supervision and authority, it being understood, however, that
any such delegation of power shall not relieve such officer of responsibility with respect to the exercise of such delegated power.
Section 9.9 Fiscal
Year. The fiscal year of the Corporation shall be fixed by the Board.
Section 9.10 Seal.
The Board may adopt a corporate seal, which shall be in such form as the Board determines. The seal may be used by causing it or a facsimile
thereof to be impressed, affixed or otherwise reproduced.
Section 9.11 Books
and Records. The books and records of the Corporation may be kept within or outside the State of Delaware at such place or places
as may from time to time be designated by the Board.
Section 9.12 Resignation.
Any director, committee member or officer may resign by giving notice thereof in writing or by electronic transmission to the Chairman
of the Board, the Chief Executive Officer, the President or the Secretary. The resignation shall take effect at the time specified therein,
or at the time of receipt of such notice if no time is specified or the specified time is earlier than the time of such receipt. Unless
otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 9.13 Surety
Bonds. Such officers, employees and agents of the Corporation (if any) as the Chairman of the Board, Chief Executive Officer, President
or the Board may direct, from time to time, shall be bonded for the faithful performance of their duties and for the restoration to the
Corporation, in case of their death, resignation, retirement, disqualification or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in their possession or under their control belonging to the Corporation, in such amounts and
by such surety companies as the Chairman of the Board, Chief Executive Officer, President or the Board may determine. The premiums on
such bonds shall be paid by the Corporation and the bonds so furnished shall be in the custody of the Secretary.
Section 9.14 Securities
of Other Corporations. Powers of attorney, proxies, waivers of notice of meeting, consents in writing and other instruments relating
to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chairman of the Board, Chief
Executive Officer, President, any Vice President or any officers authorized by the Board. Any such officer, may, in the name of and on
behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of
security holders of any corporation in which the Corporation may own securities, or to consent in writing, in the name of the Corporation
as such holder, to any action by such corporation, and at any such meeting or with respect to any such consent shall possess and may exercise
any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have
exercised and possessed. The Board may from time to time confer like powers upon any other person or persons.
Section 9.15 Amendments.
The Board shall have the power to adopt, amend, alter or repeal these By Laws. The affirmative vote of a majority of the Board shall be
required to adopt, amend, alter or repeal these By Laws. These By Laws also may be adopted, amended, altered or repealed by the stockholders;
provided, however, that in addition to any vote of the holders of any class or series of capital stock of the Corporation required by
applicable law or the Amended and Restated Certificate of Incorporation, the affirmative vote of the holders of at least 66.7% of the
voting power of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required for the stockholders to adopt, amend, alter or repeal these By Laws.
Exhibit 3.3
CERTIFICATE OF DESIGNATION
of
Series
A CONVERTIBLE PREFERRED STOCK,
PAR VALUE $0.0001 PER SHARE,
OF
ENVOY
MEDICAL, INC.
Pursuant to Section 151 of
the Delaware General Corporation Law (as amended, supplemented or restated from time to time, the “DGCL”), Envoy Medical,
Inc., a corporation organized and existing under the laws of the State of Delaware (the “Company”), in accordance with
the provisions of Section 103 of the DGCL, DOES HEREBY CERTIFY:
WHEREAS, the second
amended and restated certificate of incorporation of the Company, as filed with the Secretary of State of the State of Delaware (the “Certificate
of Incorporation”), authorizes the issuance of 500,000,000 shares of capital stock, consisting of 400,000,000 shares of Class
A common stock, par value $0.0001 per share (“Common Stock”), and 100,000,000 shares of preferred stock, par value
$0.0001 per share (“Preferred Stock”);
WHEREAS, the Certificate
of Incorporation expressly authorizes the Board of Directors of the Company (the “Board”), to the maximum extent permitted
by law, to fix by resolution or resolutions the designations, powers, preferences and rights, and the qualifications, limitations or restrictions
thereof, of any series of Preferred Stock, including, without limitation, authority to fix by resolution or resolutions the dividend rights,
dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), redemption price
or prices, and liquidation preferences of any such series, and the number of shares constituting any such series and the designation thereof,
or any of the foregoing; and
WHEREAS, pursuant to
the authority conferred upon the Board by the Certificate of Incorporation, the Board, on September 29, 2023, adopted the following resolution
designating a new series of Preferred Stock as “Series A Convertible Preferred Stock”:
RESOLVED, that, pursuant
to the authority vested in the Board in accordance with the provisions of Article IV of the Certificate of Incorporation and the
provisions of Section 151 of the DGCL, a series of Preferred Stock of the Company is hereby authorized, and the number of shares to be
included in such series, and the designations, powers, preferences, rights, qualifications, limitations and restrictions of the shares
of Preferred Stock included in such series, shall be as follows:
Section
1. Designation and Number of Shares. The shares of such series of Preferred Stock shall be designated as “Series A
Convertible Preferred Stock” (the “Series A Preferred Stock”). The number of authorized shares constituting the
Series A Preferred Stock shall be 10,000,000. That number from time to time may be increased (but not above the total number of authorized
shares of Preferred Stock) or decreased (but not below the number of shares of Series A Preferred Stock then outstanding) by further
resolution duly adopted by the Board, or any duly authorized committee thereof, and by the filing of a certificate pursuant to the provisions
of the DGCL stating that such increase or decrease, as applicable, has been so authorized. The Company shall not have the authority to
issue fractional shares of Series A Preferred Stock.
Section
2. Ranking. The Series A Preferred Stock will rank, with respect to dividend rights and rights on the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of the Company, senior to the Common Stock (such Capital Stock,
“Junior Stock”).
Section
3. Definitions. As used herein with respect to Series A Preferred Stock:
“Affiliate”
of a specified Person shall mean a Person who, directly or indirectly through one or more intermediaries, controls, is controlled by,
or is under common control with, such specified Person.
“Beneficially Own”,
“Beneficially Owned” or “Beneficial Ownership” and “Beneficial Owner” shall have
the meaning set forth in Rule 13d-3 of the rules and regulations promulgated under the Exchange Act, except that for purposes of this
Certificate of Designation the words “within sixty days” in Rule 13d-3(d)(1)(i) shall not apply to the effect that a Person
shall be deemed to be the Beneficial Owner of a security if that Person has the right to acquire beneficial ownership of such security
at any time. For the avoidance of doubt, for purposes of this Certificate of Designation, the Holder shall at all times be deemed to have
Beneficial Ownership of the shares of Series A Preferred Stock or shares of Common Stock issuable upon conversion or repurchase of shares
of Series A Preferred Stock directly or indirectly held by such Holder, irrespective of any non-conversion period specified in this Certificate
of Designation or any restrictions on transfer or voting contained in this Certificate of Designation.
“Board”
shall have the meaning set forth in the recitals above.
“Business Combination
Agreement” shall mean the Business Combination Agreement between the Company, Envoy Merger Sub, Inc. a Delaware corporation,
and Envoy Medical Corporation, a Minnesota corporation, dated as of April 17, 2023, as it may be amended, supplemented or otherwise
modified from time to time.
“Business Day”
shall mean any weekday that is not a day on which banking institutions in New York, New York are authorized or required by law, regulation
or executive order to be closed.
“Bylaws”
shall mean the bylaws of the Company, as may be amended from time to time.
“Capital Stock”
shall mean, with respect to any Person, any and all shares of, interests in, rights to purchase, warrants to purchase, options for, participations
in or other equivalents of or interests in (however designated) stock issued by such Person.
“Certificate of Designation”
shall mean this Certificate of Designation relating to the Series A Preferred Stock, as it may be amended from time to time.
“Certificate of Incorporation”
shall have the meaning set forth in the recitals above.
“close of business”
shall mean 5:00 p.m. (New York City time).
“Closing Date”
shall have the meaning set forth in the Business Combination Agreement.
“Closing Price”
of the Common Stock on any date of determination shall mean the closing sale price or, if no closing sale price is reported, the last
reported sale price, of the shares of the Common Stock on the Securities Exchange on such date. If the Common Stock is not traded on a
Securities Exchange on any date of determination, the Closing Price of the Common Stock on such date of determination shall mean the closing
sale price as reported in the composite transactions for the principal United States securities exchange or automated quotation system
on which the Common Stock is so listed or quoted, or, if no closing sale price is reported, the last reported sale price on the principal
United States securities exchange or automated quotation system on which the Common Stock is so listed or quoted, or if the Common Stock
is not so listed or quoted on a United States securities exchange or automated quotation system, the last quoted bid price for the Common
Stock in the over-the-counter market as reported by OTC Markets Group Inc. or any similar organization, or, if that bid price is not available,
the market price of the Common Stock on that date as determined by an Independent Financial Advisor retained by the Company for such purpose.
“Code”
shall mean the United States Internal Revenue Code of 1986, as amended.
“Common Stock”
shall have the meaning set forth in the recitals above.
“Company”
shall have the meaning set forth in the recitals above.
“Constituent Person”
shall have the meaning set forth in Section 11(a)(iii).
“Conversion Agent”
shall mean the Transfer Agent acting in its capacity as conversion agent for the Series A Preferred Stock, and its successors and
assigns.
“Conversion Date”
shall have the meaning set forth in Section 8(a).
“Conversion Notice”
shall have the meaning set forth in Section 8(a)(i).
“Conversion Price”
shall mean, for each share of Series A Preferred Stock, a dollar amount equal to $11.50, subject to adjustment as set forth herein.
“DGCL”
shall have the meaning set forth in the recitals above.
“Distributed Entity”
shall mean any Subsidiary of the Company distributed in a Distribution Transaction.
“Distribution Transaction”
shall mean any distribution of equity securities of a Subsidiary of the Company to holders of Common Stock, whether by means of a spin-off,
split-off, redemption, reclassification, exchange, stock dividend, share distribution, rights offering or similar transaction.
“Dividend”
shall mean any Regular Dividend, Participating Dividend or dividend on any unpaid Regular Dividend.
“Ex-Dividend Date”
shall mean, with respect to an issuance, dividend or distribution on the Common Stock, the first date on which shares of Common Stock
trade on the applicable exchange or in the applicable market, regular way, without the right to receive such issuance, dividend or distribution
(including pursuant to due bills or similar arrangements required by the relevant stock exchange). For the avoidance of doubt, any alternative
trading convention on the applicable exchange or market in respect of the Common Stock under a separate ticker symbol or CUSIP number
will not be considered “regular way” for this purpose.
“Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended.
“Exchange Preferred
Stock” shall mean a series of convertible preferred stock issued by the Company and having terms, conditions, designations,
dividend rights, voting powers, rights on liquidation and other preferences and relative, participating, optional or other special rights,
and qualifications, limitations or restrictions thereof that are identical, or as nearly so as is practicable in the good faith judgment
of the Board, to those of the Series A Preferred Stock, except that the Original Issuance Price and the Conversion Price thereof will
be determined as provided herein.
“Exchange Property”
shall have the meaning set forth in Section 11(a)(iii).
“Exempt Issuance”
shall have the meaning set forth in Section 10(b).
“Holder”
shall mean a Person in whose name the shares of the Series A Preferred Stock are registered, which Person shall be treated by the Company,
Transfer Agent, Registrar, paying agent and Conversion Agent as the absolute owner of the shares of Series A Preferred Stock for the purpose
of making payment and settling conversions and for all other purposes; provided, however that, to the fullest extent permitted
by law, (i) no Person that has received shares of Series A Preferred Stock in violation of the Registration Rights Agreement and of any
transfer restrictions set forth therein shall be a Holder, (ii) the Transfer Agent, Registrar, paying agent and Conversion Agent, as applicable,
shall not, unless directed otherwise by the Company, recognize any such Person as a Holder and (iii) the Person in whose name the shares
of the Series A Preferred Stock were registered immediately prior to such transfer shall remain the Holder of such shares.
“Independent Financial
Advisor” shall mean an accounting, appraisal, investment banking firm or consultant of nationally recognized standing; provided,
however, that such firm or consultant is not an Affiliate of the Company.
“Intended Tax Treatment”
shall have the meaning set forth in Section 18(b).
“Issuance Date”
shall mean, with respect to any share of Series A Preferred Stock, the date of issuance of such share.
“Junior Stock”
shall have the meaning set forth in Section 2.
“Mandatory Conversion”
shall have the meaning set forth in Section 7(a).
“Mandatory Conversion
Date” shall have the meaning set forth in Section 7(a).
“Mandatory Conversion
Price” shall mean, for each share of Series A Preferred Stock, a dollar amount equal to $15.00, subject to adjustment as set
forth herein.
“Market Disruption
Event” shall mean any of the following events:
(a) any
suspension of, or limitation imposed on, trading of the Common Stock by any exchange or quotation system on which the Closing Price is
determined pursuant to the definition of the term “Closing Price” (the “Relevant Exchange”) during the
one-hour period prior to the close of trading for the regular trading session on the Relevant Exchange and whether by reason of movements
in price exceeding limits permitted by the Relevant Exchange as to securities generally, or otherwise relating to the Common Stock or
options contracts relating to the Common Stock on the Relevant Exchange; or
(b) any
event that disrupts or impairs (as determined by the Company in its reasonable discretion) the ability of market participants during the
one-hour period prior to the close of trading for the regular trading session on the Relevant Exchange in general to effect transactions
in, or obtain market values for, the Common Stock on the Relevant Exchange or to effect transactions in, or obtain market values for,
options contracts relating to the Common Stock on the Relevant Exchange.
“Mirror Preferred
Stock” shall mean a series of convertible preferred stock issued by the Distributed Entity and having terms, conditions, designations,
dividend rights, voting powers, rights on liquidation and other preferences and relative, participating, optional or other special rights,
and qualifications, limitations or restrictions thereof that are identical, or as nearly so as is practicable in the good faith judgment
of the Board, to those of the Series A Preferred Stock, except that the Original Issuance Price and the Conversion Price thereof will
be determined as provided herein.
“Notice of Mandatory
Conversion” shall have the meaning set forth in Section 7(b).
“Officer’s
Certificate” shall mean a certificate executed by the Chief Executive Officer, the Chief Financial Officer or the Secretary
of the Company.
“Original Issuance
Date” shall mean the Closing Date.
“Original Issuance
Price” shall mean, with respect to any share of Series A Preferred Stock, as of any date, $10.00 per share (subject to equitable
adjustment in the event of a stock split, stock consolidation, subdivision, reclassification, reorganization or other event of a similar
nature (other than a redemption or a conversion pursuant to the terms of this Certificate of Designation) that increases or decreases
the number of shares of Series A Preferred Stock outstanding).
“Participating Dividend”
shall have the meaning set forth in Section 4(b).
“Participating Dividend
Payment Date” shall mean each date on which any declared Participating Dividend is scheduled to be paid on the Series A Preferred
Stock with respect to a Participating Dividend.
“Person”
shall mean an individual, corporation, limited liability or unlimited liability company, association, partnership, trust, estate, joint
venture, business trust or unincorporated organization, or a government or any agency or political subdivision thereof, or other entity
of any kind or nature.
“Preferred Stock”
shall have the meaning set forth in the recitals above.
“Record Date”
shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of the Common Stock have the
right to receive any cash, securities or other property or in which the Common Stock is exchanged for or converted into any combination
of cash, securities or other property, the date fixed for determination of holders of the Common Stock entitled to receive such cash,
securities or other property (whether such date is fixed by the Board or by statute, contract or otherwise).
“Register”
shall mean the securities register maintained in respect of the Series A Preferred Stock by the Transfer Agent.
“Registrar”
shall mean the Transfer Agent acting in its capacity as registrar for the Series A Preferred Stock, and its successors and assigns.
“Registration Rights
Agreement” shall mean that certain Amended and Restated Registration Rights and Lock-Up Agreement, dated as of September 29,
2023, by and among the Company and the other parties thereto.
“Regular Dividend”
shall have the meaning set forth in Section 4(a)(i).
“Regular Dividend
Payment Date” shall mean, with respect to any share of Series A Preferred Stock, March 31, June 30, September 30 and December
31 of each year, commencing on December 31, 2023; provided that if any such Regular Dividend Payment Date is not a Business Day, then
the Regular Dividend which would otherwise have been payable on such Regular Dividend Payment Date
will be paid on the immediately preceding Business Day, in each case with the same force and effect as if paid on such Regular
Dividend Payment Date.
“Regular Dividend
Record Date” shall mean: (i) March 15 in the case of a Regular Dividend Payment Date occurring on March 31; (ii) June 15 in
the case of a Regular Dividend Payment Date occurring on June 30; (iii) September 15 in the case of a Regular Dividend Payment Date occurring
on September 30; and (iv) December 15 in the case of a Regular Dividend Payment Date occurring on December 31; provided that if any such
Regular Dividend Record Date would otherwise occur on a day that is not a Business Day, such Regular Dividend Record Date shall instead
be the immediately succeeding Business Day.
“Regular Dividend
Period” shall mean the respective periods commencing on and including January 1, April 1, July 1 and October 1 of each year
and ending on and including the day preceding the first day of the next succeeding Regular Dividend Period (other than the initial Regular
Dividend Period, which shall commence on the Original Issuance Date and end on and include December 31, 2023).
“Regular Dividend
Rate” shall mean 12% per annum.
“Relevant Exchange”
shall have the meaning set forth in the definition of the term “Market Disruption Event”.
“Reorganization Event”
shall have the meaning set forth in Section 11(a)(iii).
“Securities Exchange”
means The Nasdaq Capital Market (or any nationally recognized successor thereto); provided, however, that in the event the Company’s
Common Stock is ever listed or traded on the New York Stock Exchange, NYSE American, the NYSE Arca, The Nasdaq Global Market or The Nasdaq
Global Select Market, (or any nationally recognized successor to any of the foregoing), then the “Securities Exchange”
shall mean such other market or exchange on which the Company’s Common Stock is then listed or traded.
“Series A Preferred
Stock” shall have the meaning set forth in Section 1.
“Subsidiary”
shall mean, with respect to any Person, any other Person of which 50% or more of the shares of the voting securities or other voting interests
are owned or controlled, or the ability to select or elect 50% or more of the directors or similar managers is held, directly or indirectly,
by such first Person or one or more of its Subsidiaries, or by such first Person and one or more of its Subsidiaries.
“Trading Day”
shall mean a Business Day on which the Relevant Exchange is scheduled to be open for business and on which there has not occurred a Market
Disruption Event.
“Trading Period”
shall have the meaning set forth in Section 7(a).
“Transfer Agent”
shall mean the Person acting as Transfer Agent, Registrar and paying agent and Conversion Agent for the Series A Preferred Stock, and
its successors and assigns. The Transfer Agent initially shall be the Company.
“Transfer Taxes”
shall have the meaning set forth in Section 18(a).
“Unpaid Cash Dividends”
shall mean, as of any date, with respect to any share of Series A Preferred Stock, all cash Dividends (including Regular Dividends (whether
or not authorized or declared) and Participating Dividends) that have accrued on such share, but that have not, as of such date, been
paid in cash.
“Voting Stock”
shall mean (i) with respect to the Company, the Common Stock and any other Capital Stock of the Company having the right to vote generally
in any election of directors of the Board and (ii) with respect to any other Person, all Capital Stock of such Person having the right
to vote generally in any election of directors of the board of directors of such Person or other similar governing body.
Section
4. Dividends.
(a)
Regular Dividends.
(i) Generally.
Dividends on each share of Series A Preferred Stock shall accrue at a rate equal to the Regular
Dividend Rate on the Original Issuance Price, from and including the issuance date of such share, whether or not declared and whether
or not assets are legally available for their payment, and shall be cumulative (such dividends, “Regular Dividends”).
Regular Dividends shall be payable in cash quarterly in arrears on each Regular Dividend Payment Date to holders of record as they appear
in the stockholder records of the Company at the close of business on the applicable Regular Dividend Record Date, if, as and when authorized
by the Board, or any duly authorized committee thereof. Notwithstanding any provision to the contrary contained herein, each outstanding
share of Series A Preferred Stock shall be entitled to receive a Regular Dividend with respect to any Regular Dividend Record Date equal
to the Regular Dividend paid with respect to each other share of Series A Preferred Stock that is outstanding on such date. Solely with
respect to the first four (4) Regular Dividends after the Original Issuance Date, the Company shall maintain the funds allocated for such
Regular Dividends, to the extent that such funds are available immediately following the Closing after paying expenses related to the
transactions contemplated by the Business Combination Agreement, in a separate account for the purpose of paying such Regular Dividends
timely on the applicable Regular Dividend Payment Date. If the Company fails to pay any Regular Dividend in full in cash on the applicable
Regular Dividend Payment Date, then an additional dividend on the amount of the unpaid portion of such Regular Dividend shall automatically
accrue at a rate equal to the Regular Dividend Rate, whether or not declared and whether or not assets are legally available for their
payment.
(ii) Computation
of Regular Dividends. Regular Dividends will be computed on the basis of a 360-day year comprised of twelve 30-day months.
(b)
Participating Dividends.
(i) Generally.
No dividend or other distribution on any Junior Stock (whether in cash, securities (including rights or options) or other property, or
any combination of the foregoing) will be declared or paid on any Junior Stock (an “Extraordinary Dividend”) unless,
at the time of such declaration and payment, an equivalent dividend or distribution is declared and paid, respectively, on the Series
A Preferred Stock (such a dividend or distribution on the Series A Preferred Stock, a “Participating Dividend,” and
such corresponding dividend or distribution on the Junior Stock, the “Junior Stock Participating Dividend”), such that:
(1) the Record Date and the payment date for such Participating Dividend occur on the same dates as the Record Date and payment date,
respectively, for such Junior Stock Participating Dividend; and (2) the kind and amount of consideration payable per share of Series A
Preferred Stock in such Participating Dividend is the same kind and amount of consideration that would be payable in the Junior Stock
Participating Dividend in respect of a number of shares of Common Stock equal to the number of shares of Common Stock that would be issuable
(determined in accordance with Section 6) in respect of one (1) share of Series A Preferred Stock if such share of Series A Preferred
Stock was converted as of a Conversion Date occurring immediately prior to such Record Date (subject to the same arrangements, if any,
in such Junior Stock Participating Dividend not to issue or deliver a fractional portion of any security or other property, but with such
arrangement applying separately to each Holder and computed based on the total number of shares of Series A Preferred Stock held by such
Holder on such Record Date).
(ii) Reorganization
Events. Section 4(b)(i) will not apply to, and no Participating Dividend will be required to be declared or paid on the Series
A Preferred Stock in respect of a Reorganization Event, as to which Section 11 will apply.
(c) Waivers.
Any right related to the payment of Dividends under this Section 4 or otherwise set forth in this Certificate of Designation may
be waived as to such rights for all shares of Series A Preferred Stock (and the Holders thereof) upon the vote, election or approval of
the Holders holding a majority of the then-outstanding shares of Series A Preferred Stock.
Section
5. Liquidation Rights.
(a) Liquidation.
In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company, the Holders shall be
entitled, out of assets legally available therefor, before any distribution or payment out of the assets of the Company may be made to
or set aside for the holders of any Junior Stock, and subject to the rights of the Company’s existing and future creditors, to receive
in full a liquidating distribution in cash and in the amount per share of Series A Preferred Stock equal to the greater of (i) the Original
Issuance Price plus any Unpaid Cash Dividends up to, but excluding, the date of payment, and (ii) the amount a Holder would have received
had such Holder, immediately prior to such voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company,
converted such share of Series A Preferred Stock into Common Stock (pursuant to Section 6). Holders shall not be entitled to any
further payments in the event of any such voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company
other than what is expressly provided for in this Section 5 and will have no right or claim to any of the Company’s remaining
assets.
(b) Partial
Payment. If in connection with any distribution described in Section 5(a) above, the assets of the Company or proceeds therefrom
are not sufficient to pay in full the aggregate liquidating distributions required to be paid pursuant to Section 5(a) to all Holders,
the amounts distributed to the Holders shall be paid pro rata in accordance with the respective aggregate liquidating distributions to
which they would otherwise be entitled if all amounts payable thereon were paid in full.
(c) Merger,
Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 5, the sale, conveyance, exchange or transfer
(for cash, shares of stock, securities or other consideration) of all or substantially all of the property and assets of the Company shall
not be deemed a voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company, nor shall the merger, consolidation,
statutory exchange or any other business combination transaction of the Company into or with any other Person or the merger, consolidation,
statutory exchange or any other business combination transaction of any other Person into or with the Company be deemed to be a voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the Company.
Section
6. Right of the Holders to Convert.
(a) Each
Holder shall have the right, at any time and at such Holder’s option, subject to the conversion procedures set forth in Section
8, to (1) convert each share of such Holder’s Series A Preferred Stock into the number of shares of Common Stock equal to the
quotient of (A) the Original Issuance Price as of the applicable Conversion Date divided by (B) the Conversion Price as of the
applicable Conversion Date and (2) receive a cash amount equal to any Unpaid Cash Dividends as of such date. The right of conversion may
be exercised as to all or any portion of such Holder’s Series A Preferred Stock from time to time.
(b) The
Company shall at all times reserve and keep available out of its authorized and unissued Common Stock, solely for issuance upon the conversion
of the Series A Preferred Stock, the maximum number of shares of Common Stock as shall from time to time be issuable upon the conversion
of all the shares of Series A Preferred Stock then outstanding. Any shares of Common Stock issued upon conversion of Series A Preferred
Stock shall be duly authorized, validly issued, fully paid and nonassessable.
Section
7. Right of Company to Convert.
(a) At
any time from and after 90 days following the Original Issuance Date, if the Closing Price per share of Common Stock is greater
than the Mandatory Conversion Price for any twenty (20) Trading Days within any period of thirty (30) consecutive Trading Days (such thirty
(30) Trading Day period, the “Trading Period”), the Company may elect, in its discretion, to convert (a “Mandatory
Conversion”) all, but not less than all, of the then-outstanding shares of Series A Preferred Stock into shares of Common Stock
(the date selected by the Company for any Mandatory Conversion pursuant to this Section 7(a), the “Mandatory Conversion
Date”). In the case of a Mandatory Conversion, (1) each share of Series A Preferred Stock then outstanding shall be converted
into the number of shares of Common Stock equal to the quotient of (A) the Original Issuance Price divided by (B) the Conversion
Price as of the Mandatory Conversion Date, and (2) any Unpaid Cash Dividends as of such date shall be settled in cash.
(b) Notice
of Mandatory Conversion. If the Company elects to effect a Mandatory Conversion, the Company shall, within twenty (20) Business Days
following the completion of the applicable Trading Period referred to in Section 7(a) above, provide notice of Mandatory Conversion
to each Holder (such notice, a “Notice of Mandatory Conversion”). For the avoidance of doubt, a Notice of Mandatory
Conversion does not limit a Holder’s right to convert on a Conversion Date prior to the Mandatory Conversion Date. The Mandatory
Conversion Date selected by the Company shall be no less than thirty (30) Business Days and no more than forty-five (45) Business Days
after the date on which the Company provides the Notice of Mandatory Conversion to the Holders. The Notice of Mandatory Conversion shall
state the Mandatory Conversion Date selected by the Company.
Section
8. Conversion Procedures and Effect of Conversion.
(a) Conversion
Procedure. A Holder must do each of the following in order to convert shares of Series A Preferred Stock:
(i) in
the case of a conversion pursuant to Section 6(a), complete and execute the conversion notice provided by the Conversion Agent
(the “Conversion Notice”), and deliver such notice to the Conversion Agent; provided, however that a Conversion
Notice may be conditional on the completion of a change of control or other corporate transaction;
(ii) follow
the applicable procedures of the Conversion Agent or The Depositary Trust Company, as applicable, to surrender to the Conversion Agent
the shares of Series A Preferred Stock to be converted;
(iii) if
required, furnish appropriate endorsements and transfer documents in a form reasonably acceptable to the Company; and
(iv) if
required, pay any stock transfer, documentary, stamp or similar taxes not payable by the Company pursuant to Section 18.
The foregoing clauses (ii),
(iii) and (iv) shall be conditions to the issuance of shares of Common Stock to the Holders in the event of a Mandatory
Conversion pursuant to Section 7 (but, for the avoidance of doubt, not to the Mandatory Conversion of the shares of Series A Preferred
Stock on the Mandatory Conversion Date, which such Mandatory Conversion shall be deemed to occur automatically on the applicable Conversion
Date). The Holder may, in respect of a Mandatory Conversion, deliver a notice to the Conversion Agent specifying, in respect of the deliverable
shares of Common Stock, a delivery method of either book-entry basis or through the facilities of The Depositary Trust Company (if eligible).
If no such notice is delivered, the Holder shall be deemed to have chosen delivery by book-entry.
The “Conversion Date”
means (A) with respect to conversion of any shares of Series A Preferred Stock at the option of any Holder pursuant to Section 6(a),
the date on which such Holder complies with the procedures in this Section 8(a) (including the satisfaction of any conditions to
conversion set forth in the Conversion Notice) and (B) with respect to Mandatory Conversion pursuant to Section 7(a), the Mandatory
Conversion Date.
(b) Effect
of Conversion. Effective immediately prior to the close of business on the Conversion Date applicable to any shares of Series A Preferred
Stock, Regular Dividends shall no longer accrue on any such shares of Series A Preferred Stock.
(c) Record
Holder of Underlying Securities as of Conversion Date. The Person or Persons entitled to receive the Common Stock and, to the extent
applicable, cash, securities or other property issuable upon conversion of Series A Preferred Stock on a Conversion Date shall be treated
for all purposes as the record holder(s) of such shares of Common Stock and/or cash, securities or other property as of the close of business
on such Conversion Date. As promptly as practicable on or after the Conversion Date and compliance by the applicable Holder with the relevant
procedures contained in Section 8(a) (and in any event no later than five (5) Trading Days thereafter; provided, however
that, if a written notice from the Holder in accordance with Section 8(a) specifies a date of delivery for any shares of Common
Stock, such shares shall be delivered on the date so specified, which shall be no earlier than the second (2nd) Business Day immediately
following the date of such notice (or such later date, not to exceed the fifth (5th) Business Day immediately following the date of such
notice, if, prior to the Conversion Date, the Transfer Agent has delivered written notice to the Holders of Series A Preferred Stock that
it is unable deliver shares of Common Stock within two (2) Business Days following any Conversion Date) and no later than the seventh
(7th) Business Day thereafter), the Company shall issue the number of whole shares of Common Stock issuable upon conversion and, to the
extent applicable, any cash, securities or other property issuable thereon. Such delivery of shares of Common Stock, securities or other
property shall be made by book-entry or, at the request of the Holder or through the facilities of The Depositary Trust Company (if eligible).
Any such certificate or certificates shall be delivered by the Company to the appropriate Holder on a book-entry basis, through the facilities
of The Depositary Trust Company (if eligible), or by mailing certificates evidencing the shares to the Holders, in each case at their
respective addresses as set forth in the Conversion Notice (in the case of a conversion pursuant to Section 6(a)) or in the records
of the Company or as set forth in a notice from the Holder to the Conversion Agent, as applicable (in the case of a Mandatory Conversion).
In the event that a Holder shall not by written notice designate the name in which shares of Common Stock and, to the extent applicable,
cash, securities or other property to be delivered upon conversion of shares of Series A Preferred Stock should be registered or paid,
or the manner in which such shares, cash, securities or other property should be delivered, the Company shall be entitled to register
and deliver such shares, securities or other property, and make such payment, in the name of the Holder and in the manner shown on the
records of the Company (or, if no such manner is shown on the records of the Company, in the manner chosen in good faith by the Board).
(d) Status
of Converted or Reacquired Shares. Shares of Series A Preferred Stock converted in accordance with this Certificate of Designation,
or otherwise acquired by the Company in any manner whatsoever, shall be retired promptly after the conversion or acquisition thereof and
shall not be reissued as shares of such series. All such shares shall, upon their retirement and any filing required by the DGCL, become
authorized but unissued shares of Preferred Stock, without designation as to series until such shares are once more designated by the
Board as part of a particular series pursuant to the provisions of the Certificate of Incorporation.
SECTION 9. [Reserved].
Section
10. Adjustments to the Conversion Price.
(a) Anti-Dilution
Adjustments. The Conversion Price will be subject to adjustment, without duplication, upon the occurrence of the following events,
except that the Company shall not make any adjustment to the Conversion Price if a Holder of the Series A Preferred Stock participates,
at the same time and upon the same terms as holders of Common Stock and solely as a result of holding shares of Series A Preferred Stock,
in any transaction described in this Section 10(a), without having to convert its Series A Preferred Stock, as if it held a number
of shares of Common Stock equal to the Original Issuance Price of each share of Series A Preferred Stock held by such Holder divided by
the then-current Conversion Price:
(i) Stock
Splits and Combinations. If the Company effects a stock split or a stock combination of the Common Stock (in each case, excluding
an issuance solely pursuant to a Reorganization Event, as to which Section 11 will apply), then the Conversion Price will be adjusted
based on the following formula:
where:
CP0 = the
Conversion Price in effect immediately before the close of business on the effective date of such stock split or stock combination, as
applicable;
CP1 = the
Conversion Price in effect immediately after the close of business on such effective date, as applicable;
OS0 = the
number of shares of Common Stock outstanding immediately before the close of business on such effective date, as applicable, without giving
effect to such stock split or stock combination; and
OS1 = the
number of shares of Common Stock outstanding immediately after giving effect to such stock split or stock combination.
If any stock split or stock
combination of the type described in this Section 10(a)(i) is declared or announced, but not so made, then the Conversion Price
will be readjusted, effective as of the date the Board, or any Officer acting pursuant to authority conferred by the Board, determines
not to effect such stock split or stock combination, to the Conversion Price that would then be in effect had such stock split or stock
combination not been declared or announced.
(ii) Rights,
Options and Warrants. If the Company distributes, to all or substantially all holders of Common Stock, rights, options or warrants
(other than rights issued or otherwise distributed pursuant to a stockholder rights plan) entitling such holders, for a period of not
more than forty-five (45) calendar days after the Record Date of such distribution, to subscribe for or purchase shares of Common Stock
at a price per share that is less than the average of the Closing Prices per share of Common Stock for the ten (10) consecutive Trading
Days ending on, and including, the Trading Day immediately before the date such distribution is announced, then the Conversion Price will
be decreased based on the following formula:
where:
CP0 = the
Conversion Price in effect immediately before the close of business on such Record Date;
CP1 = the
Conversion Price in effect immediately after the close of business on such Record Date;
OS = the number of shares
of Common Stock outstanding immediately before the close of business on such Record Date;
Y = a number of shares
of Common Stock obtained by dividing (x) the aggregate price payable to exercise such rights, options or warrants by (y) the average of
the Closing Price per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately
before the date such distribution is announced; and
X = the total number
of shares of Common Stock issuable pursuant to such rights, options or warrants;
provided, however, that (A)
the Conversion Price will not be adjusted pursuant to this Section 10(a)(ii) solely as a result of an Exempt Issuance and (B) the
issuance of shares of Common Stock issuable pursuant to the exercise, vesting or conversion of such rights, options or warrants will not
constitute an additional issuance or sale of Common Stock.
To the extent such rights, options
or warrants are not so distributed, the Conversion Price will be readjusted to the Conversion Price that would then be in effect had the
decrease to the Conversion Price for such distribution been made on the basis of only the rights, options or warrants, if any, actually
distributed. In addition, to the extent that shares of Common Stock are not delivered after the expiration of such rights, options or
warrants (including as a result of such rights, options or warrants not being exercised), the Conversion Price will be readjusted to the
Conversion Price that would then be in effect had the decrease to the Conversion Price for such distribution been made on the basis of
delivery of only the number of shares of Common Stock actually delivered upon exercise of such rights, option or warrants.
For purposes of this Section
10(a)(ii), in determining whether any rights, options or warrants entitle holders of Common Stock to subscribe for or purchase shares
of Common Stock at a price per share that is less than the average of the Closing Prices per share of Common Stock for the ten (10) consecutive
Trading Days ending on, and including, the Trading Day immediately before the date the distribution of such rights, options or warrants
is announced, and in determining the aggregate price payable to exercise such rights, options or warrants, there will be taken into account
any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value
of such consideration, if not cash, to be determined by the Board.
(iii) Distribution
Transactions and Other Distributed Property.
(A) Distributions
Other than Distribution Transactions. If the Company distributes shares of its Capital Stock, evidences of the Company’s indebtedness
or other assets or property of the Company, or rights, options or warrants to acquire the Company’s Capital Stock or other securities,
to all or substantially all holders of the Common Stock, excluding:
(I) rights,
options or warrants for which an adjustment to the Conversion Price is required pursuant to Section 10(a)(i) or Section 10(a)(ii);
(II) dividends
or distributions paid exclusively in cash;
(III) rights
issued or otherwise distributed pursuant to a stockholder rights plan, except to the extent provided in Section 10(c);
(IV) Distribution
Transactions for which an adjustment to the Conversion Price is required pursuant to Section 10(a)(iii)(B);
(V) a
distribution solely pursuant to a tender offer or exchange offer for shares of Common Stock, as to which Section 10(a)(iv) will
apply; and
(VI) a
distribution solely pursuant to a Reorganization Event, as to which Section 11 will apply,
then the Conversion Price
will be decreased based on the following formula:
where:
CP0 = the
Conversion Price in effect immediately before the close of business on the Record Date for such distribution;
CP1 = the
Conversion Price in effect immediately after the close of business on such Record Date;
SP = the average of
the Closing Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day
immediately before the Ex-Dividend Date for such distribution; and
FMV = the fair market
value (as determined by the Board), as of such Record Date, of the shares of Capital Stock, evidences of indebtedness, assets, property,
rights, options or warrants distributed per share of Common Stock pursuant to such distribution;
provided, however,
that, if FMV is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Conversion Price, each Holder will receive,
for each share of Series A Preferred Stock held by such Holder on such Record Date, at the same time and on the same terms as holders
of Common Stock, the amount and kind of shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants
that such Holder would have received in such distribution if such Holder had owned, on such Record Date, a number of shares of Common
Stock equal to the number of shares of Common Stock that would be issuable (determined in accordance with Section 6) in respect
of one (1) share of Series A Preferred Stock that is converted with a Conversion Date occurring on such Record Date (subject to the same
arrangements, if any, in such distribution not to issue or deliver a fractional portion of any Capital Stock, evidences of indebtedness,
assets, property, rights, options or warrants, but with such arrangement applying separately to each Holder and computed based on the
total number of shares of Series A Preferred Stock held by such Holder on such Record Date).
To the extent such distribution
is not so paid or made, the Conversion Price will be readjusted to the Conversion Price that would then be in effect had the adjustment
been made on the basis of only the distribution, if any, actually made or paid.
(B) Distribution
Transactions. If the Company engages in a Distribution Transaction in which it distributes or dividends shares of Capital Stock of
any class or series, or similar equity interests, of or relating to an Affiliate or Subsidiary or other business unit of the Company to
all or substantially all holders of the Common Stock (other than solely pursuant to (x) a Reorganization Event, as to which Section
11 will apply; or (y) a tender offer or exchange offer for shares of Common Stock, as to which Section 10(a)(iv) will apply),
and such Capital Stock or equity interests are listed or quoted (or will be listed or quoted upon the consummation of the transaction)
on a U.S. national securities exchange, then the Conversion Price will be decreased based on the following formula:
where:
CP0 = the
Conversion Price in effect immediately before the close of business on the Record Date for such Distribution Transaction;
CP1 = the
Conversion Price in effect immediately after the close of business on such Record Date;
SP = the average of
the Closing Prices per share of Common Stock for each Trading Day in the Distribution Transaction Valuation Period (as defined below);
and
FMV = the product of
(x) the average of the Closing Prices per share or unit of the Capital Stock or equity interests distributed in such Distribution Transaction
over the ten (10) consecutive Trading Day period (the “Distribution Transaction Valuation Period”) beginning on, and
including, the Ex-Dividend Date for such Distribution Transaction (such average to be determined as if references to Common Stock in the
definitions of “Closing Price,” “Trading Day” and “Market Disruption Event” were
instead references to such Capital Stock or equity interests) and (y) the number of shares or units of such Capital Stock or equity interests
distributed per share of Common Stock in such Distribution Transaction;
provided, however,
that in the event of a Distribution Transaction where the Majority Holders (as defined below) elect to engage in a Spin-Off Exchange Offer
(as defined below), and such Spin-Off Exchange Offer is completed pursuant to Section 10(d), then no adjustment to the Conversion
Price shall be made pursuant to this Section 10(a)(iii)(B).
The adjustment to the Conversion
Price pursuant to this Section 10(a)(iii)(B) will be calculated as of the close of business on the last Trading Day of the Distribution
Transaction Valuation Period that will be given effect immediately after the close of business on the Record Date for the Distribution
Transaction, with retroactive effect. If the Conversion Date for any share of Series A Preferred Stock to be converted occurs during the
Distribution Transaction Valuation Period, then, notwithstanding anything to the contrary in this Certificate of Designation, the Company
will, if necessary, delay the settlement of such conversion until the second (2nd) Business Day after the last Trading Day of the Distribution
Transaction Valuation Period.
To the extent any dividend
or distribution of the type described in Section 10(a)(iii)(B) is declared but not made or paid, the Conversion Price will be readjusted
to the Conversion Price that would then be in effect had the adjustment been made on the basis of only the dividend or distribution, if
any, actually made or paid.
(iv) Tender
Offers or Exchange Offers. If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange
offer for shares of Common Stock (other than solely pursuant to an odd-lot tender offer pursuant to Rule 13e-4(h)(5) under the Exchange
Act), and the value (determined as of the Expiration Time (as defined below) by the Board) of the cash and other consideration paid per
share of Common Stock in such tender or exchange offer exceeds the Closing Price per share of Common Stock on the Trading Day immediately
after the last date (the “Expiration Date”) on which tenders or exchanges may be made pursuant to such tender or exchange
offer (as it may be amended), then the Conversion Price will be decreased based on the following formula:
where:
CP0 = the
Conversion Price in effect immediately before the time (the “Expiration Time”) such tender or exchange offer expires;
CP1 = the
Conversion Price in effect immediately after the Expiration Time;
SP = the average of the
Closing Prices per share of Common Stock over the ten (10) consecutive Trading Day period (the “Tender/Exchange Offer Valuation
Period”) beginning on, and including, the Trading Day immediately after the Expiration Date;
OS0 = the number of shares
of Common Stock outstanding immediately before the Expiration Time (including all shares of Common Stock accepted for purchase or exchange
in such tender or exchange offer);
AC = the aggregate value
(determined as of the Expiration Time by the Board) of all cash and other consideration paid for shares of Common Stock purchased or exchanged
in such tender or exchange offer; and
OS1 = the
number of shares of Common Stock outstanding immediately after the Expiration Time (excluding all shares of Common Stock accepted for
purchase or exchange in such tender or exchange offer);
provided, however,
that the Conversion Price will in no event be adjusted up pursuant to this Section 10(a)(iv), except to the extent provided in
the immediately following paragraph. The adjustment to the Conversion Price pursuant to this Section 10(a)(iv) will be calculated
as of the close of business on the last Trading Day of the Tender/Exchange Offer Valuation Period but will be given effect immediately
after the Expiration Time, with retroactive effect. If the Conversion Date for any share of Series A Preferred Stock to be converted occurs
on the Expiration Date or during the Tender/Exchange Offer Valuation Period, then, notwithstanding anything to the contrary in this Certificate
of Designation, the Company will, if necessary, delay the settlement of such conversion until the second (2nd) Business Day after the
last Trading Day of the Tender/Exchange Offer Valuation Period.
To the extent such tender or
exchange offer is announced but not consummated (including as a result of being precluded from consummating such tender or exchange offer
under applicable law), or any purchases or exchanges of shares of Common Stock in such tender or exchange offer are rescinded, the Conversion
Price will be readjusted to the Conversion Price that would then be in effect had the adjustment been made on the basis of only the purchases
or exchanges of shares of Common Stock, if any, actually made, and not rescinded, in such tender or exchange offer.
(b) No
Adjustments in Certain Cases. Without limiting the operation of Section 6(a), the Company will not be required to adjust the
Conversion Price except pursuant to this Section 10. For the avoidance of doubt, no adjustment to the Conversion Price will be
made (the following, each an “Exempt Issuance”):
(i) upon
the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest
payable on securities of the Company and the investment of additional optional amounts in Common Stock under any plan in which purchases
are made at market prices on the date or dates of purchase, without discount, and whether or not the Company bears the ordinary costs
of administration and operation of the plan, including brokerage commissions;
(ii) upon
the issuance of any shares of Common Stock or options or rights to purchase such shares pursuant to any present or future employee, director,
consultant or officer equity incentive plan or program of or assumed by the Company or any of its Subsidiaries or of any employee agreements
or arrangements or programs;
(iii) except
as otherwise provided in Section 10(a), upon the issuance of any shares of Common Stock pursuant to exercise, vesting or conversion
of any option, warrant, right, restricted stock unit or exercisable, exchangeable or convertible security;
(iv) for
dividends or distributions declared or paid to holders of Common Stock in which the Holders participate;
(v) for
a change in the par value of the Common Stock; or
(vi) upon
the offer or the issuance of any shares of Series A Preferred Stock in exchange for shares of Common Stock.
(c) Stockholder
Rights Plans. If any shares of Common Stock are to be issued upon conversion of any Series A Preferred Stock and, at the time of such
conversion, the Company has in effect any stockholder rights plan, then the Holder of such Series A Preferred Stock will be entitled to
receive, in addition to, and concurrently with the delivery of, the consideration otherwise due upon such conversion, the rights set forth
in such stockholder rights plan, unless such rights have separated from the Common Stock at such time, in which case, and only in such
case, the Conversion Price will be adjusted pursuant to Section 10(a)(iii)(A) on account of such separation as if, at the time
of such separation, the Company had made a distribution of the type referred to in such Section 10(a)(iii)(A) to all holders of
Common Stock, subject to readjustment pursuant to Section 10(a)(iii)(A) if such rights expire, terminate or are redeemed. For the
avoidance of doubt, if the rights issued or otherwise distributed pursuant to any such stockholder rights plan have previously been issued
to the Holders of Series A Preferred Stock, then the foregoing sentence of this Section 10(c) shall not apply.
(d) Distribution
Transactions.
(i) In
the event the Company proposes to effect a Distribution Transaction, then, by written notice of the Holders constituting at least a majority
of the then-outstanding voting power of the Series A Preferred Stock (the “Majority Holders”) delivered to the Company
prior to the relevant Record Date, the Company will negotiate in good faith with such Majority Holders the terms and conditions of an
exchange offer described herein (the “Spin-Off Exchange Offer”), and in the event the Spin-Off Exchange Offer is completed,
then no adjustment to the Conversion Price shall be made pursuant to Section 10(a)(iii)(B).
(ii) In
connection with the Spin-Off Exchange Offer, each share of Series A Preferred Stock will be exchanged by the Company for one (1) share
of Mirror Preferred Stock and one (1) share of Exchange Preferred Stock. The Original Issuance Price of the Series A Preferred Stock will
be allocated between the shares of Mirror Preferred Stock and Exchange Preferred Stock in accordance with the relative fair market value
of the assets and businesses to be held by the Distributed Entity and the assets and businesses to be retained by the Company, as determined
in good faith by the Board after consultation with the Majority Holders.
(iii) The
Company and the Majority Holders will negotiate reasonably and in good faith and each will use its reasonable best efforts to agree on
mutually agreeable terms for the Spin-Off Exchange Offer, including, without limitation, the certificate of designation with respect to
the Mirror Preferred Stock and the certificate of designation with respect to the Exchange Preferred Stock, to reflect the fact that following
the completion of the Spin-Off Exchange Offer the adjustments to the Conversion Price will be based upon the common stock of the Company
and the common stock of the Distributed Entity, and that the rights, benefits, obligations and economic characteristics of the Series
A Preferred Stock will not be expanded or diminished as a result of the exchange of shares of Series A Preferred Stock for shares of Mirror
Preferred Stock and Exchange Preferred Stock. The exchange of Series A Preferred Stock for Exchange Preferred Stock in the Spin-Off Exchange
Offer shall be structured in a manner so as to qualify as a tax-free recapitalization within the meaning of Section 368(a) of the Code
to the maximum extent permitted by applicable law. The Company agrees for U.S. federal and applicable state and local income tax purposes
the shares of Mirror Preferred Stock and Exchange Preferred Stock shall be structured in a way not to be classified as “preferred
stock” within the meaning of Section 305 or Section 306 of the Code (or similar or analogous state or local income tax law) or “nonqualified
preferred stock” within the meaning of Section 351(g) of the Code.
(e) Determination
of the Number of Outstanding Shares of Common Stock. For purposes of Section 10(a), the number of shares of Common Stock outstanding
at any time will (1) include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock; and
(2) exclude shares of Common Stock held in the Company’s treasury (unless the Company pays any dividend or makes any distributions
on shares of Common Stock held in its treasury).
(f) Calculations.
All calculations with respect to the Conversion Price and adjustments thereto will be made to the nearest 1/100th of a cent (with 5/1,000ths
rounded downward).
(g) Notice
of Conversion Price Adjustments. Upon the effectiveness of any adjustment to the Conversion Price pursuant to Section 10(a)
or Section 10(b), the Company will promptly send notice to the Holders containing (1) a brief description of the transaction or
other event on account of which such adjustment was made; (2) the Conversion Price in effect immediately after such adjustment; and (3)
the effective time of such adjustment.
(h) Voluntary
Conversion Price Decreases.
(i) Generally.
To the extent permitted by law and applicable stock exchange rules, the Company, from time to time, may (but is not required to) decrease
the Conversion Price by any amount if (1) the Board determines that such decrease is in the Company’s best interest or that such
decrease is advisable to avoid or diminish any income tax imposed on holders of Common Stock or rights to purchase Common Stock as a result
of any dividend or distribution of shares (or rights to acquire shares) of Common Stock or any similar event; (2) such decrease is in
effect for a period of at least twenty (20) Business Days; and (3) such decrease is irrevocable during such period; provided, however,
that any such decrease that would be reasonably expected to result in any income tax imposed on holders of Series A Preferred Stock shall
require the affirmative vote, election or approval of the Majority Holders.
(ii) Notice
of Voluntary Decrease. If the Board determines to decrease the Conversion Price pursuant to Section 10(h)(i), then, no later
than the first Business Day of the related twenty (20) Business Day period referred to in Section 10(h)(i), the Company will send
notice to each Holder, the Transfer Agent and the Conversion Agent of such decrease to the Conversion Price, the amount thereof and the
period during which such decrease will be in effect.
(i) Successive
Adjustments. After an adjustment to the Conversion Price under this Section 10, any subsequent event requiring an adjustment
under this Section 10 shall cause an adjustment to each such Conversion Price as so adjusted.
(j) Multiple
Adjustments. For the avoidance of doubt, if an event occurs that would trigger an adjustment to the Conversion Price pursuant to this
Section 10 under more than one subsection hereof, such event, to the extent fully taken into account in a single adjustment, shall
not result in multiple adjustments hereunder; provided, however, that if more than one subsection of this Section 10
is applicable to a single event, the subsection shall be applied that produces the largest adjustment.
(k) Notice
of Adjustments. Whenever the Conversion Price is adjusted as provided under this Section 10, the Company shall as soon as reasonably
practicable following the occurrence of an event that requires such adjustment (or if the Company is not aware of such occurrence, as
soon as reasonably practicable after becoming so aware):
(i) compute
the adjusted applicable Conversion Price in accordance with this Section 10 and prepare and transmit to the Conversion Agent an
Officer’s Certificate setting forth the applicable Conversion Price, the method of calculation thereof, and the facts requiring
such adjustment and upon which such adjustment is based; and
(ii) provide
a written notice to the Holders of the occurrence of such event and a statement in reasonable detail setting forth the method by which
the adjustment to the applicable Conversion Price was determined and setting forth the adjusted applicable Conversion Price.
(l) Conversion
Agent. The Conversion Agent shall not at any time be under any duty or responsibility to any Holder to determine whether any facts
exist that may require any adjustment of the Conversion Price or with respect to the nature or extent or calculation of any such adjustment
when made, or with respect to the method employed in making the same. The Conversion Agent shall be fully authorized and protected in
relying on any Officer’s Certificate delivered pursuant to this Section 10(l) and any adjustment contained therein and the
Conversion Agent shall not be deemed to have knowledge of any adjustment unless and until it has received such certificate. The Conversion
Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any
securities or property, that may at the time be issued or delivered with respect to any Series A Preferred Stock and the Conversion Agent
makes no representation with respect thereto. The Conversion Agent shall not be responsible for any failure of the Company to issue, transfer
or deliver any shares of Common Stock pursuant to the conversion of Series A Preferred Stock or to comply with any of the duties, responsibilities
or covenants of the Company contained in this Section 10.
(m) Fractional
Shares. No fractional shares of Common Stock will be delivered to the Holders upon conversion. In lieu of any fractional shares to
which the Holders would otherwise be entitled, the number of shares of Common Stock to be issued upon conversion of the Preferred Stock
shall be rounded down to the nearest whole share. In order to determine whether the number of shares of Common Stock to be delivered to
a Holder upon the conversion of such Holder’s shares of Series A Preferred Stock will include a fractional share, such determination
shall be based on the aggregate number of shares of Series A Preferred Stock of such Holder that are being converted on any single Conversion
Date.
Section
11. Adjustment for Reorganization Events.
(a) Reorganization
Events. In the event of:
(i) any
reclassification, statutory exchange, merger, consolidation or other similar business combination of the Company with or into another
Person, in each case, pursuant to which at least a majority of the Common Stock is changed or converted into, or exchanged for, cash,
securities or other property of the Company or another Person;
(ii) any
sale, transfer, lease or conveyance to another Person of all or a majority of the property and assets of the Company, in each case pursuant
to which the Common Stock is converted into cash, securities or other property; or
(iii) any
statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition) or reclassification,
recapitalization or reorganization of the Common Stock into other securities; (each of which is referred to as a “Reorganization
Event”);
then each share of Series A
Preferred Stock outstanding immediately prior to such Reorganization Event will, without the approval or election of the Holders and subject
to Section 13, remain outstanding but shall become convertible into, out of funds legally available therefor, the number, kind
and amount of securities, cash and other property (the “Exchange Property”) (without any interest on such Exchange
Property and without any right to dividends or distribution on such Exchange Property which have a record date that is prior to the applicable
Conversion Date) that the Holder of such share of Series A Preferred Stock would have received in such Reorganization Event had such Holder
converted its shares of Series A Preferred Stock into the applicable number of shares of Common Stock immediately prior to the effective
date of the Reorganization Event using the Conversion Price applicable immediately prior to the effective date of the Reorganization Event
and the Original Issuance Price applicable at the time of such subsequent conversion; provided, however that the foregoing shall
not apply if such Holder is a Person with which the Company consolidated or into which the Company merged or which merged into the Company
or to which such sale or transfer was made, as the case may be (any such Person, a “Constituent Person”), or an Affiliate
of a Constituent Person, to the extent such Reorganization Event provides for different treatment of Common Stock held by such Constituent
Persons or such Affiliate thereof. If the kind or amount of securities, cash and other property receivable upon such Reorganization Event
is not the same for each share of Common Stock held immediately prior to such Reorganization Event by a Person (other than a Constituent
Person or an Affiliate thereof), then for the purpose of this Section 11(a), the kind and amount of securities, cash and other
property receivable upon conversion following such Reorganization Event will be deemed to be the weighted average of the types and amounts
of consideration received by the holders of Common Stock.
(b) Successive
Reorganization Events. The above provisions of this Section 11 shall similarly apply to successive Reorganization Events and
the provisions of Section 10 shall apply to any shares of Capital Stock received by the holders of the Common Stock in any such
Reorganization Event.
(c) Reorganization
Event Notice. The Company (or any successor) shall, no less than thirty (30) days prior to the anticipated effective date of any Reorganization
Event, provide written notice to the Holders of such occurrence of such event and of the kind and amount of the cash, securities or other
property that constitutes the Exchange Property. Failure to deliver such notice shall not affect the operation of this Section 11.
(d) Reorganization
Event Agreements. The Company shall not enter into any agreement for a transaction constituting a Reorganization Event unless such
agreement provides for or does not interfere with or prevent (as applicable) conversion of the Series A Preferred Stock into the Exchange
Property in a manner that is consistent with and gives effect to this Section 11.
Section
12. Voting Rights. Holders shall not be entitled to vote at or receive notice of any meeting of stockholders, except as
provided in Section 13 or as required by law.
Section
13. Consent Rights. For so long as any shares of Series A Preferred Stock remain outstanding, the Company shall not, and
shall cause its Subsidiaries not to, unless the Majority Holders otherwise approve, vote for or authorize, or otherwise waive any provision
of this Section 13:
(a) create
or authorize the creation of, or issue any equity or debt securities of the Company or any of its Subsidiaries (or rights exercisable
into equity securities of the Company or any of its Subsidiaries) that rank senior or pari passu to the rights of the Series A Preferred
Stock with respect to dividend rights and rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Company; or
(b) permit
any adverse change (including as a result of a merger, consolidation or other similar or extraordinary transaction) to the powers, preferences
or special rights of the Series A Preferred Stock set forth in the Certificate of Incorporation or bylaws, including by amendment, modification
or in any other manner that fails to give effect to the rights of the Holders as set forth in this Certificate of Designation, the Certificate
of Incorporation or bylaws, or otherwise required by applicable law.
Section
14. Term. Except as expressly provided in this Certificate of Designation, the shares of Series A Preferred Stock shall
not be redeemable or otherwise mature and the term of the Series A Preferred Stock shall be perpetual.
Section
15. No Sinking Fund. Shares of Series A Preferred Stock shall not be subject to or entitled to the operation of a retirement
or sinking fund.
Section
16. Transfer Agent, Conversion Agent, Registrar and Paying Agent. The duly appointed Transfer Agent, Conversion Agent, Registrar
and paying agent for the Series A Preferred Stock shall be the Company. The Company may, in its sole discretion, appoint any other Person
to serve as Transfer Agent, Conversion Agent, Registrar or paying agent for the Series A Preferred Stock and thereafter may remove or
replace such other Person at any time. Upon any such appointment or removal, the Company shall send notice thereof by first class mail,
postage prepaid, to the Holders.
Section
17. Replacement Certificates.
(a) Mutilated,
Destroyed, Stolen and Lost Certificates. If physical certificates evidencing the Series A Preferred Stock are issued, the Company
shall replace any mutilated certificate at the Holder’s expense upon surrender of that certificate to the Transfer Agent. The Company
shall replace certificates that become destroyed, stolen or lost at the Holder’s expense upon delivery to the Company and the Transfer
Agent of satisfactory evidence that the certificate has been destroyed, stolen or lost, together with any indemnity that may be required
by the Transfer Agent and the Company.
(b) Certificates
Following Conversion. If physical certificates representing the Series A Preferred Stock are issued, the Company shall not be required
to issue replacement certificates representing shares of Series A Preferred Stock on or after the Conversion Date applicable to such shares.
In place of the delivery of a replacement certificate following the applicable Conversion Date, the Transfer Agent, upon receipt of the
satisfactory evidence and indemnity described in clause (a) above, shall deliver the shares of Common Stock issuable upon conversion of
such shares of Series A Preferred Stock formerly evidenced by the physical certificate.
Section
18. Taxes.
(a) Transfer
Taxes. The Company shall pay any and all stock transfer, documentary, stamp and similar taxes (“Transfer Taxes”)
that may be payable in respect of any issuance or delivery of shares of Series A Preferred Stock or shares of Common Stock or other securities
issued on account of Series A Preferred Stock pursuant hereto or certificates representing such shares or securities. However, in the
case of conversion of Series A Preferred Stock, the Company shall not be required to pay any such tax that may be payable in respect of
any transfer involved in the issuance or delivery of shares of Series A Preferred Stock, shares of Common Stock or other securities to
a Beneficial Owner other than the Beneficial Owner of the Series A Preferred Stock immediately prior to such conversion, and shall not
be required to make any such issuance, delivery or payment unless and until the Person requesting such issuance, delivery or payment has
paid to the Company the amount of any such Transfer Tax or has established, to the satisfaction of the Company, that such Transfer Tax
has been paid or is not payable.
(b) Intended
Tax Treatment. For U.S. federal and applicable state and local income tax purposes (i) the shares of Series A Preferred Stock are
not intended to be classified as “preferred stock” within the meaning of Code Section 305, Treasury Regulation Section 1.305-5
or Code Section 306 (or similar or analogous state or local income tax law), (ii) if a conversion of shares of Series A Preferred Stock
into Common Stock is effected, such transaction is intended to be treated as a “reorganization” within the meaning of Section
368(a)(l)(E) of the Code (or similar or analogous state or local income tax law) whereby the Holder of each exchanged share of Series
A Preferred Stock is intended to be treated as transferring such share to the Company in exchange for Common Stock (such tax treatment
described in clauses (i) and (ii), together, the “Intended Tax Treatment”). The Company and each Holder shall file
all applicable income tax returns in accordance with the Intended Tax Treatment and not take any reporting position with respect to applicable
income taxes inconsistent with the Intended Tax Treatment unless otherwise required in connection with the good faith settlement or resolution
of any tax audit, contest or other procedure with a taxing authority or a change in law after the date hereof.
Section
19. Notices. All notices referred to herein shall be in writing and, unless otherwise specified herein, all notices hereunder
shall be deemed to have been given upon the earlier of receipt thereof or three (3) Business Days after the mailing thereof if sent by
registered or certified mail with postage prepaid, or by private courier service addressed: (i) if to the Company, to its principal executive
offices, (ii) if to any Holder, to such Holder at the mail or email address of such Holder as listed in the stock record books of the
Company (which may include the records of the Transfer Agent) or (iii) to such other mail or email address as the Company or any such
Holder, as the case may be, shall have designated by notice similarly given.
Section
20. Facts Ascertainable. When the terms of this Certificate of Designation refer to a specific agreement or other document
to determine the meaning or operation of a provision hereof, the Secretary of the Company shall maintain a copy of such agreement or document
at the principal executive offices of the Company and a copy thereof shall be provided free of charge to any Holder who makes a request
therefor. The Secretary of the Company shall also maintain a written record of the Issuance Date, the number of shares of Series A Preferred
Stock issued to a Holder and the date of each such issuance, and shall furnish such written record free of charge to any Holder who makes
a request therefor.
Section
21. Waiver. Notwithstanding any provision in this Certificate of Designation to the contrary, any provision contained herein
and any right of the Holders of Series A Preferred Stock granted hereunder may be waived as to all shares of Series A Preferred Stock
(and the Holders thereof) upon the vote, election or approval of the Holders holding a majority of the then-outstanding shares of Series
A Preferred Stock.
Section
22. Severability. If any term of the Series A Preferred Stock set forth herein is invalid, unlawful or incapable of being
enforced by reason of any rule of law or public policy, all other terms set forth herein which can be given effect without the invalid,
unlawful or unenforceable term will, nevertheless, remain in full force and effect, and no term herein set forth will be deemed dependent
upon any other such term unless so expressed herein.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company has caused this
Certificate of Designation to be executed this 29th day of September, 2023.
|
Envoy Medical, Inc. |
|
|
|
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By: |
/s/ Brent Lucas |
|
Name: |
Brent Lucas |
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Title: |
Chief Executive Officer and Director |
[Signature page to Certificate
of Designation]
Exhibit 10.2
AMENDMENT TO LETTER AGREEMENT
This Amendment (this “Amendment”),
dated as of September 29, 2023, by and among Anzu Special Acquisition Corp I, a Delaware corporation (the “Company”),
Anzu SPAC GP I LLC, a Delaware limited liability company (“Sponsor”) and each of the undersigned (each, an “Insider”
and, collectively, the “Insiders”) is to that certain Letter Agreement, dated as of March 1, 2021 (the “Letter
Agreement”), by and among the Company, the Sponsor and the Insiders. Capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in the Letter Agreement.
RECITALS
WHEREAS, Section 12 of the
Letter Agreement provides that the Letter Agreement may be amended only by an agreement in writing signed by the Sponsor and the Insiders;
and
WHEREAS, each of the Sponsor
and the Insiders desire to amend, and do hereby amend, the Letter Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration
of the foregoing recitals, the agreements set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Sponsor and the Insiders, intending to be legally bound, hereby agree as follows:
| 1. | Amendments to the Letter Agreement: |
(a) Section 7(a) of the Letter Agreement
is hereby amended and restated in its entirety as follows:
(a) The Sponsor and each Insider
agree that it, he or she shall not Transfer (as defined below) any Founder Shares (or shares of Common Stock issuable upon conversion
thereof) until the earlier of (A) six months after the completion of an initial Business Combination and (B) subsequent to the completion
of an initial Business Combination, (x) if the closing price of the Common Stock equals or exceeds $10.50 per share (as adjusted for stock
splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing
after the Company’s initial Business Combination or (y) the date on which the Company completes a liquidation, merger, capital stock
exchange, reorganization or other similar transaction that results in all of the Company’s stockholders having the right to exchange
their shares of Common Stock for cash, securities or other property (the “Founder Shares Lock-up Period”).
| 2. | References to the Letter Agreement. After giving effect
to this Amendment, unless the context otherwise requires, each reference in the Letter Agreement to “this Agreement,” “hereof,”
“hereunder,” “herein,” or words of like import referring to the Letter Agreement shall refer to the Letter Agreement
as amended by this Amendment. Except as specifically set forth above, the Letter Agreement shall remain unaltered and in full force and
effect and the respective terms, conditions or covenants thereof are hereby in all respects ratified and confirmed. Upon the execution
and delivery of this Amendment by the parties hereto, (a) this Amendment shall become immediately effective, and (b) this Amendment shall
be incorporated in, and become a part of, the Letter Agreement as set forth herein for all purposes of the Letter Agreement. |
| 3. | Other Miscellaneous Provisions. Sections 15 and 16
of the Letter Agreement shall apply to this Amendment as if set forth herein, mutatis mutandis. |
[Signatures Follow]
lN WlTNESS WHEREOF, the
parties have caused this Amendment to be duly executed as of the date first written above.
|
Sponsor: |
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ANZU SPAC GP I LLC |
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By: |
/s/ Whitney Haring-Smith |
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Name: |
Whitney Haring-Smith |
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Title: |
Managing Member |
/s/ Whitney Haring-Smith |
|
Name: Whitney Haring-Smith |
|
/s/ Priya Cherian Huskins |
|
Name: Priya Cherian Huskins |
|
/s/ Susan J. Kantor |
|
Name: Susan J. Kantor |
|
/s/ Diane L. Dewbrey |
|
Name: Diane L. Dewbrey |
|
/s/ Daniel J. Hirsch |
|
Name: Daniel J. Hirsch |
|
Exhibit 10.3
AMENDED AND RESTATED REGISTRATION RIGHTS
AND LOCK-UP AGREEMENT
This Amended and Restated Registration Rights and
Lock-Up Agreement (this “Agreement”) dated as of September 29, 2023 is among Anzu Special Acquisition Corp I, a Delaware
corporation (the “Company”), and the Holders (as defined below). Capitalized terms used but not defined herein have
the meanings assigned to them in the Business Combination Agreement dated as of April 17, 2023, as amended by Amendment No. 1, dated as
of May 12, 2023 and Amendment No. 2, dated as of August 31, 2023 (collectively, the “Business Combination Agreement”),
among the Company, Envoy Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and Envoy Medical Corporation, a
Minnesota corporation (“Envoy”).
WHEREAS, the Company, Merger Sub and Envoy are parties
to the Business Combination Agreement, pursuant to which, among other things, on the Closing Date, Merger Sub will merge (the “Merger”)
with and into Envoy, with Envoy surviving the Merger as a wholly owned subsidiary of the Company;
WHEREAS, the Company and the SPAC Holders (as defined
below), are parties to that certain Registration Rights Agreement, dated as of March 1, 2021 (the “Prior Agreement”)
and, pursuant to this Agreement, such parties wish to amend the name of the Prior Agreement to “Amended and Restated Registration
Rights and Lock-Up Agreement”;
WHEREAS, in connection with the Closing, the Company’s
name shall be changed from “Anzu Special Acquisition Corp I” to “Envoy Medical”;
WHEREAS, the Key Seller Stockholders (as defined
below) will receive, directly or indirectly, upon consummation of the Merger shares of Class A common stock, par value $0.0001 per share
(the “Common Stock”) or Series A Convertible Preferred Stock, par value $0.0001 per share (the “Series A Preferred
Stock”) of the Company, on the Closing Date pursuant to the Business Combination Agreement; and
WHEREAS, contingent upon Closing and effective as
of the Effective Time, the parties to the Prior Agreement desire to amend and restate the Prior Agreement in its entirety as set forth
herein in order to provide for certain rights and obligations included herein and to include the Key Seller Stockholders as new Holders.
NOW, THEREFORE, in consideration of the foregoing,
the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For purposes of
this Agreement, the following terms and variations thereof have the meanings set forth below:
“Adverse Disclosure” shall mean
any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Chief Executive Officer
or Chief Financial Officer of the Company or the Board, after consultation with outside counsel to the Company, (i) would be required
to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain
any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case
of any Prospectus and any preliminary Prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would
not be required to be made at such time if the Registration Statement were not being filed, declared effective or used, as the case may
be, and (iii) the Company has a bona fide business purpose for not making such information public.
“Agreement” shall have the meaning
given in the Preamble.
“Board” shall mean the Board
of Directors of the Company.
“Business Combination Agreement”
shall have the meaning given in the Preamble.
“Business Day” shall mean a day
other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.
“Change in Control” shall mean
the Transfer (whether by tender offer, merger, stock purchase, consolidation or other similar transaction), in one transaction or a series
of related transactions, to a person or group of affiliated persons of the Company’s voting securities if, after such transfer,
such person or group of affiliated persons would hold more than 50% of outstanding voting securities of the Company (or surviving entity)
or would otherwise have the power to control the board of directors of the Company or to direct the operations of the Company.
“Closing Price” of the Common
Stock on any date of determination means the closing sale price or, if no closing sale price is reported, the last reported sale price,
of the shares of the Common Stock on the Securities Exchange on such date. If the Common Stock is not traded on a Securities Exchange
on any date of determination, the Closing Price of the Common Stock on such date of determination means the closing sale price as reported
in the composite transactions for the principal United States securities exchange or automated quotation system on which the Common Stock
is so listed or quoted, or, if no closing sale price is reported, the last reported sale price on the principal United States securities
exchange or automated quotation system on which the Common Stock is so listed or quoted, or if the Common Stock is not so listed or quoted
on a United States securities exchange or automated quotation system, the last quoted bid price for the Common Stock in the over-the-counter
market as reported by OTC Markets Group Inc. or any similar organization, or, if that bid price is not available, the market price of
the Common Stock on that date as determined by an Independent Financial Advisor retained by the Company for such purpose.
“Commission” shall mean the Securities
and Exchange Commission.
“Common Stock” shall have the
meaning given in the Recitals.
“Company” shall have the meaning
given in the Preamble.
“Converted Common Stock” shall
mean shares of Common Stock issued or issuable pursuant to the conversion of any Series A Preferred Stock.
“Demand Registration” shall have
the meaning given in subsection 2.1.1.
“Demand Requesting Holder” shall
have the meaning given in subsection 2.1.1.
“Demanding Holders” shall have
the meaning given in subsection 2.1.1.
“Effectiveness Deadline” shall
have the meaning given in subsection 2.3.1.
“Envoy” shall have the meaning
given in the Preamble.
“Exchange Act” shall mean the
Securities Exchange Act of 1934, as it may be amended from time to time.
“Form S-1” shall mean a Registration
Statement on Form S-1 or any comparable successor form or forms thereto.
“Form S-3” shall mean a Registration
Statement on Form S-3 or any comparable successor form or forms thereto.
“Holders” shall mean the SPAC
Holders, the Key Seller Stockholders and any other holder of Registrable Securities that becomes a party to this Agreement pursuant to
Section 7.3.
“Independent Financial Advisor”
shall mean an accounting, appraisal, investment banking firm or consultant of nationally recognized standing; provided, however, that
such firm or consultant is not an Affiliate of the Company or the Holders.
“Key Seller Stockholders” shall
mean the Holders designated as “Key Seller Stockholders” on Schedule A and their Permitted Transferees.
“Lock-up Period” shall mean the
period beginning on the Closing Date and ending on the date that is six (6) months following the Closing Date; provided, however, that,
after the Closing Date, the Lock-up Period with respect to all Restricted Securities shall end on the earlier of (A) the date on which
the closing price of the Common Stock equals or exceeds $10.50 per share (as adjusted for stock splits, stock dividends, reorganizations,
recapitalizations and the like) for any 20 Trading Days within any 30-Trading Day period commencing after the Closing Date, or (B) such
date on which the Company completes a liquidation, merger, stock exchange or other similar transaction that results in all of the Company’s
stockholders having the right to exchange their shares of Common Stock for cash, securities or other property.
“Market Disruption Event” shall
mean any of the following events:
(a) any suspension of, or limitation imposed on,
trading of the Common Stock by any exchange or quotation system on which the Closing Price is determined pursuant to the definition of
the term “Closing Price” (the “Relevant Exchange”) during the one-hour period
prior to the close of trading for the regular trading session on the Relevant Exchange and whether by reason of movements in price exceeding
limits permitted by the Relevant Exchange as to securities generally, or otherwise relating to the Common Stock or options contracts relating
to the Common Stock on the Relevant Exchange; or
(b) any event that disrupts or impairs (as determined
by the Company in its reasonable discretion) the ability of market participants during the one-hour period prior to the close of trading
for the regular trading session on the Relevant Exchange in general to effect transactions in, or obtain market values for, the Common
Stock on the Relevant Exchange or to effect transactions in, or obtain market values for, options contracts relating to the Common Stock
on the Relevant Exchange.
“Maximum Number of Securities”
shall have the meaning given in subsection 2.1.4.
“Merger” shall have the meaning
given in the Recitals.
“Merger Sub” shall have the meaning
given in the Preamble.
“Misstatement” shall mean an
untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus,
or necessary to make the statements in a Registration Statement or Prospectus in the light of the circumstances under which they were
made not misleading.
“New Registration Statement”
shall have the meaning given in subsection 2.3.4.
“Permitted Transferees” shall
mean, prior to the expiration of a Lock-up Period, any person or entity to whom a Holder is permitted to Transfer Restricted Securities
prior to the expiration of the Lock-up Period applicable to such Holder pursuant to Section 5.2.
“Piggyback Registration” shall
have the meaning given in subsection 2.3.1.
“Prior Agreement” shall have
the meaning given in the Recitals.
“Pro Rata” shall have the meaning
given in subsection 2.1.4.
“Prospectus” shall mean the prospectus
included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective
amendments and including all material incorporated by reference in such prospectus.
“Registrable Security”, “Registrable
Securities” shall mean (a) the SPAC Warrants (including any shares of Common Stock issued or issuable upon the exercise of any
such warrants) beneficially owned or owned of record by a Holder, (b) any outstanding share of Common Stock or any other equity security
(including the shares of Common Stock issued or issuable upon the exercise of any other equity security) of the Company held beneficially
owned or owned of record by a Holder as of the Closing Date (including the shares of Common Stock issued pursuant to the Business Combination
Agreement), (c) Converted Common Stock, (d) any shares of Common Stock issued or issuable upon the exercise of any Company Warrant held
beneficially owned or owned of record by a Holder as of the Closing Date, and (e) any other equity security of the Company issued or issuable
with respect to any such share of Common Stock by way of a stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or reorganization; provided, however, that, as to any particular Registrable Security, such securities
shall cease to be Registrable Securities when: (A) a Registration Statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with
such Registration Statement; (B) such securities shall have been otherwise transferred, new certificates or evidence of book-entry entitlements
for such securities not bearing a legend restricting further transfer shall have been delivered by the Company to the transferee, and
subsequent public distribution of such securities shall not require registration under the Securities Act; (C) such securities shall have
ceased to be outstanding; (D) such securities, together with all other Registrable Securities held by any Holder, represent less than
1% of the total outstanding Common Stock of the Company; (E) such securities may be sold without registration pursuant to Rule 144 or
any successor rule promulgated under the Securities Act (but with no volume or other restrictions or limitations including as to manner
or timing of sale); or (F) such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or
other public securities transaction.
“Registration” shall mean a registration
effected by preparing and filing a registration statement or similar document in compliance with the requirements of the Securities Act,
and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
“Registration Expenses” shall
mean the documented out-of-pocket expenses of a Registration or Underwritten Offering, including, without limitation, the following:
(a) all registration and filing fees (including
fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.) and any national securities exchange
on which the Common Stock is then listed;
(b) fees and expenses of compliance with securities
or blue sky laws (including reasonable fees and disbursements of counsel for the Underwriters in connection with blue sky qualifications
of Registrable Securities);
(c) printing, messenger, telephone and delivery
expenses;
(d) reasonable fees and disbursements of counsel
for the Company;
(e) reasonable fees and disbursements of all independent
registered public accountants of the Company incurred specifically in connection with such Registration or Underwritten Offering; and
(f) reasonable fees and expenses of one (1) legal
counsel selected by the majority-in-interest of the Demanding Holders or the majority-in interest of the Takedown Requesting Holders,
as applicable.
Notwithstanding the foregoing, under no circumstances
shall the Company be obligated to pay any fees, discounts and/or commissions to any Underwriter or broker with respect to the Registrable
Securities.
“Registration Statement” shall
mean any registration statement that covers the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus
included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement,
and all exhibits to and all material incorporated by reference in such registration statement.
“Requesting Holder” shall have
the meaning given in subsection 2.3.5.
“Relevant Exchange” shall have
the meaning set forth in the definition of the term “Market Disruption Event”.
“Resale Shelf Registration Statement”
shall have the meaning given in subsection 2.3.1.
“Restricted Securities” shall
mean with respect to any Restricted Stockholder and its respective Permitted Transferees:
(a) any Common Stock to be received by such Holder
at the Effective Time as Aggregate Closing Merger Consideration;
(b) any Common Stock to be issued to such Holder
pursuant to the exercise of any Company Warrant held by such Holder immediately prior to the Effective Time; and
(c) any Common Stock to be issued to such Holder
pursuant to the conversion of any Company Convertible Note held by such Holder immediately prior to the Effective Time.
“Restricted Stockholders” shall
mean the Holders designated as “Restricted Stockholders” on Schedule A and their Permitted Transferees.
“SEC Guidance” shall have the
meaning given in subsection 2.3.4.
“Securities Act” shall mean the
Securities Act of 1933, as amended from time to time.
“Securities Exchange” shall mean
The Nasdaq Capital Market (or any nationally recognized successor thereto); provided, however, that in the event the Company’s Common
Stock is ever listed or traded on the New York Stock Exchange, the NYSE American, the NYSE Arca, The Nasdaq Global Market or The Nasdaq
Global Select Market (or any nationally recognized successor to any of the foregoing), then the “Securities Exchange”
shall mean such other market or exchange on which the Company’s Common Stock is then listed or traded.
“Series A Preferred Stock” shall
have the meaning given in the Recitals.
“SPAC Holders” shall mean the
Holders designated as “SPAC Holders” on Schedule A.
“Sponsor” shall mean Anzu SPAC
GP I LLC, a Delaware limited liability company.
“Takedown Requesting Holder”
shall have the meaning given in subsection 2.3.5.
“Trading Day” shall mean a Business
Day on which the Relevant Exchange is scheduled to be open for business and on which there has not occurred a Market Disruption Event.
“Transfer” shall mean to, directly
or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, or
to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance,
hypothecation or similar disposition of, any interest owned by a person or any interest (including a beneficial interest) in, or the ownership,
control or possession of, any interest owned by a person.
“Underwriter” shall mean a securities
dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such dealer’s market-making
activities.
“Underwritten Registration” or
“Underwritten Offering” shall mean a Registration in which securities of the Company are sold to an Underwriter in
a firm commitment underwriting for distribution to the public, including for the avoidance of doubt an Underwritten Shelf Takedown.
“Underwritten Shelf Takedown”
shall have the meaning given in subsection 2.3.5.
ARTICLE II
REGISTRATION
Section 2.1 Demand Registration.
2.1.1 Request for Registration. Subject to
the provisions of subsection 2.1.4 and Section 2.4 hereof, at any time and from time to time following the Effective Time (but subject
to Article V), (i) Key Seller Stockholders holding at least a majority-in-interest of the then-outstanding number of Registrable Securities
held by all Key Seller Stockholders, or (ii) the Sponsor (such Key Seller Stockholders or the Sponsor, as the case may be, the “Demanding
Holders”) may make a written demand for Registration of all or part of their Registrable Securities on Form S-3 (or, if Form
S-3 is not available to be used by the Company at such time, on Form S-1 or another appropriate form permitting Registration of such Registrable
Securities for resale by such Demanding Holders), which written demand shall describe the amount and type of securities to be included
in such Registration and the intended method(s) of distribution thereof (such written demand a “Demand Registration”).
The Company shall, within ten (10) days of the Company’s receipt of the Demand Registration, notify, in writing, all other Holders
of Registrable Securities of such demand, and each Holder of Registrable Securities who thereafter wishes to include all or a portion
of such Holder’s Registrable Securities in a Registration pursuant to a Demand Registration (each such Holder that includes all
or a portion of such Holder’s Registrable Securities in such Registration, a “Demand Requesting Holder”) shall
so notify the Company, in writing, within five (5) days after the receipt by the Holder of the notice from the Company. Upon receipt by
the Company of any such written notification from a Demand Requesting Holder(s) to the Company, such Demand Requesting Holder(s) shall
be entitled to have their Registrable Securities included in a Registration pursuant to a Demand Registration and the Company shall effect,
as soon thereafter as practicable, but not more than sixty (60) days immediately after the Company’s receipt of the Demand Registration,
the Registration of all Registrable Securities requested by the Demanding Holders and Demand Requesting Holders pursuant to such Demand
Registration. Under no circumstances shall the Company be obligated to effect more than an aggregate of (i) three (3) Registrations pursuant
to a Demand Registration under this subsection 2.1.1 initiated by Key Seller Stockholders, or (ii) one (1) Registration pursuant to a
Demand Registration under this subsection 2.1.1 initiated by the Sponsor.
2.1.2 Effective Registration. Notwithstanding
the provisions of subsection 2.1.1 above or any other part of this Agreement, a Registration pursuant to a Demand Registration shall not
count as a Registration unless and until (i) the Registration Statement filed with the Commission with respect to a Registration pursuant
to a Demand Registration has been declared effective by the Commission and (ii) the Company has complied with all of its obligations under
this Agreement with respect thereto; provided, further, however, that if, after such Registration Statement has been declared effective,
an offering of Registrable Securities in a Registration pursuant to a Demand Registration is subsequently interfered with by any stop
order or injunction of the Commission, federal or state court or any other governmental agency, the Registration Statement with respect
to such Registration shall be deemed not to have been declared effective for purposes of counting Registrations under subsection 2.1.1
above unless and until (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority-in-interest
of the Demanding Holders initiating such Demand Registration thereafter affirmatively elect to continue with such Registration and accordingly
notify the Company in writing, but in no event later than five (5) days, of such election; provided, further, however, that the Company
shall not be obligated or required to file another Registration Statement until the Registration Statement that has been previously filed
with respect to a Registration pursuant to a Demand Registration becomes effective or has been terminated.
2.1.3 Underwritten Offering. Subject to the
provisions of subsection 2.1.4 and Section 2.4 hereof, if a majority-in-interest of the Demanding Holders advise the Company as part of
their Demand Registration that the offering of the Registrable Securities pursuant to such Demand Registration shall be in the form of
an Underwritten Offering, then the right of each Demanding Holder or Demand Requesting Holder (if any) to include its Registrable Securities
in such Registration shall be conditioned upon such Holder’s participation in such Underwritten Offering and the inclusion of such
Holder’s Registrable Securities in such Underwritten Offering to the extent provided herein. All such Holders proposing to distribute
their Registrable Securities through an Underwritten Offering under this subsection 2.1.3 shall enter into an underwriting agreement in
customary form with the Underwriter(s) selected for such Underwritten Offering by the Company, which Underwriter(s) shall be reasonably
acceptable to a majority-in-interest of the Demanding Holders initiating the Demand Registration.
2.1.4 Reduction of Underwritten Offering.
If the managing Underwriter or Underwriters in an Underwritten Registration pursuant to a Demand Registration, in good faith, advises
the Company, the Demanding Holders and the Demand Requesting Holders (if any) in writing that the dollar amount or number of Registrable
Securities that the Demanding Holders and the Demand Requesting Holders (if any) desire to sell, taken together with all other Common
Stock or other equity securities that the Company desires to sell and the Common Stock, if any, as to which a Registration has been requested
pursuant to separate written contractual piggy-back registration rights held by any other stockholders who desire to sell, exceeds the
maximum dollar amount or maximum number of equity securities that can be sold in the Underwritten Offering without adversely affecting
the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar
amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then the Company shall
include in such Underwritten Offering, as follows: (i) first, the Registrable Securities of the Demanding Holders and the Demand Requesting
Holders (if any) (pro rata based on the respective number of Registrable Securities that each Demanding Holder and Demand Requesting Holder
(if any) has requested be included in such Underwritten Registration and the aggregate number of Registrable Securities that the Demanding
Holders and Demand Requesting Holders have requested be included in such Underwritten Registration (such proportion is referred to herein
as “Pro Rata”)) that can be sold without exceeding the Maximum Number of Securities; (ii) second, to the extent that
the Maximum Number of Securities has not been reached under the foregoing clause (i), Common Stock or other equity securities that the
Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (iii) third, to the extent that the
Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), Common Stock or other equity securities of
other persons or entities that the Company is obligated to register in a Registration pursuant to separate written contractual arrangements
with such persons and that can be sold without exceeding the Maximum Number of Securities.
2.1.5 Demand Registration Withdrawal. A majority-in-interest
of the Key Seller Stockholders or the Sponsor, as the case may be, in the case of a Registration under subsection 2.1.1 initiated by the
Key Seller Stockholders or the Sponsor, as the case may be, or a majority-in-interest of the Demand Requesting Holders (if any) shall
have the right to withdraw from a Registration pursuant to such Demand Registration for any or no reason whatsoever upon written notification
to the Company and the Underwriter(s) (if any) of their intention to withdraw from such Registration prior to the effectiveness of the
Registration Statement filed with the Commission with respect to the Registration of their Registrable Securities pursuant to such Demand
Registration. If a majority-in-interest of the Demanding Holders initiating a Demand Registration or a majority-in-interest of the Demand
Requesting Holders (if any) withdraws from a proposed offering pursuant to this Section 2.1.5, then such registration shall not count
as a Demand Registration provided for in Section 2.1. Notwithstanding anything to the contrary in this Agreement, the Company shall be
responsible for the Registration Expenses incurred in connection with a Registration pursuant to a Demand Registration prior to its withdrawal
under this subsection 2.1.5.
Section 2.2 Piggyback Registration.
2.2.1 Piggyback Rights. If the Company proposes
to file a Registration Statement under the Securities Act with respect to an offering of equity securities, or securities or other obligations
exercisable or exchangeable for, or convertible into equity securities, for its own account or for the account of stockholders of the
Company (or by the Company and by the stockholders of the Company including, without limitation, pursuant to Section 2.1), other than
a Registration Statement (i) filed in connection with any employee stock option or other benefit plan, (ii) for an exchange offer or offering
of securities solely to the Company’s existing stockholders, (iii) for an offering of debt that is convertible into equity securities
of the Company, (iv) for a dividend reinvestment plan, (v) a Form S-4 (or any successor form thereto) in connection with a business combination,
or (vi) filed in connection with an equity line of credit or at-the-market equity offering, then the Company shall give written notice
of such proposed filing to the Holders of Registrable Securities whose applicable Lock-up Period has expired as soon as practicable but
not less than ten (10) days before the anticipated filing date of such Registration Statement, which notice shall (A) describe the amount
and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing
Underwriter(s), if any, in such offering, and (B) offer to the Holders of Registrable Securities whose applicable Lock-up Period has expired
the opportunity to register the sale of such number of Registrable Securities as such Holders may request in writing within five (5) days
after receipt of such written notice (such Registration a “Piggyback Registration”). The Company shall, in good faith,
cause such Registrable Securities to be included in such Piggyback Registration and shall use its commercially reasonable efforts to cause
the managing Underwriter(s) of a proposed Underwritten Offering to permit the Registrable Securities requested by such Holders pursuant
to this subsection 2.2.1 to be included in a Piggyback Registration on the same terms and conditions as any similar securities of the
Company included in such Registration and to permit the sale or other disposition of such Registrable Securities in accordance with the
intended method(s) of distribution thereof. All such Holders proposing to distribute their Registrable Securities through an Underwritten
Offering under this subsection 2.2.1 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for
such Underwritten Offering by the Company.
2.2.2 Reduction of Piggyback Registration.
If the managing Underwriter(s) in an Underwritten Registration that is to be a Piggyback Registration, in good faith, advises the Company
and the Holders of Registrable Securities participating in the Piggyback Registration in writing that the dollar amount or number of shares
of Common Stock that the Company desires to sell, taken together with (i) the shares of Common Stock, if any, as to which Registration
has been demanded pursuant to separate written contractual arrangements with persons or entities other than the Holders of Registrable
Securities hereunder, (ii) the Registrable Securities as to which registration has been requested pursuant to Section 2.2 hereof, and
(iii) the shares of Common Stock, if any, as to which Registration has been requested pursuant to separate written contractual piggy-back
registration rights of other stockholders of the Company, exceeds the Maximum Number of Securities, then:
(i) If the Registration is undertaken for the Company’s
account, the Company shall include in any such Registration (A) first, Common Stock or other equity securities that the Company desires
to sell, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities
has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable
Securities pursuant to subsection 2.2.1 hereof, pro rata, based on the respective number of Registrable Securities that each Holder has
so requested, which can be sold without exceeding the Maximum Number of Securities; and (C) third, to the extent that the Maximum Number
of Securities has not been reached under the foregoing clauses (A) and (B), Common Stock, if any, as to which Registration has been requested
pursuant to written contractual piggy-back registration rights of other stockholders of the Company, which can be sold without exceeding
the Maximum Number of Securities; and
(ii) If the Registration is pursuant to a request
by persons or entities other than the Holders of Registrable Securities, then the Company shall include in any such Registration (A) first,
Common Stock or other equity securities, if any, of such requesting persons or entities, other than the Holders of Registrable Securities,
which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities
has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable
Securities pursuant to subsection 2.2.1, pro rata based on the respective number of Registrable Securities that each Holder has requested
be included in such Underwritten Registration and the aggregate number of Registrable Securities that the Holders have requested to be
included in such Underwritten Registration, which can be sold without exceeding the Maximum Number of Securities; (C) third, to the extent
that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), Common Stock or other equity securities
that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (D) fourth, to the extent
that the Maximum Number of Securities has not been reached under the foregoing clauses (A), (B) and (C), Common Stock or other equity
securities for the account of other persons or entities that the Company is obligated to register pursuant to separate written contractual
arrangements with such persons or entities, which can be sold without exceeding the Maximum Number of Securities.
2.2.3 Piggyback Registration Withdrawal.
Any Holder of Registrable Securities shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon
written notification to the Company and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw from such Piggyback
Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Piggyback Registration.
The Company (whether on its own good faith determination or as the result of a request for withdrawal by persons pursuant to separate
written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration
at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement, the
Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal
under this subsection 2.2.3.
2.2.4 Unlimited Piggyback Registration Rights.
For purposes of clarity, any Registration effected pursuant to Section 2.2 hereof shall not be counted as a Registration pursuant to a
Demand Registration effected under Section 2.1 hereof, and there shall be no limit on the number of Piggyback Registrations.
2.2.5 Right to Terminate Registration. The
Company shall have the right to terminate or withdraw any registration initiated by it under this Section 2.2 prior to the effectiveness
of such registration whether or not any Holder of Registrable Securities has elected to include securities in such registration.
Section 2.3 Resale Shelf Registration Rights
2.3.1 Registration Statement Covering Resale
of Registrable Securities. The Company shall, as promptly as reasonably practicable, but in no event later than sixty (60) days after
the Closing Date (the “Filing Deadline”), use its commercially reasonable efforts to prepare and file or cause to be
prepared and filed with the Commission a Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415
of the Securities Act or any successor thereto registering the resale from time to time by Holders of all of the Registrable Securities
held by the Holders (the “Resale Shelf Registration Statement”), which Registration Statement may also include any
other securities the Company is required to register pursuant to contractual registration rights. The Resale Shelf Registration Statement
shall be on Form S-3 (or, if Form S-3 is not available to be used by the Company at such time, on Form S-1 or another appropriate form
permitting Registration of such Registrable Securities for resale). If the Resale Shelf Registration Statement is initially filed on Form
S-1 and thereafter the Company becomes eligible to use Form S-3 for secondary sales, the Company shall, as promptly as practicable, cause
such Resale Shelf Registration Statement to be amended, or shall file a new replacement Resale Shelf Registration Statement, such that
the Resale Shelf Registration Statement is on Form S-3. The Company shall use its commercially reasonable efforts to cause the Resale
Shelf Registration Statement to be declared effective as soon as practicable after filing, but in no event later than ninety (90) days
following the Filing Deadline (the “Effectiveness Deadline”); provided, however, that the Effectiveness Deadline shall
be extended to one hundred fifty (150) days after the Filing Deadline if the Registration Statement is reviewed by, and receives comments
from, the Commission; provided, however, that the Company’s obligations to include the Registrable Securities held by a Holder in
the Resale Shelf Registration Statement are contingent upon such Holder furnishing in writing to the Company such information regarding
the Holder, the securities of the Company held by the Holder and the intended method of disposition of the Registrable Securities as shall
be reasonably requested by the Company to effect the registration of the Registrable Securities, and the Holder 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;
provided, further, that if the Effectiveness Deadline falls on a day which is not a Business Day or other day that the Commission is closed
for business, the Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business. Once
effective, the Company shall use commercially reasonable efforts to keep the Resale Shelf Registration Statement and Prospectus included
therein continuously effective and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is
available or, if not available, to ensure that another Registration Statement is available, under the Securities Act at all times until
the earliest of (i) the first date on which the Registrable Securities and other securities covered by such Registration Statement may
be resold within ninety (90) days without limitation by the volume or manner of sale limitations pursuant to Rule 144 promulgated under
the Securities Act, (ii) the date on which all of the Registrable Securities have actually been sold pursuant to Rule 144 or pursuant
to the Registration Statement, (iii) the date which is two years after the Closing Date, and (iv) the date on which all Registrable Securities
and other securities covered by such Registration Statement have ceased to be Registrable Securities. The Registration Statement filed
with the Commission pursuant to this subsection 2.3.1 shall contain a prospectus in such form as to permit any Holder to sell such Registrable
Securities pursuant to Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect)
at any time beginning on the effective date for such Registration Statement (subject to lock-up restrictions provided in Section 5.1 of
this Agreement), and shall provide that such Registrable Securities may be sold pursuant to any method or combination of methods legally
available to, and requested by, Holders.
2.3.2 Notification and Distribution of Materials.
The Company shall notify the Holders in writing of the effectiveness of the Resale Shelf Registration Statement as soon as practicable,
and in any event within one (1) Business Day after the Resale Shelf Registration Statement becomes effective, and shall furnish to them,
without charge, such number of copies of the Resale Shelf Registration Statement (including any amendments, supplements and exhibits),
the Prospectus contained therein (including each preliminary prospectus and all related amendments and supplements) and any documents
incorporated by reference in the Resale Shelf Registration Statement or such other documents as the Holders may reasonably request in
order to facilitate the sale of the Registrable Securities in the manner described in the Resale Shelf Registration Statement (to the
extent that any of such documents is not available on EDGAR).
2.3.3 Amendments and Supplements. Subject
to the provisions of Section 2.3.1 above, the Company shall promptly prepare and file with the Commission from time to time such amendments
and supplements to the Resale Shelf Registration Statement and Prospectus used in connection therewith as may be necessary to keep the
Resale Shelf Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition
of all the Registrable Securities. If any Resale Shelf Registration Statement filed pursuant to Section 2.3.1 is filed on Form S-3 and
thereafter the Company becomes ineligible to use Form S-3 for secondary sales, the Company shall promptly notify the Holders of such ineligibility
and use its best efforts to file a shelf registration on an appropriate form as promptly as practicable to replace the shelf registration
statement on Form S-3 and have such replacement Resale Shelf Registration Statement declared effective as promptly as practicable and
to cause such replacement Resale Shelf Registration Statement to remain effective, and to be supplemented and amended to the extent necessary
to ensure that such Resale Shelf Registration Statement is available or, if not available, that another Resale Shelf Registration Statement
is available, for the resale of all the Registrable Securities held by the Holders until all such Registrable Securities have ceased to
be Registrable Securities; provided, however, that at any time the Company once again becomes eligible to use Form S-3, the Company shall
cause such replacement Resale Shelf Registration Statement to be amended, or shall file a new replacement Resale Shelf Registration Statement,
such that the Resale Shelf Registration Statement is once again on Form S-3.
2.3.4 SEC Cutback. Notwithstanding the registration
obligations set forth in this Section 2.3, in the event the Commission informs the Company that all of the Registrable Securities cannot,
as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company
agrees to promptly (i) inform each of the Holders thereof and use its commercially reasonable efforts to file amendments to the Resale
Shelf Registration Statement as required by the Commission and/or (ii) withdraw the Resale Shelf Registration Statement and file a new
registration statement (a “New Registration Statement”) on Form S-3, or if Form S-3 is not then available to the Company
for such registration statement, on such other form available to register for resale the Registrable Securities as a secondary offering;
provided, however, that prior to filing such amendment or New Registration Statement, the Company shall use its commercially reasonable
efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with any publicly-available
written or oral guidance, comments, requirements or requests of the Commission staff (the “SEC Guidance”). Notwithstanding
any other provision of this Agreement, if any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to
be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts
to advocate with the Commission for the registration of all or a greater number of Registrable Securities), unless otherwise directed
in writing by a Holder as to further limit its Registrable Securities to be included on the Registration Statement, the number of Registrable
Securities to be registered on such Registration Statement will be reduced on a pro rata basis based on the total number of Registrable
Securities held by the Holders, subject to a determination by the Commission that certain Holders must be reduced first based on the number
of Registrable Securities held by such Holders. In the event the Company amends the Resale Shelf Registration Statement or files a New
Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its commercially reasonable efforts
to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities
in general, one or more registration statements on Form S-3 or such other form available to register for resale those Registrable Securities
that were not registered for resale on the Resale Shelf Registration Statement, as amended, or the New Registration Statement.
2.3.5 Underwritten Shelf Takedown. At any
time and from time to time after a Resale Shelf Registration Statement has been declared effective by the Commission, the Holders may
request to sell all or any portion of the Registrable Securities in an underwritten offering that is registered pursuant to the Resale
Shelf Registration Statement (each, an “Underwritten Shelf Takedown”); provided, however, that the Company shall only
be obligated to effect an Underwritten Shelf Takedown if such offering shall include securities with a total offering price (including
piggyback securities and before deduction of underwriting discounts) reasonably expected to exceed, in the aggregate, $10,000,000. All
requests for Underwritten Shelf Takedowns shall be made by giving written notice to the Company at least ten (10) days prior to the public
announcement of such Underwritten Shelf Takedown, which shall specify the approximate number of Registrable Securities proposed to be
sold in the Underwritten Shelf Takedown and the expected price range (net of underwriting discounts and commissions) of such Underwritten
Shelf Takedown. The Company shall include in any Underwritten Shelf Takedown the securities requested to be included by any Holder (each
a “Takedown Requesting Holder”) at least 48 hours prior to the public announcement of such Underwritten Shelf Takedown
pursuant to written contractual piggyback registration rights of such Holder (including those set forth herein). All such Holders proposing
to distribute their Registrable Securities through an Underwritten Shelf Takedown under this subsection 2.3.5 shall enter into an underwriting
agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the majority-in-interest of the Takedown
Requesting Holders initiating the Underwritten Shelf Takedown.
2.3.6 Reduction of Underwritten Shelf Takedown.
If the managing Underwriter(s) in an Underwritten Shelf Takedown, in good faith, advise the Company and the Takedown Requesting Holders
in writing that the dollar amount or number of Registrable Securities that the Takedown Requesting Holders desire to sell, taken together
with all other shares of the Common Stock or other equity securities that the Company desires to sell, exceeds the Maximum Number of Securities,
then the Company shall include in such Underwritten Shelf Takedown, as follows: (i) first, the Registrable Securities of the Takedown
Requesting Holders, on a Pro Rata basis, that can be sold without exceeding the Maximum Number of Securities; and (ii) second, to the
extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), the Common Stock or other equity securities
that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities.
2.3.7 Registrations effected pursuant to this Section
2.3 shall not be counted as Demand Registrations effected pursuant to Section 2.1. Under no circumstances shall the Company be obligated
to effect more than an aggregate of three (3) Underwritten Shelf Takedowns in any 12-month period.
Section 2.4 Restrictions on Registration Rights.
Notwithstanding anything to the contrary contained herein, the Company shall not be obligated to (but may, at its sole option) file a
Registration Statement pursuant to a Demand Registration request made under Section 2.1 if (A) during the period starting with the date
sixty (60) days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date one hundred and twenty
(120) days after the effective date of, a Company initiated Registration and provided that the Company has delivered written notice to
the Holders prior to receipt of a Demand Registration pursuant to subsection 2.1.1 and that the Company continues to actively employ,
in good faith, all reasonable efforts to cause the applicable Registration Statement to become effective, (B) the Holders have requested
an Underwritten Registration and the Company and the Holders are unable to obtain the commitment of underwriters to firmly underwrite
the offer, or (C) in the good faith judgment of the Board such Registration would be seriously detrimental to the Company and the Board
concludes as a result that it is essential to defer the filing of such Registration Statement at such time, then in each case the Company
shall furnish to such Holders a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board it
would be seriously detrimental to the Company for such Registration Statement to be filed in the near future and that it is therefore
essential to defer the filing of such Registration Statement. In such event, the Company shall have the right to defer such filing for
a period of not more than thirty (30) days; provided, however, that the Company shall not defer its obligation in this manner more than
once in any 12-month period.
ARTICLE III
COMPANY PROCEDURES
Section 3.1 General Procedures. If at any
time on or after the Effective Time the Company is required to effect the Registration of Registrable Securities, the Company shall use
its commercially reasonable efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the
intended plan of distribution thereof, and pursuant thereto the Company shall:
3.1.1 prepare and file with the Commission as soon
as practicable a Registration Statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause
such Registration Statement to become effective and remain effective until the earlier of (i) such time as all Registrable Securities
covered by such Registration Statement have been sold and (ii) such time as all Registrable Securities covered by such Registration Statement
have ceased to be Registrable Securities;
3.1.2 prepare and file with the Commission such
amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested
by the majority-in-interest of the Holders of the Registrable Securities registered on such Registration Statement or any Underwriter
of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by
the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable
Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration
Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or
Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriter(s), if any, and the Holders of Registrable
Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to
be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated
by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other
documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such
Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable
Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration
Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable
Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence
satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action
necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental
authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that
may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the
disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify
generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would
be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be
listed on each national securities exchange on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent,
as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities,
promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the
effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its
commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 advise each Holder of Registrable Securities
covered by such Registration Statement, promptly after the Company receives notice thereof, of the time when such registration statement
has been declared effective or a supplement to any Prospectus forming a part of such registration statement has been filed (which may
be satisfied by the issuance of a press release by the Company);
3.1.9 notify the Holders at any time when a Prospectus
relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result
of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such
Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders, the
Underwriter(s), if any, and any attorney or accountant retained by such Holders or Underwriter(s) to participate, at each such person’s
own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply
all information reasonably requested by any such representative, Underwriter(s), attorney or accountant in connection with the Registration;
provided, however, that such representatives or Underwriter(s) enter into a confidentiality agreement, in form and substance reasonably
satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort letter” from
the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering
such matters of the type customarily covered by “comfort letters” as the managing Underwriter(s) may reasonably request, and
reasonably satisfactory to a majority-in-interest of the participating Holders and such managing Underwriter;
3.1.12 on the date the Registrable Securities are
delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes
of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriter(s), if any, covering such
legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales
agent, or Underwriter(s) may reasonably request and as are customarily included in such opinions, and reasonably satisfactory to a majority
in interest of the participating Holders; provided, however, that counsel for the Company shall not be required to provide any opinions
with respect to any Holder;
3.1.13 in the event of any Underwritten Offering,
enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter(s)
of such offering;
3.1.14 make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day
of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if a Registration, including an Underwritten
Offering, involves the Registration of Registrable Securities involving gross proceeds in excess of $10,000,000, use its reasonable efforts
to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably
requested by the Underwriter(s) in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably
with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.
Notwithstanding the foregoing, the Company shall
not be required to provide any documents or information to an Underwriter if such Underwriter has not then been named with respect to
the applicable Underwritten Offering.
Section 3.2 Registration Expenses. Including
as set forth in Section 2.1.5, all Registration Expenses shall be borne by the Company. It is acknowledged by the Holders that the Holders
shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ commissions and
discounts, brokerage fees and, other than as set forth in the definition of “Registration Expenses,” all reasonable
fees and expenses of any legal counsel representing the Holders.
Section 3.3 Requirements for Participation in
Underwritten Offerings. No person may participate in any Underwritten Offering for equity securities of the Company pursuant to a
Registration initiated by the Company hereunder unless such person (i) agrees to sell such person’s securities on the basis provided
in any underwriting arrangements approved by the Company and (ii) completes and executes all customary questionnaires, powers of attorney,
indemnities, lock-up agreements, underwriting agreements and other customary documents as may be reasonably required under the terms of
such underwriting arrangements. Notwithstanding anything in this Agreement to the contrary, if any Holder does not complete and/or execute
such documents or does not otherwise provide the Company with such information with respect to such Holder as the Company reasonably requests
for use in connection with any such Registration Statement or Prospectus covering Registrable Securities of such Holder within two (2)
Business Days prior to filing the filing of the applicable “red herring” prospectus or prospectus supplement, the Company
may exclude such Holder’s Registrable Securities from the applicable Registration Statement or Prospectus if the Company determines,
based on the advice of counsel, that such information is necessary to effect the registration and such Holder continues thereafter to
withhold such information.
Section 3.4 Suspension of Sales; Adverse Disclosure.
The Company shall promptly notify each of the Holders in writing if a Registration Statement or Prospectus contains a Misstatement and,
upon receipt of such written notice from the Company, each of the Holders shall forthwith discontinue disposition of Registrable Securities
until he, she or it is advised in writing by the Company that the use of the Prospectus may be resumed or has received copies of a supplemented
or amended Prospectus correcting the Misstatement, provided that the Company hereby covenants promptly to prepare and file any required
supplement or amendment correcting any Misstatement promptly after the time of such notice and, if necessary, to request the immediate
effectiveness thereof. If the filing, initial effectiveness or continued use of a Registration Statement or Prospectus included in any
Registration Statement at any time (a) would require the Company to make an Adverse Disclosure, (b) would require the inclusion in such
Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control, or
(c) in the good faith judgment of the Board (which judgment shall be documented in writing and provided to the Holders in the form of
a written certificate signed by the Chairman of the Board) would be materially detrimental to the Company, the Company shall have the
right to defer the filing, initial effectiveness or continued use of any Registration Statement pursuant to (a), (b) or (c) of this sentence
for a period of not more than sixty (60) days, but the Company shall not defer any such filing, initial effectiveness or use of a Registration
Statement pursuant to this Section 3.4 more than twice or for more than a total of 120 days (in each case counting deferrals initiated
pursuant to (a), (b) and (c) of this sentence in the aggregate) in any 12-month period.
Section 3.5 Reporting Obligations. As long
as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange Act,
covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to
be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holders
with true and complete copies of all such filings; provided that any documents publicly filed or furnished with the Commission on EDGAR
shall be deemed to have been furnished or delivered to the Holders pursuant to this Section. The Company further covenants that it shall
take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell
shares of Common Stock held by such Holder without registration under the Securities Act within the limitation of the exemptions provided
by Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission), including providing
any legal opinions. Upon the request of any Holder, the Company shall deliver to such Holder a written certification of a duly authorized
officer as to whether it has complied with such requirements.
Section 3.6 Limitations on Registration Rights.
The Company shall not hereafter enter into any agreement with respect to its securities which is inconsistent with or violates the rights
granted to the Holders of Registrable Securities in this Agreement and in the event of any conflict between any such agreement or agreements
and this Agreement, the terms of this Agreement shall prevail.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
Section 4.1 Indemnification
4.1.1 The Company agrees to indemnify, to the extent
permitted by law, each Holder of Registrable Securities, its officers and directors and agents and each person who controls such Holder
(within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses (including reasonable outside
attorneys’ fees) (as determined by a final and non- appealable judgment, order or decree of a court of competent jurisdiction) caused
by any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus or preliminary Prospectus
or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information furnished
in writing to the Company by such Holder expressly for use therein. The Company shall indemnify the Underwriter(s), their officers and
directors and each person who controls (within the meaning of the Securities Act) such Underwriter(s) to the same extent as provided in
the foregoing with respect to the indemnification of the Holder.
4.1.2 In connection with any Registration Statement
in which a Holder of Registrable Securities is participating, such Holder shall furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus and, to the extent
permitted by law, shall indemnify the Company, its directors and officers and agents and each person who controls (within the meaning
of the Securities Act) the Company against any losses, claims, damages, liabilities and expenses (including reasonable outside attorneys’
fees) (as determined by a final and non-appealable judgment, order or decree of a court of competent jurisdiction) resulting from any
untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof
or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in
writing by such Holder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and
several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion
to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement.
The Holders of Registrable Securities shall indemnify the Underwriter(s), their officers, directors and each person who controls (within
the meaning of the Securities Act) such Underwriter(s) to the same extent as provided in the foregoing with respect to indemnification
of the Company.
4.1.3 Any person entitled to indemnification herein
shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided,
however, that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such
failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying
party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such
consent shall not be unreasonably withheld, conditioned or delayed). An indemnifying party who is not entitled to, or elects not to, assume
the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without
the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all
respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which
settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release
from all liability in respect to such claim or litigation.
4.1.4 The indemnification provided for under this
Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer,
director or controlling person of such indemnified party and shall survive the transfer of securities. The Company and each Holder of
Registrable Securities participating in an offering also agrees to make such provisions as are reasonably requested by any indemnified
party for contribution (pursuant to subsection 4.1.5) to such party in the event the Company’s or such Holder’s indemnification
is unavailable for any reason.
4.1.5 If the indemnification provided under Section
4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party,
shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses
in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any
other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference
to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified
party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity
to correct or prevent such action; provided, however, that the liability of any Holder under this subsection 4.1.5 shall be limited to
the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a
party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth
in subsections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or expenses reasonably incurred by such party in connection
with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this
subsection 4.1.5 were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable
considerations referred to in this subsection 4.1.5. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution pursuant to this subsection 4.1.5 from any person who was not guilty of such
fraudulent misrepresentation.
ARTICLE V
Section 5.1 Lock-Up. Except as permitted
by Section 5.2, each Restricted Stockholder shall not Transfer any Restricted Securities beneficially owned or owned of record by such
Restricted Stockholder until the end of the applicable Lock-up Period.
Section 5.2 Exceptions. The provisions of Section 5.1 shall
not apply to:
5.2.1 Transfers as a bona fide gift;
5.2.2 Transfers to a trust, or other entity formed
for estate planning purposes for the primary benefit of the spouse, domestic partner, parent, sibling, child or grandchild of the undersigned
or any other person with whom the undersigned has a relationship by blood, marriage or adoption not more remote than first cousin;
5.2.3 Transfers by will or intestate succession
upon the death of the undersigned;
5.2.4 Transfers pursuant to a qualified domestic
order or in connection with a divorce settlement;
5.2.5 if the undersigned is a corporation, partnership
(whether general, limited or otherwise), limited liability company, trust or other business entity, (i) Transfers to another corporation,
partnership, limited liability company, trust or other business entity that controls, is controlled by or is under common control or management
with the undersigned, and (ii) distributions to partners, limited liability company members or stockholders of the undersigned;
5.2.6 Transfers to the Company’s officers,
directors or their affiliates;
5.2.7 pledges of Restricted Securities as security
or collateral in connection with any borrowing or the incurrence of any indebtedness by any Holder; provided, however, that such borrowing
or incurrence of indebtedness is secured by a portfolio of assets or equity interests issued by multiple issuers;
5.2.8 Transfers pursuant to a bona fide third-party
tender offer, merger, stock sale, recapitalization, consolidation or other transaction involving a Change in Control of the Company; provided,
however, that in the event that such tender offer, merger, recapitalization, consolidation or other such transaction is not completed,
the Restricted Securities subject to this Agreement shall remain subject to this Agreement;
5.2.9 the establishment of a trading plan pursuant
to Rule 10b5-1 promulgated under the Exchange Act; provided, however, that such plan is reasonably acceptable to the Company;
5.2.10 Transfers to satisfy tax withholding obligations
in connection with the exercise of options to purchase shares of Common Stock or the vesting of stock-based awards; and
5.2.11 Transfers in payment on a “net exercise”
or “cashless” basis of the exercise or purchase price with respect to the exercise of options to purchase shares of Common
Stock;
provided, however, that in the case of any Transfer pursuant to Sections
5.2.1 through 5.2.6, each donee, distributee or other transferee shall agree in writing, in form and substance reasonably satisfactory
to the Company, to be bound by the provisions of this Agreement.
Section 5.3 Early Release of Lock-Up Restrictions.
In the event that any Restricted Stockholder is granted a discretionary waiver or termination of the restrictions set forth in Section
5.1 above by the Board other than those set forth in this Article V, such discretionary release or waiver shall apply pro rata to all
Restricted Stockholders based on the number of shares held by such Restricted Stockholder.
ARTICLE VI
TERMINATION
Section 6.1 Termination. This Agreement shall
terminate upon the earliest to occur of: (i) the termination of the Business Combination Agreement, and (ii) with respect to each Holder,
the date on which such Holder or any of its permitted assignees no longer hold any Registrable Securities.
Section 6.2 Effect of Business Combination Termination.
In the event of a termination of this Agreement as a result of the termination of the Business Combination Agreement, this Agreement shall
become void and the Prior Agreement shall continue in full force and effect.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1 Notices. All notices, requests,
claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given
upon receipt) by delivery in person, by e-mail or by registered or certified mail (postage prepaid, return receipt requested) to the respective
parties at the following addresses or e-mail addresses (or at such other address or email address for a party as shall be specified in
a notice given in accordance with this Section 7.1.):
If to the Company (prior to the Effective Time),
to it at:
Anzu Special Acquisition Corp I
12610 Race Track Road, Suite 250
Tampa, Florida 33626
Attention: Whitney Haring-Smith
E-mail: whs@anzupartners.com
with a copy (which shall not constitute notice)
to:
Morrison & Foerster LLP
2100 L Street, Suite 900
Washington, DC 20037
Attention: Mitchell Presser; David Slotkin; Aly El Hamamsy
Email: mpresser@mofo.com; dslotkin@mofo.com; aelhamamsy@mofo.com
If to Envoy (following the Effective Time), to it
at:
Envoy Medical Corporation
4875 White Bear Parkway
White Bear Lake, Minnesota 55110
Attention: Brent Lucas
Email: blucas@envoymedical.com
with a copy (which shall not constitute notice)
to:
Fredrikson & Byron, P.A.
200 South Sixth Street; #4000
Minneapolis, MN 55402
Attention: Melodie Rose; Chris Melsha, Andrew Nick
Email: mrose@fredlaw.com; cmelsha@fredlaw.com; anick@fredlaw.com
If to a Holder, to the address or email address
set forth for such Holder in the records of the Company.
Section 7.2 Severability. If any term or
other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
Section 7.3 Entire Agreement; Assignment.
This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements
and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof. Any Holder may
assign its rights under this Agreement to any Permitted Transferee, provided that such transferee agrees in writing in form and substance
reasonably acceptable to the Company to be bound by the terms of this Agreement.
Section 7.4 Parties in Interest. This Agreement
shall be binding upon and inure solely to the benefit of each party hereto (and its respective permitted assigns), and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
Section 7.5 Governing Law. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts executed in and to be
performed in that State. All legal actions and proceedings arising out of or relating to this Agreement shall be heard and determined
exclusively in any Delaware Chancery Court; provided, however, that if jurisdiction is not then available in the Delaware Chancery Court,
then any such legal action may be brought in any federal court located in the State of Delaware or any other Delaware state court. The
parties hereto hereby (a) irrevocably submit to the exclusive jurisdiction of the aforesaid courts for themselves and with respect to
their respective properties for the purpose of any action arising out of or relating to this Agreement brought by any party hereto, and
(b) agree not to commence any action relating thereto except in the courts described above in Delaware, other than actions in any court
of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in Delaware as described herein. Each of
the parties further agrees that notice as provided herein shall constitute sufficient service of process and the parties further waive
any argument that such service is insufficient. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert,
by way of motion or as a defense, counterclaim or otherwise, in any action arising out of or relating to this Agreement or the transactions
contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts in Delaware as described herein
for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced
in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution
of judgment or otherwise) and (c) that (i) the action in any such court is brought in an inconvenient forum, (ii) the venue of such action
is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
Section 7.6 Waiver of Jury Trial. EACH OF
THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT
TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH OF THE PARTIES HERETO (I) CERTIFIES
THAT 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 THAT FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 7.6.
Section 7.7 Headings; Interpretation. The
descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning
or interpretation of this Agreement. The parties have participated jointly in the negotiation and drafting of this Agreement. If any ambiguity
or question of intent arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof
will arise favoring or disfavoring any party because of the authorship of any provision of this Agreement. Unless the context of this
Agreement clearly requires otherwise, use of the masculine gender shall include the feminine and neutral genders and vice versa, and the
definitions of terms contained in this Agreement are applicable to the singular as well as the plural forms of such terms. The words “includes”
or “including” shall mean “including without limitation.” The words “hereof,” “hereby,”
“herein,” “hereunder” and similar terms in this Agreement shall refer to this Agreement as a whole and not any
particular section or article in which such words appear, the word “extent” in the phrase “to the extent” shall
mean the degree to which a subject or other thing extends and such phrase shall not mean simply “if.” Any reference to a law
shall include any rules and regulations promulgated thereunder, and shall mean such law as from time to time amended, modified or supplemented.
References herein to any contract (including this Agreement) mean such contract as amended, supplemented or modified from time to time
in accordance with the terms thereof.
Section 7.8 Counterparts. This Agreement
may be executed and delivered (including by facsimile or portable document format (pdf) transmission) in counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
Section 7.9 Specific Performance. The parties
hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance with the
terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law
or in equity. Each of the parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would
be adequate and (b) any requirement under any Law to post security or a bond as a prerequisite to obtaining equitable relief.
Section 7.10 Confidentiality. Each Holder
agrees to treat as confidential the receipt of any notice hereunder (including notice of a Demand Registration) and the information contained
therein, and not to disclose or use the information contained in any such notice (or the existence thereof) without the prior written
consent of the Company until such time as the information contained therein is or becomes available to the public generally (other than
as a result of disclosure by such Holder in breach of the terms of this Agreement).
Section 7.11 Expenses. Except as otherwise
provided herein, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid
by the party incurring such costs and expenses, whether or not the transactions contemplated hereby are consummated.
Section 7.12 Amendment. This Agreement may
be amended in writing by the parties hereto at any time prior to the Effective Time. Following the Effective Time, this Agreement may
not be amended except by an instrument in writing signed by the Company and Holders holding at least a majority in interest of the then-outstanding
number of Registrable Securities held by all Holders (provided the Holders or their Permitted Transferees hold Registrable Securities
at the time of such amendment); provided, however, that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely
affects one Holder, solely in its capacity as a holder of the shares of the Company, in a manner that is materially different from the
other Holders (in such capacity) shall require the consent of the Holder so affected.
Section 7.13 Waiver. At any time, (i) the
Company may (a) extend the time for the performance of any obligation or other act of any Holder, (b) waive any inaccuracy in the representations
and warranties of any Holder contained herein or in any document delivered by such Holder pursuant hereto and (c) waive compliance with
any agreement of such Holder or any condition to its own obligations contained herein. At any time, (i) the Holders of a majority of the
total Registrable Securities may on behalf of all Holders (a) extend the time for the performance of any obligation or other act of the
Company, (b) waive any inaccuracy in the representations and warranties of the Company contained herein or in any document delivered by
the Company pursuant hereto and (c) waive compliance with any agreement of the Company or any condition to their own obligations contained
herein; provided, that any waiver that adversely affects one Holder, solely in its capacity as a holder of the shares of capital stock
of the Company, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holder
so affected. Any such extension or waiver shall be valid if set forth in an instrument in writing signed by the party or parties to be
bound thereby.
Section 7.14 Further Assurances. At the request
of the Company, in the case of any Holder, or at the request of any Holder, in the case of the Company, and without further consideration,
each party shall execute and deliver or cause to be executed and delivered such additional documents and instruments and take such further
action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.
Section 7.15 No Strict Construction. The
language used in this Agreement shall be deemed to be the language chosen by the parties to express their mutual intent and no rule of
strict construction shall be applied against any party.
(Signature pages follow)
IN WITNESS WHEREOF, each of the parties has executed
this Agreement as of the date first written above.
|
COMPANY: |
|
Anzu Special Acquisition Corp I |
|
|
|
By: |
/s/ Dr. Whitney Haring-Smith |
|
Name: |
Dr. Whitney Haring-Smith |
|
Title: |
Chief Executive Officer |
[Signature Page to Amended and Restated Registration
Rights and Lock-Up Agreement]
|
SPAC HOLDERS: |
|
|
|
Anzu SPAC GP I LLC |
|
|
|
By: |
/s/ Dr. Whitney Haring-Smith |
|
Name: |
Dr. Whitney Haring-Smith |
|
Title: |
President |
|
|
|
/s/ Daniel J. Hirsch |
|
Daniel J. Hirsch |
|
|
|
/s/ Diane L. Dewbrey |
|
Diane L. Dewbrey |
|
|
|
/s/ Priya Cherian Huskins |
|
Priya Cherian Huskins |
|
|
|
/s/ Susan J. Kantor |
|
Susan J. Kantor |
[Signature Page to Amended and Restated Registration
Rights and Lock-Up Agreement]
|
KEY SELLER STOCKHOLDERS: |
|
|
|
GAT FUNDING, LLC |
|
|
|
By: |
/s/ Glen A. Taylor |
|
Name: |
Glen A. Taylor |
|
Title: |
Chief Manager |
|
|
|
/s/ Brent T. Lucas |
|
Brent T. Lucas |
|
|
|
/s/ Paul Waldon |
|
Paul Waldon |
|
|
|
AL LENZMEIER REVOCABLE TRUST DATED 11/29/2012 |
|
|
|
By: |
/s/ Allen Lenzmeier |
|
Name: |
Allen Lenzmeier |
|
Title: |
Trustee |
|
|
|
ALLEN LENZMEIER AND KATHLEEN LENZMEIER, JTWROS |
|
|
|
/s/ Allen Lenzmeier |
|
Allen Lenzmeier |
|
|
|
/s/ Kathleen Lenzmeier |
|
Kathleen Lenzmeier |
|
Title: |
Trustee |
[Signature Page to Amended and Restated Registration
Rights and Lock-Up Agreement]
|
RESTRICTED STOCKHOLDERS: |
|
|
|
GAT FUNDING, LLC |
|
|
|
By: |
/s/ Glen A. Taylor |
|
Name: |
Glen A. Taylor |
|
Title: |
Chief Manager |
|
|
|
/s/ Glen A. Taylor |
|
Glen A. Taylor |
[Signature Page to Amended and Restated Registration
Rights and Lock-Up Agreement]
Schedule A
SPAC Holders
Anzu SPAC GP I LLC
Daniel J. Hirsch
Diane L. Dewbrey
Priya Cherian Huskins
Susan J. Kantor
Teresa A. Harris
Key Seller Stockholders
GAT Funding, LLC
Paul Waldon
Brent T. Lucas
Al Lenzmeier Revocable Trust dated 11/29/2012
Allen Lenzmeier and Kathleen Lenzmeier, JTWROS
Restricted Stockholders
Glen A. Taylor
GAT Funding, LLC
25
Exhibit 10.21
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT
(this “Agreement”) is made as of [●], 2023 by and between Envoy Medical, Inc. a Delaware corporation (the “Company”),
and [D&O] (“Indemnitee”).
RECITALS
WHEREAS, the Board of
Directors of the Company (the “Board”) has determined that it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, hold harmless, exonerate and to advance expenses on behalf of, persons who serve the Company
and its direct and indirect subsidiaries (collectively, the “Company Group”) to the fullest extent permitted by applicable
law;
WHEREAS, this Agreement
is a supplement to and in furtherance of the Second Amended and Restated Certificate of Incorporation (the “Charter”)
and the Amended and Restated Bylaws (the “Bylaws”) of the Company and any resolutions adopted pursuant thereto, and
shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder; and
WHEREAS, Indemnitee may
not be willing to serve as an officer or director, advisor or in another capacity without adequate protection, and the Company desires
Indemnitee to serve in such capacity. Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf
of the Company on the condition that Indemnitee be so indemnified.
NOW, THEREFORE, in consideration
of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:
TERMS AND CONDITIONS
1. SERVICES
TO THE COMPANY. In consideration of the Company’s covenants and obligations hereunder, Indemnitee will serve or continue to
serve as an officer, director, advisor, key employee or any other capacity of any member of the Company Group, as applicable, for so long
as Indemnitee is duly elected or appointed or retained or until Indemnitee tenders Indemnitee’s resignation or until Indemnitee
is removed. The foregoing notwithstanding, this Agreement shall continue in full force and effect after Indemnitee has ceased to serve
as a director, officer, advisor, key employee or in any other capacity of any member of the Company Group, as provided in Section 17.
This Agreement, however, shall not impose any obligation on Indemnitee or the Company to continue Indemnitee’s service to the Company
Group beyond any period otherwise required by law or by other agreements or commitments of the parties, if any.
2. DEFINITIONS.
As used in this Agreement:
(a) References to “agent”
shall mean any person who is or was a director, officer or employee of the Company or a subsidiary of the Company or other person authorized
by the Company to act for the Company, to include such person serving in such capacity as a director, officer, employee, advisor, fiduciary
or other official of another corporation, partnership, limited liability company, joint venture, trust or other enterprise at the request
of, for the convenience of, or to represent the interests of the Company or a subsidiary of the Company.
(b) The terms “Beneficial
Owner” and “Beneficial Ownership” shall have the meanings set forth in Rule 13d-3 promulgated under the Exchange
Act (as defined below) as in effect on the date hereof.
(c) “Corporate Status”
describes the status of a person who is or was a director, officer, trustee, general partner, manager, managing member, fiduciary, employee
or agent of the Company or of any other Enterprise (as defined below) which such person is or was serving at the request of the Company.
(d) “Delaware Court”
shall mean the Court of Chancery of the State of Delaware.
(e) “Disinterested
Director” shall mean a director of the Company who is not and was not a party to the Proceeding (as defined below) in respect
of which indemnification is sought by Indemnitee.
(f) “Enterprise”
shall mean the Company and any other corporation, constituent corporation (including any constituent of a constituent) absorbed in a consolidation
or merger to which the Company (or any of its wholly owned subsidiaries) is a party, limited liability company, partnership, joint venture,
trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, officer,
trustee, general partner, managing member, fiduciary, employee or agent.
(g) “Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended.
(h) “Expenses”
shall include all direct and indirect costs, fees and expenses of any type or nature whatsoever, including, without limitation, all reasonable
attorneys’ fees and costs, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, fees of private
investigators and professional advisors, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees,
fax transmission charges, secretarial services and all other disbursements, obligations or expenses in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, being or preparing to be a witness in, settlement or appeal of, or otherwise participating
in, a Proceeding (as defined below), including reasonable compensation for time spent by Indemnitee for which Indemnitee is not otherwise
compensated by the Company or any third party. Expenses also shall include Expenses incurred in connection with any appeal resulting from
any Proceeding (as defined below), including without limitation the principal, premium, security for, and other costs relating to any
cost bond, supersedes bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by
Indemnitee or the amount of judgments or fines against Indemnitee incurred in any Proceeding by or in the right of the Company.
(i) References to “fines”
shall include any excise tax assessed on Indemnitee with respect to any employee benefit plan; references to “serving at the
request of the Company” shall include any service as a director, officer, employee, agent or fiduciary of the Company which
imposes duties on, or involves services by, such director, officer, employee, agent or fiduciary with respect to an employee benefit plan,
its participants or beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best
interests of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not
opposed to the best interests of the Company” as referred to in this Agreement.
(j) “Independent
Counsel” shall mean a law firm or a member of a law firm with significant experience in matters of corporation law and that
neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material
to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar
indemnification agreements); or (ii) any other party to the Proceeding (as defined below) giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards
of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action
to determine Indemnitee’s rights under this Agreement.
(k) The term “Person”
shall have the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act as in effect on the date hereof; provided, however,
that “Person” shall exclude: (i) the Company; (ii) any Subsidiaries (as defined below) of the Company; (iii) any employment
benefit plan of the Company or of a Subsidiary (as defined below) of the Company or of any corporation owned, directly or indirectly,
by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company; and (iv) any trustee
or other fiduciary holding securities under an employee benefit plan of the Company or of a Subsidiary (as defined below) of the Company
or of a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership
of stock of the Company.
(l) The term “Proceeding”
shall include any threatened, pending or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of the Company or
otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative or investigative or related
nature, in which Indemnitee was, is, will or might be involved as a party or otherwise by reason of the fact of Indemnitee’s Corporate
Status, whether or not serving in such capacity at the time any liability or expense is incurred for which indemnification, reimbursement,
or advancement of expenses can be provided under this Agreement but shall not include any Enforcement Proceeding (as defined below) pursuant
to Section 14.
(m) The term “Subsidiary,”
with respect to any Person, shall mean any corporation, limited liability company, partnership, joint venture, trust or other entity of
which a majority of the voting power of the voting equity securities or equity interest is owned, directly or indirectly, by that Person.
3. INDEMNITY
IN THIRD-PARTY PROCEEDINGS. To the fullest extent permitted by applicable law, the Company shall indemnify, hold harmless and exonerate
Indemnitee in accordance with the provisions of this Section 3 if Indemnitee was, is, or is threatened to be made, a party to or
a participant (as a witness, deponent or otherwise) in any Proceeding, other than a Proceeding by or in the right of the Company to procure
a judgment in its favor, by reason of Indemnitee’s Corporate Status. Pursuant to this Section 3, Indemnitee shall be indemnified,
held harmless and exonerated against all Expenses, judgments, liabilities, fines, penalties and amounts paid in settlement (including
all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties
and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such
Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to
be in or not opposed to the best interests of the Company and, in the case of a criminal Proceeding, had no reasonable cause to believe
that Indemnitee’s conduct was unlawful.
4. INDEMNITY
IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. To the fullest extent permitted by applicable law, the Company shall indemnify,
hold harmless and exonerate Indemnitee in accordance with the provisions of this Section 4 if Indemnitee was, is, or is threatened
to be made, a party to or a participant (as a witness, deponent or otherwise) in any Proceeding by or in the right of the Company to procure
a judgment in its favor by reason of Indemnitee’s Corporate Status. Pursuant to this Section 4, Indemnitee shall be indemnified,
held harmless and exonerated against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection
with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed
to be in or not opposed to the best interests of the Company. No indemnification, hold harmless or exoneration for Expenses shall be made
under this Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudged by a court
of competent jurisdiction to be liable to the Company, unless and only to the extent that any court in which the Proceeding was brought
or the Delaware Court shall determine upon application that, despite the adjudication of liability but in view of all the circumstances
of the case, Indemnitee is fairly and reasonably entitled to indemnification, to be held harmless or to exoneration.
5. INDEMNIFICATION
FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL. Notwithstanding any other provisions of this Agreement, to the extent
that Indemnitee was or is, by reason of Indemnitee’s Corporate Status, a party to (or a participant in) and is successful, on the
merits or otherwise, in any Proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Company shall, to
the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses actually and reasonably
incurred by Indemnitee in connection therewith. If Indemnitee is not wholly successful in such Proceeding (or part thereof) but is successful,
on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall, to the
fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection with each successfully resolved claim, issue or matter. If Indemnitee
is not wholly successful in such Proceeding (or part thereof), the Company also shall, to the fullest extent permitted by applicable law,
indemnify, hold harmless and exonerate Indemnitee against all Expenses reasonably incurred in connection with a claim, issue or matter
related to any claim, issue, or matter on which Indemnitee was successful. For purposes of this Section 5 and without limitation,
the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful
result as to such claim, issue or matter.
6. INDEMNIFICATION
FOR EXPENSES OF A WITNESS. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of Indemnitee’s
Corporate Status, a witness or deponent in any Proceeding to which Indemnitee was not or is not a party or threatened to be made a party,
Indemnitee shall, to the fullest extent permitted by applicable law, be indemnified, held harmless and exonerated against all Expenses
actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
7. ADDITIONAL
INDEMNIFICATION, HOLD HARMLESS AND EXONERATION RIGHTS. Notwithstanding any limitation in Sections 3, 4, or 5,
the Company shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee if Indemnitee
is a party to or threatened to be made a party to any Proceeding against all Expenses and judgments, fines, penalties and amounts paid
in settlement in any Proceeding by or in the right of the Company to procure a judgment in its favor (including all interest, assessments
and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties and amounts paid in settlement)
actually and reasonably incurred by Indemnitee in connection with the Proceeding.
8. CONTRIBUTION
IN THE EVENT OF JOINT LIABILITY.
(a) To the fullest extent
permissible under applicable law, if the indemnification, hold harmless and/or exoneration rights provided for in this Agreement are unavailable
to Indemnitee in whole or in part for any reason whatsoever, the Company, in lieu of indemnifying, holding harmless or exonerating Indemnitee,
shall pay, in the first instance, the entire amount incurred by Indemnitee, whether for judgments, liabilities, fines, penalties, amounts
paid or to be paid in settlement and/or for Expenses, in connection with any Proceeding without requiring Indemnitee to contribute to
such payment, and the Company hereby waives and relinquishes any right of contribution it may have at any time against Indemnitee.
(b) The Company shall not
enter into any settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding)
unless such settlement provides for a full and final release of all claims asserted against Indemnitee.
(c) The Company hereby agrees
to fully indemnify, hold harmless and exonerate Indemnitee from any claims for contribution which may be brought by officers, directors
or employees of the Company other than Indemnitee who may be jointly liable with Indemnitee.
9. EXCLUSIONS.
Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnification,
advance expenses, hold harmless or exoneration payment in connection with any claim made against Indemnitee:
(a) for which payment has
actually been received by or on behalf of Indemnitee under any insurance policy or other indemnity or advancement provision, except with
respect to any excess beyond the amount actually received under any insurance policy, contract, agreement, other indemnity or advancement
provision or otherwise;
(b) for an accounting of profits
made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b)
of the Exchange Act (or any successor rule) or similar provisions of state statutory law or common law;
(c) except as otherwise provided
in Sections 14(f) and 14(g) hereof, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee,
including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees
or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the
Company provides the indemnification, hold harmless or exoneration payment, in its sole discretion, pursuant to the powers vested in the
Company under applicable law;
(d) in connection with any
Proceeding instituted by Indemnitee to establish, enforce or interpret a right to indemnification under this Agreement or any other statute
or law or otherwise if a court of competent jurisdiction determines that each of the material assertions made by Indemnitee in such proceeding
was not made in good faith or was frivolous;
(e) to the extent it is determined
by a final court order or judgment by a court of competent jurisdiction, to which all rights of appeal have either lapsed or been exhausted,
that such indemnification, advance expenses, hold harmless or exoneration payment is unlawful;
(f) to the extent Indemnitee’s
conduct is established by a final order or judgment by a court of competent jurisdiction, to which all rights of appeal have either lapsed
or been exhausted, that such conduct is knowingly fraudulent; or
(g) for any amounts paid in
settlement of a Proceeding effected without the Company’s written consent (which shall not be unreasonably withheld); provided,
however, that the Company may decline to consent to (or otherwise admit or agree to any liability for indemnification hereunder in respect
of) any proposed settlement if the Company is also a party in such Proceeding and determines in good faith that such settlement is not
in the best interests of the Company and its stockholders.
10. ADVANCES
OF EXPENSES; DEFENSE OF CLAIM.
(a) Notwithstanding any provision
of this Agreement to the contrary, and to the fullest extent not prohibited by applicable law, the Company shall pay the Expenses incurred
by Indemnitee (or reasonably expected by Indemnitee to be incurred by Indemnitee within three months) in connection with any Proceeding
within ten (10) days after the receipt by the Company of a statement or statements requesting such advances from time to time, prior to
the final disposition of any Proceeding. Advances shall, to the fullest extent permitted by law, be unsecured and interest free. Advances
shall, to the fullest extent permitted by law, be made without regard to Indemnitee’s ability to repay the Expenses and without
regard to Indemnitee’s ultimate entitlement to be indemnified, held harmless or exonerated under the other provisions of this Agreement.
Advances shall include any and all reasonable Expenses incurred pursuing an Enforcement Proceeding (assuming for this purpose all references
to a “Proceeding” in the definition of Expenses were deemed related to an Enforcement Proceeding), including Expenses incurred
preparing and forwarding statements to the Company to support the advances claimed. This Agreement shall constitute Indemnitee’s
undertaking to repay the advanced amounts to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified,
held harmless or exonerated by the Company under the provisions of this Agreement, the Charter, the Bylaws of the Company, applicable
law or otherwise, but only if such an undertaking is required by applicable law. This Section 10(a) shall not apply to any Proceeding
for which indemnity is not permitted under Section 9 of this Agreement, but shall apply to any Proceeding referenced in Section
9(b) prior to a final determination that Indemnitee is liable therefor.
(b) The Company will be entitled to participate
in the Proceeding at its own expense.
(c) The Company shall not
settle any action, claim or Proceeding (in whole or in part) which would impose any Expense, judgment, fine, penalty or limitation on
Indemnitee without Indemnitee’s prior written consent.
11. PROCEDURE
FOR NOTIFICATION AND APPLICATION FOR INDEMNIFICATION.
(a) Indemnitee agrees to notify
promptly the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document
relating to any Proceeding, claim, issue or matter therein which may be subject to indemnification, hold harmless or exoneration rights,
or advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company shall not relieve the Company of any
obligation which it may have to Indemnitee under this Agreement, or otherwise.
(b) Indemnitee may deliver
to the Company a written application to indemnify, hold harmless or exonerate Indemnitee in accordance with this Agreement. Such application(s)
may be delivered from time to time and at such time(s) as Indemnitee deems appropriate in Indemnitee’s sole discretion. Following
such a written application for indemnification by Indemnitee, Indemnitee’s entitlement to indemnification shall be determined according
to Section 12(a) of this Agreement.
12. PROCEDURE
UPON APPLICATION FOR INDEMNIFICATION.
(a) A determination, if required
by applicable law, with respect to Indemnitee’s entitlement to indemnification shall be made (x) by a majority vote of the Disinterested
Directors, even though less than a quorum of the Board, (y) by a committee of Disinterested Directors, even though less than a quorum
of the Board, or (z) if there are no Disinterested Directors, or if such directors so direct, by Independent Counsel in a written opinion
to the Board, a copy of which shall be delivered to Indemnitee. The Company promptly will advise Indemnitee in writing with respect to
any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification
has been denied. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten
(10) days after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination
with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable
advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such determination. Any costs or Expenses (including reasonable attorneys’ fees
and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne
by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby agrees
to indemnify and to hold Indemnitee harmless therefrom.
(b) In the event the determination
of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel
shall be selected as provided in this Section 12(b). The Independent Counsel shall be selected by Indemnitee (unless Indemnitee
shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity
of the Independent Counsel so selected and certifying that the Independent Counsel so selected meets the requirements of “Independent
Counsel” as defined in Section 2 of this Agreement. If the Independent Counsel is selected by the Board, the Company shall
give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected and certifying that the Independent
Counsel so selected meets the requirements of “Independent Counsel” as defined in Section 2 of this Agreement. In either
event, Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been
received, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that
such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent
Counsel” as defined in Section 2 of this Agreement, and the objection shall set forth with particularity the factual basis
of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection
is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection
is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within twenty (20) days after
submission by Indemnitee of a written request for indemnification pursuant to Section 11(b) hereof, no Independent Counsel shall
have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court for resolution of any objection
which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment
as Independent Counsel of a person selected by the Delaware Court, and the person with respect to whom all objections are so resolved
or the person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial
proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of
any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
(c) The Company agrees to
pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against
any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
13. PRESUMPTIONS
AND EFFECT OF CERTAIN PROCEEDINGS.
(a) In making a determination
with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall presume that Indemnitee
is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section
11(b) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making
by any person, persons or entity of any determination contrary to that presumption. Neither the failure of the Company (including by the
Disinterested Directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this
Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual
determination by the Company (including by the Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(b) If the person, persons
or entity empowered or selected under Section 12 of this Agreement to determine whether Indemnitee is entitled to indemnification
shall not have made a determination within thirty (30) days after receipt by the Company of the request therefor, the requisite determination
of entitlement to indemnification shall, to the fullest extent permitted by law, be deemed to have been made and Indemnitee shall be entitled
to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make
Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a final judicial determination
that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 30-day period may be extended
for a reasonable time, not to exceed an additional fifteen (15) days, if the person, persons or entity making the determination with respect
to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or
information relating thereto.
(c) The termination of any
Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee
to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed
to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable
cause to believe that Indemnitee’s conduct was unlawful.
(d) For purposes of any determination
of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of
account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, manager, or officers
of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise, its Board, any committee of the
Board or any director, trustee, general partner, manager or managing member, or on information or records given or reports made to the
Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member, by an independent
certified public accountant or by an appraiser or other expert selected by the Enterprise, its Board, any committee of the Board or any
director, trustee, general partner, manager or managing member. The provisions of this Section 13(d) shall not be deemed to be
exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard
of conduct set forth in this Agreement.
(e) The knowledge and/or actions,
or failure to act, of any other director, officer, trustee, partner, manager, managing member, fiduciary, agent or employee of the Enterprise
shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
14. REMEDIES
OF INDEMNITEE.
(a) In the event that (i)
a determination is made pursuant to Section 12 of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses, to the fullest extent permitted by applicable law, is not timely made pursuant to Section
10 of this Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 12(a)
of this Agreement within thirty (30) days after receipt by the Company of the request for indemnification, (iv) payment of indemnification
is not made pursuant to Section 5, 6, 7 or the last sentence of Section 12(a) of this Agreement within ten
(10) days after receipt by the Company of a written request therefor, (v) a contribution payment is not made in a timely manner pursuant
to Section 8 of this Agreement, (vi) payment of indemnification pursuant to Section 3 or 4 of this Agreement is not
made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification, or (vii) payment to Indemnitee
pursuant to any hold harmless or exoneration rights under this Agreement or otherwise is not made in accordance with this Agreement, Indemnitee
shall be entitled to an adjudication by the Delaware Court to such indemnification, hold harmless, exoneration, contribution or advancement
rights. Alternatively, Indemnitee, at Indemnitee’s option, may seek an award in arbitration to be conducted by a single arbitrator
pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Except as set forth herein, the provisions of Delaware
law (without regard to its conflict of laws rules) shall apply to any such arbitration. The Company shall not oppose Indemnitee’s
right to seek any such adjudication or award in arbitration. Such adjudication or arbitration proceeding is referred to herein as an “Enforcement
Proceeding.”
(b) In the event that a determination
shall have been made pursuant to Section 12(a) of this Agreement that Indemnitee is not entitled to indemnification, any Enforcement
Proceeding shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced
by reason of that adverse determination.
(c) In any Enforcement Proceeding,
Indemnitee shall be presumed to be entitled to be indemnified, held harmless, exonerated and to receive advancement of Expenses under
this Agreement and the Company shall have the burden of proving Indemnitee is not entitled to be indemnified, held harmless, exonerated
and to receive advancement of Expenses, as the case may be, and the Company may not refer to or introduce into evidence any determination
pursuant to Section 12(a) of this Agreement adverse to Indemnitee for any purpose. If Indemnitee commences an Enforcement Proceeding,
Indemnitee shall not be required to reimburse the Company for any advances pursuant to Section 10 until a final determination is
made with respect to Indemnitee’s entitlement to indemnification (as to which all rights of appeal have been exhausted or lapsed).
(d) If a determination shall
have been made pursuant to Section 12(a) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be
bound by such determination in Enforcement Proceeding, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification,
or (ii) a prohibition of such indemnification under applicable law.
(e) The Company shall be precluded
from asserting in any Enforcement Proceeding that the procedures and presumptions of this Agreement are not valid, binding and enforceable
and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement.
(f) The Company shall indemnify
and hold harmless Indemnitee to the fullest extent permitted by law against all Expenses (assuming for purposes of this sentence that
all references to a Proceeding in the definition of Expenses were references to an Enforcement Proceeding) and, if requested by Indemnitee,
shall (within ten (10) days after the Company’s receipt of such written request) pay to Indemnitee, to the fullest extent permitted
by applicable law, such Expenses which are incurred by Indemnitee in connection with any Enforcement Proceeding brought by Indemnitee:
(i) to enforce Indemnitee’s rights under, or to recover damages for breach of, this Agreement or any other indemnification, hold
harmless, exoneration, advancement or contribution agreement or provision of the Charter, or the Bylaws now or hereafter in effect; or
(ii) for recovery or advances under any insurance policy maintained by any person for the benefit of Indemnitee, regardless of the outcome
and whether Indemnitee ultimately is determined to be entitled to such indemnification, hold harmless or exoneration right, advancement,
contribution or insurance recovery, as the case may be (unless such Enforcement Proceeding was not brought by Indemnitee in good faith).
(g) Interest shall be paid
by the Company to Indemnitee at the legal rate under Delaware law for amounts which the Company indemnifies, holds harmless or exonerates,
or advances, or is obliged to indemnify, hold harmless or exonerate or advance for the period commencing with the date on which Indemnitee
requests indemnification, to be held harmless, exonerated, contribution, reimbursement or advancement of any Expenses and ending with
the date on which such payment is made to Indemnitee by or on behalf of the Company.
15. SECURITY.
Notwithstanding anything herein to the contrary, to the extent requested by Indemnitee and approved by the Board, the Company may at any
time and from time to time provide security to Indemnitee for the Company’s obligations hereunder through an irrevocable bank line
of credit, funded trust or other collateral. Any such security, once provided to Indemnitee, may not be revoked or released without the
prior written consent of Indemnitee.
16. NON-EXCLUSIVITY;
SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
(a) The rights of Indemnitee
as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under
applicable law, the Charter, the Bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment,
alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement
in respect of any Proceeding (regardless of when such Proceeding is first threatened, commenced or completed) or claim, issue or matter
therein arising out of, or related to, any action taken or omitted by such Indemnitee in Indemnitee’s Corporate Status prior to
such amendment, alteration or repeals, except as may otherwise be expressly set forth in such amendment, alteration or repeals and mutually
agreed by Indemnitee and the Company. To the extent that a change in applicable law, whether by statute or judicial decision, permits
greater indemnification, hold harmless or exoneration rights or advancement of expenses than would be afforded currently under the Charter,
the Bylaws or this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits
so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other
right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other right or remedy.
(b) The Delaware General Corporation
Law (the “DGCL”), the Charter and the Bylaws permit the Company to purchase and maintain insurance or furnish similar
protection or make other arrangements including, but not limited to, providing a trust fund, letter of credit, or surety bond (“Indemnification
Arrangements”) on behalf of Indemnitee against any liability asserted against Indemnitee or incurred by or on behalf of Indemnitee
or in such capacity as a director, officer, employee or agent of the Company, or arising out of Indemnitee’s status as such, whether
or not the Company would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement or under
the DGCL, as it may then be in effect. The purchase, establishment, and maintenance of any such Indemnification Arrangement shall not
in any way limit or affect the rights and obligations of the Company or of Indemnitee under this Agreement except as expressly provided
herein, and the execution and delivery of this Agreement by the Company and Indemnitee shall not in any way limit or affect the rights
and obligations of the Company or the other party or parties thereto under any such Indemnification Arrangement.
(c) To the extent that any
member of the Company Group maintains an insurance policy or policies providing liability insurance for directors, officers, trustees,
partners, managers, managing members, fiduciaries, employees, or agents of the Company Group or of any other Enterprise which such person
serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to
the maximum extent of the coverage available for any such director, officer, trustee, partner, managers, managing member, fiduciary, employee
or agent under such policy or policies. If, at the time the Company receives notice from any source of a Proceeding as to which Indemnitee
is a party or a participant (as a witness, deponent or otherwise), the Company has director and officer liability insurance in effect,
the Company shall give prompt notice of such Proceeding to the insurers in accordance with the procedures set forth in the respective
policies. The Company shall thereafter take or cause to be taken all necessary or desirable action to cause such insurers to pay, on behalf
of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies.
(d) In the event of any payment
under this Agreement, the Company, to the fullest extent permitted by law, shall be subrogated to the extent of such payment to all of
the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including
execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
(e) The Company’s obligation
to indemnify, hold harmless, exonerate or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company
as a director, officer, trustee, partner, manager, managing member, fiduciary, employee or agent of any other Enterprise shall be reduced
by any amount Indemnitee has actually received as indemnification, hold harmless or exoneration payments or advancement of expenses from
such Enterprise. Notwithstanding any other provision of this Agreement to the contrary, (i) Indemnitee shall have no obligation to reduce,
offset, allocate, pursue or apportion any indemnification, hold harmless, exoneration, advancement, contribution or insurance coverage
among multiple parties possessing such duties to Indemnitee prior to the Company’s satisfaction and performance of all its obligations
under this Agreement, and (ii) the Company shall perform fully its obligations under this Agreement without regard to whether Indemnitee
holds, may pursue or has pursued any indemnification, advancement, hold harmless, exoneration, contribution or insurance coverage rights
against any person or entity other than the Company.
17. DURATION
OF AGREEMENT. All agreements and obligations of the Company contained herein shall continue during the period Indemnitee serves as
a director or officer of the Company or as a director, officer, trustee, partner, manager, managing member, fiduciary, employee or agent
of any other corporation, partnership, joint venture, trust, employee benefit plan or other Enterprise which Indemnitee serves at the
request of the Company and shall continue thereafter so long as Indemnitee shall be subject to any possible Proceeding or Enforcement
Proceeding (including any rights of appeal thereto) by reason of Indemnitee’s Corporate Status, whether or not Indemnitee is acting
in any such capacity at the time any liability or expense is incurred for which indemnification or advancement can be provided under this
Agreement.
18. SEVERABILITY.
If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a)
the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of
any Section, paragraph or sentence of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that
is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to
the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable
law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section, paragraph or sentence of this Agreement containing any such provision
held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect
to the intent manifested thereby.
19. ENFORCEMENT
AND BINDING EFFECT.
(a) The Company expressly
confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee
to serve as a director, officer or key employee of the Company Group, and the Company acknowledges that Indemnitee is relying upon this
Agreement in serving as a director, officer or key employee of the Company Group.
(b) Without limiting any of
the rights of Indemnitee under the Charter or Bylaws of the Company as they may be amended from time to time, this Agreement constitutes
the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings,
oral, written and implied, between the parties hereto with respect to the subject matter hereof.
(c) The indemnification, hold
harmless, exoneration and advancement of expenses rights provided by or granted pursuant to this Agreement shall be binding upon and be
enforceable by the parties hereto and their respective successors and permitted assigns (including any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, but subject to
such successor’s compliance with Section 19(d)), shall continue as to an Indemnitee who has ceased to be a director, officer,
employee or agent of the Company or a director, officer, trustee, general partner, manager, managing member, fiduciary, employee or agent
of any other Enterprise at the Company’s request, and shall inure to the benefit of Indemnitee and Indemnitee’s spouse, permitted
assigns, heirs, devisees, executors and administrators and other legal representatives.
(d) The Company shall require
and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all or a substantial
part, of the business and/or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee, expressly to
assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if
no such succession had taken place.
(e) The Company and Indemnitee
agree herein that a monetary remedy for breach of this Agreement, at some later date, may be inadequate, impracticable and difficult of
proof, and further agree that such breach may cause Indemnitee irreparable harm. Accordingly, the parties hereto agree that Indemnitee
may, to the fullest extent permitted by law, enforce this Agreement by seeking, among other things, injunctive relief and/or specific
performance hereof, without any necessity of showing actual damage or irreparable harm and that by seeking injunctive relief and/or specific
performance, Indemnitee shall not be precluded from seeking or obtaining any other relief to which Indemnitee may be entitled. The Company
and Indemnitee further agree that Indemnitee shall, to the fullest extent permitted by law, be entitled to such specific performance and
injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, without the necessity of
posting bonds or other security in connection therewith. The Company acknowledges that in the absence of a waiver, a bond or other security
may be required of Indemnitee by a court of competent jurisdiction. The Company hereby waives any such requirement of such a bond or other
security to the fullest extent permitted by law.
20. MODIFICATION
AND WAIVER. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by the Company
and Indemnitee. No waiver of any provision of this Agreement shall be enforceable unless in writing and signed by the party against whom
it is to be enforced. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions
of this Agreement nor shall any waiver constitute a continuing waiver.
21. NOTICES.
All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly
given (i) if delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, or
(ii) mailed by certified or registered mail with postage prepaid, on the third (3rd) business day after the date on which it is so mailed:
(a) If to Indemnitee, at the
address indicated on the signature page of this Agreement, or such other address as Indemnitee shall provide in writing to the Company.
(b) If to the Company, to:
Envoy Medical, Inc.
[4875 White Bear Parkway
White Bear Lake, MN 55110
Attn: Brent Lucas, Chief Executive Officer]
With a copy, which shall not constitute notice, to
Morrison & Foerster LLP
2100 L Street NW, Suite 900
Washington, DC 20037
Attn: David Slotkin; Justin R. Salon; Andrew P. Campbell
or to any other address as may have been furnished to Indemnitee in writing by the Company.
22. APPLICABLE
LAW AND CONSENT TO JURISDICTION. This Agreement and the legal relations among the parties shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with respect to any
arbitration commenced by Indemnitee pursuant to Section 14(a) of this Agreement, to the fullest extent permitted by law, the Company
and Indemnitee hereby irrevocably and unconditionally: (a) agree that any action or proceeding arising out of or in connection with this
Agreement shall be brought only in the Delaware Court and not in any other state or federal court in the United States of America or any
court in any other country; (b) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding
arising out of or in connection with this Agreement; (c) waive any objection to the laying of venue of any such action or proceeding in
the Delaware Court; and (d) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware
Court has been brought in an improper or inconvenient forum, or is subject (in whole or in part) to a jury trial. To the fullest extent
permitted by law, the parties hereby agree that the mailing of process and other papers in connection with any such action or proceeding
in the manner provided by Section 21 or in such other manner as may be permitted by law, shall be valid and sufficient service
thereof.
23. IDENTICAL
COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against
whom enforceability is sought needs to be produced to evidence the existence of this Agreement.
24. MISCELLANEOUS.
Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate. The headings of the paragraphs
of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction
thereof.
25. ADDITIONAL
ACTS. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required
to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected
or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement.
26. MAINTENANCE
OF INSURANCE. The Company shall use commercially reasonable efforts to obtain and maintain in effect during the entire period for
which the Company is obligated to indemnify the Indemnitee under this Agreement, one or more policies of insurance with reputable insurance
companies to provide the officers/directors of the Company with coverage for losses from wrongful acts and omissions and to ensure the
Company’s performance of its indemnification obligations under this Agreement. The Indemnitee shall be covered by such policy or
policies in accordance with its or their terms to the maximum extent of the coverage available for any such director or officer under
such policy or policies. In all such insurance policies, the Indemnitee shall be named as an insured in such a manner as to provide the
Indemnitee with the same rights and benefits as are accorded to the most favorably insured of the Company’s directors and officers.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused
this Indemnity Agreement to be signed as of the day and year first above written.
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ENVOY MEDICAL, INC. |
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INDEMNITEE |
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[D&O] |
[Signature Page to Indemnity Agreement]
Schedule A
The following directors and officers have signed
the Indemnification Agreement and all of them are dated September 29, 2023:
Brent Lucas
Charles Brynelsen
Glen A. Taylor
Janis Smith-Gomez
Mona Patel
Susan J. Kantor
Whitney Haring-Smith
13
Exhibit 10.22
Envoy Medical, Inc.
2023 Equity Incentive Plan
Adopted by the Board of Directors: April 17,
2023
Approved by the Stockholders: September 27,
2023
1. General.
(a) Plan
Purpose. The purpose of the Plan is to further align the interests of eligible participants with those of the Company’s stockholders
by providing incentive compensation opportunities tied to the performance of the Company and its Common Stock. The Plan is intended to
advance the interests of the Company and increase stockholder value by attracting, retaining and motivating key personnel upon whose judgment,
initiative and effort the successful conduct of the Company’s business is largely dependent.
(b) Available
Awards. The Plan provides for the grant of the following Awards: (i) Incentive Stock Options; (ii) Nonstatutory Stock Options; (iii)
SARs; (iv) Restricted Stock Awards; (v) RSU Awards; (vi) Performance Awards; and (vii) Other Awards.
(c) Adoption
Date; Effective Date. The Plan will come into existence on the Adoption Date, but no Award may be granted prior to the Effective Date.
2. Shares
Subject to the Plan.
(a) Share
Reserve. Subject to adjustment in accordance with Section 2(c) and any adjustments as necessary to implement any Capitalization Adjustments,
the aggregate number of shares of Common Stock that may be issued pursuant to Awards will be 4,000,000 shares, provided that until such
time as the Milestone is achieved the aggregate number of shares of Common Stock that may be issued pursuant to Awards will be 2,500,000
shares.
(b) Aggregate
Incentive Stock Option Limit. Notwithstanding anything to the contrary in Section 2(a) and subject to any adjustments as necessary
to implement any Capitalization Adjustments, the aggregate maximum number of shares of Common Stock that may be issued pursuant to the
exercise of Incentive Stock Options is 4,000,000 shares.
(c) Share
Reserve Operation.
(i) Limit
Applies to Common Stock Issued Pursuant to Awards. For clarity, the Share Reserve is a limit on the number of shares of Common Stock
that may be issued pursuant to Awards and does not limit the granting of Awards, except that the Company will keep available at all times
the number of shares of Common Stock reasonably required to satisfy its obligations to issue shares pursuant to such Awards. Shares may
be issued in connection with a merger or acquisition as permitted by, as applicable, Nasdaq Listing Rule 5635(c), NYSE Listed Company
Manual Section 303A.08, NYSE American Company Guide Section 711 or other applicable rule, and such issuance will not reduce the number
of shares available for issuance under the Plan.
(ii) Actions
that Do Not Constitute Issuance of Common Stock and Do Not Reduce Share Reserve. The following actions do not result in an issuance
of shares under the Plan and accordingly do not reduce the number of shares subject to the Share Reserve and available for issuance under
the Plan: (1) the expiration or termination of any portion of an Award without the shares covered by such portion of the Award having
been issued; (2) the settlement of any portion of an Award in cash (i.e., the Participant receives cash rather than Common Stock);
(3) the withholding of shares that would otherwise be issued by the Company to satisfy the exercise, strike or purchase price of an Award;
or (4) the withholding of shares that would otherwise be issued by the Company to satisfy a tax withholding obligation in connection with
an Award.
(iii) Reversion
of Previously Issued Shares of Common Stock to Share Reserve. The following shares of Common Stock previously issued pursuant to an
Award and accordingly initially deducted from the Share Reserve will be added back to the Share Reserve and again become available for
issuance under the Plan: (1) any shares that are forfeited back to or repurchased by the Company because of a failure to meet a contingency
or condition required for the vesting of such shares; (2) any shares that are reacquired by the Company to satisfy the exercise, strike
or purchase price of an Award; and (3) any shares that are reacquired by the Company to satisfy a tax withholding obligation in connection
with an Award.
3. Eligibility
and Limitations.
(a) Eligible
Award Recipients. Subject to the terms of the Plan, Employees, Directors and Consultants are eligible to receive Awards.
(b) Specific
Award Limitations.
(i) Limitations
on Incentive Stock Option Recipients. Incentive Stock Options may be granted only to Employees of the Company or a “parent corporation”
or “subsidiary corporation” thereof (as such terms are defined in Sections 424(e) and (f) of the Code).
(ii) Incentive
Stock Option $100,000 Limitation. To the extent that the aggregate Fair Market Value (determined at the time of grant) of Common Stock
with respect to which Incentive Stock Options are exercisable for the first time by any Optionholder during any calendar year (under all
plans of the Company and any Affiliates) exceeds $100,000 (or such other limit established in the Code) or otherwise does not comply with
the rules governing Incentive Stock Options, the Options or portions thereof that exceed such limit (according to the order in which they
were granted) or otherwise do not comply with such rules will be treated as Nonstatutory Stock Options, notwithstanding any contrary provision
of the applicable Option Agreement(s).
(iii) Limitations
on Incentive Stock Options Granted to Ten Percent Stockholders. A Ten Percent Stockholder may not be granted an Incentive Stock Option
unless (1) the exercise price of such Option is at least 110% of the Fair Market Value on the date of grant of such Option and (2) the
Option is not exercisable after the expiration of five years from the date of grant of such Option.
(iv) Limitations
on Nonstatutory Stock Options and SARs. Nonstatutory Stock Options and SARs may not be granted to Employees, Directors and Consultants
unless the stock underlying such Awards is treated as “service recipient stock” under Section 409A or unless such Awards otherwise
comply with the requirements of Section 409A.
(c) Aggregate
Incentive Stock Option Limit. The aggregate maximum number of shares of Common Stock that may be issued pursuant to the exercise of
Incentive Stock Options is the number of shares specified in Section 2(b).
4. Options
and Stock Appreciation Rights.
Each Option and SAR will have such terms and conditions
as determined by the Board. Each Option will be designated in writing as an Incentive Stock Option or Nonstatutory Stock Option at the
time of grant; provided, however, that if an Option is not so designated or if an Option designated as an Incentive Stock Option fails
to qualify as an Incentive Stock Option, then such Option will be a Nonstatutory Stock Option, and the shares purchased upon exercise
of each type of Option will be separately accounted for. Each SAR will be denominated in shares of Common Stock equivalents. The terms
and conditions of separate Options and SARs need not be identical; provided, however, that each Option Agreement and SAR Agreement will
conform (through incorporation of provisions hereof by reference in the Award Agreement or otherwise) to the substance of each of the
following provisions:
(a) Term.
Subject to Section 3(b) regarding Ten Percent Stockholders, no Option or SAR will be exercisable after the expiration of ten years from
the date of grant of such Award or such shorter period specified in the Award Agreement.
(b) Exercise
or Strike Price. Subject to Section 3(b) regarding Ten Percent Stockholders, the exercise or strike price of each Option or SAR will
not be less than 100% of the Fair Market Value on the date of grant of such Award. Notwithstanding the foregoing, an Option or SAR may
be granted with an exercise or strike price lower than 100% of the Fair Market Value on the date of grant of such Award if such Award
is granted pursuant to an assumption of or substitution for another option or stock appreciation right pursuant to a Corporate Transaction
and in a manner consistent with the provisions of Sections 409A and, if applicable, 424(a) of the Code.
(c) Exercise
Procedure and Payment of Exercise Price for Options. In order to exercise an Option, the Participant must provide notice of exercise
to the Plan Administrator in accordance with the procedures specified in the Option Agreement or otherwise provided by the Company. The
Board has the authority to grant Options that do not permit all of the following methods of payment (or otherwise restrict the ability
to use certain methods) and to grant Options that require the consent of the Company to utilize a particular method of payment. The exercise
price of an Option may be paid, to the extent permitted by Applicable Law and as determined by the Board, by one or more of the following
methods of payment to the extent set forth in the Option Agreement:
(i) by
cash or check, bank draft or money order payable to the Company;
(ii) pursuant
to a “cashless exercise” program developed under Regulation T as promulgated by the Federal Reserve Board that, prior to the
issuance of the Common Stock subject to the Option, results in either the receipt of cash (or check) by the Company or the receipt of
irrevocable instructions to pay the exercise price to the Company from the sales proceeds;
(iii) by
delivery to the Company (either by actual delivery or attestation) of shares of Common Stock that are already owned by the Participant
free and clear of any liens, claims, encumbrances or security interests, with a Fair Market Value on the date of exercise that does not
exceed the exercise price, provided that (1) at the time of exercise the Common Stock is publicly traded, (2) any remaining balance of
the exercise price not satisfied by such delivery is paid by the Participant in cash or other permitted form of payment, (3) such delivery
would not violate any Applicable Law or agreement restricting the redemption of the Common Stock, (4) any certificated shares are endorsed
or accompanied by an executed assignment separate from certificate, and (5) such shares have been held by the Participant for any minimum
period necessary to avoid adverse accounting treatment as a result of such delivery;
(iv) if
the Option is a Nonstatutory Stock Option, by a “net exercise” arrangement pursuant to which the Company will reduce the number
of shares of Common Stock issuable upon exercise by the largest whole number of shares with a Fair Market Value on the date of exercise
that does not exceed the exercise price, provided that (1) such shares used to pay the exercise price will not be exercisable thereafter
and (2) any remaining balance of the exercise price not satisfied by such net exercise is paid by the Participant in cash or other permitted
form of payment; or
(v) in
any other form of consideration that may be acceptable to the Board and permissible under Applicable Law.
(d) Exercise
Procedure and Payment of Appreciation Distribution for SARs. In order to exercise any SAR, the Participant must provide notice of
exercise to the Plan Administrator in accordance with the SAR Agreement. The appreciation distribution payable to a Participant upon the
exercise of a SAR will not be greater than an amount equal to the excess of (i) the aggregate Fair Market Value on the date of exercise
of a number of shares of Common Stock equal to the number of Common Stock equivalents that are vested and being exercised under such SAR,
over (ii) the strike price of such SAR. Such appreciation distribution may be paid to the Participant in the form of Common Stock or cash
(or any combination of Common Stock and cash) or in any other form of payment, as determined by the Board and specified in the SAR Agreement.
(e) Transferability.
Options and SARs may not be transferred to third party financial institutions for value. The Board may impose such additional limitations
on the transferability of an Option or SAR as it determines. In the absence of any such determination by the Board, the following restrictions
on the transferability of Options and SARs will apply, provided that except as explicitly provided herein, neither an Option nor a SAR
may be transferred for consideration and provided, further, that if an Option is an Incentive Stock Option, such Option may be deemed
to be a Nonstatutory Stock Option as a result of such transfer:
(i) Restrictions
on Transfer. An Option or SAR will not be transferable, except by will or by the laws of descent and distribution, and will be exercisable
during the lifetime of the Participant only by the Participant; provided, however, that the Board may permit transfer of an Option or
SAR in a manner that is not prohibited by applicable tax and securities laws upon the Participant’s request, including to a trust
if the Participant is considered to be the sole beneficial owner of such trust (as determined under Section 671 of the Code and applicable
state law) while such Option or SAR is held in such trust, provided that the Participant and the trustee enter into a transfer and other
agreements required by the Company.
(ii) Domestic
Relations Orders. Notwithstanding the foregoing, subject to the execution of transfer documentation in a format acceptable to the
Company and subject to the approval of the Board or a duly authorized Officer, an Option or SAR may be transferred pursuant to a domestic
relations order.
(f) Vesting.
The Board may impose such restrictions on or conditions to the vesting and/or exercisability of an Option or SAR as determined by the
Board. Except as otherwise provided in the Award Agreement or other written agreement between a Participant and the Company or an Affiliate,
vesting of Options and SARs will cease upon termination of the Participant’s Continuous Service.
(g) Termination
of Continuous Service for Cause. Except as explicitly otherwise provided in the Award Agreement or other written agreement between
a Participant and the Company or an Affiliate, if a Participant’s Continuous Service is terminated for Cause, the Participant’s
Options and SARs will terminate and be forfeited immediately upon such termination of Continuous Service, and the Participant will be
prohibited from exercising any portion (including any vested portion) of such Awards on and after the date of such termination of Continuous
Service and the Participant will have no further right, title or interest in such forfeited Award, the shares of Common Stock subject
to the forfeited Award, or any consideration in respect of the forfeited Award.
(h) Post-Termination
Exercise Period Following Termination of Continuous Service for Reasons Other than Cause. Subject to Section 4(i), if a Participant’s
Continuous Service terminates for any reason other than for Cause, the Participant may exercise his or her Option or SAR to the extent
vested, but only within the following period of time or, if applicable, such other period of time provided in the Award Agreement or other
written agreement between a Participant and the Company or an Affiliate; provided, however, that in no event may such Award be exercised
after the expiration of its maximum term (as set forth in Section 4(a)):
(i) three
months following the date of such termination if such termination is a termination without Cause (other than any termination due to the
Participant’s Disability or death);
(ii) 12
months following the date of such termination if such termination is due to the Participant’s Disability;
(iii) 12
months following the date of such termination if such termination is due to the Participant’s death; or
(iv) 12
months following the date of the Participant’s death if such death occurs following the date of such termination but during the
period such Award is otherwise exercisable (as provided in (i) or (ii) above).
Following the date of such termination, to the
extent the Participant does not exercise such Award within the applicable Post-Termination Exercise Period (or, if earlier, prior to the
expiration of the maximum term of such Award), such unexercised portion of the Award will terminate, and the Participant will have no
further right, title or interest in the terminated Award, the shares of Common Stock subject to the terminated Award, or any consideration
in respect of the terminated Award.
(i) Restrictions
on Exercise; Extension of Exercisability. A Participant may not exercise an Option or SAR at any time that the issuance of shares
of Common Stock upon such exercise would violate Applicable Law. Except as otherwise provided in the Award Agreement or other written
agreement between a Participant and the Company or an Affiliate, if a Participant’s Continuous Service terminates for any reason
other than for Cause and, at any time during the last thirty days of the applicable Post-Termination Exercise Period: (i) the exercise
of the Participant’s Option or SAR would be prohibited solely because the issuance of shares of Common Stock upon such exercise
would violate Applicable Law, or (ii) the immediate sale of any shares of Common Stock issued upon such exercise would violate the Company’s
Trading Policy, then the applicable Post-Termination Exercise Period will be extended to the last day of the calendar month that commences
following the date the Award would otherwise expire, with an additional extension of the exercise period to the last day of the next calendar
month to apply if any of the foregoing restrictions apply at any time during such extended exercise period, generally without limitation
as to the maximum permitted number of extensions); provided, however, that in no event may such Award be exercised after the expiration
of its maximum term (as set forth in Section 4(a)).
(j) Non-Exempt
Employees. No Option or SAR, whether or not vested, granted to an Employee who is a non-exempt employee for purposes of the Fair Labor
Standards Act of 1938, as amended, will be first exercisable for any shares of Common Stock until at least six months following the date
of grant of such Award. Notwithstanding the foregoing, in accordance with the provisions of the Worker Economic Opportunity Act, any vested
portion of such Award may be exercised earlier than six months following the date of grant of such Award in the event of (i) such Participant’s
death or Disability, (ii) a Corporate Transaction in which such Award is not assumed, continued or substituted, or (iii) such Participant’s
retirement (as such term may be defined in the Award Agreement or another applicable agreement or, in the absence of any such definition,
in accordance with the Company’s then current employment policies and guidelines). This Section 4(j) is intended to operate so that
any income derived by a non-exempt employee in connection with the exercise or vesting of an Option or SAR will be exempt from his or
her regular rate of pay.
(k) Whole
Shares. Options and SARs may be exercised only with respect to whole shares of Common Stock or their equivalents.
5. Awards
Other Than Options and Stock Appreciation Rights.
(a) Restricted
Stock Awards and RSU Awards. Each Restricted Stock Award and RSU Award will have such terms and conditions as determined by the Board;
provided, however, that each Restricted Stock Award Agreement and RSU Award Agreement will conform (through incorporation of the provisions
hereof by reference in the Award Agreement or otherwise) to the substance of each of the following provisions:
(i) Form
of Award.
(1) Restricted
Stock Awards. To the extent consistent with the Company’s Bylaws, at the Board’s election, shares of Common Stock subject
to a Restricted Stock Award may be (A) held in book entry form subject to the Company’s instructions until such shares become vested
or any other restrictions lapse, or (B) evidenced by a certificate, which certificate will be held in such form and manner as determined
by the Board. Unless otherwise determined by the Board, a Participant will have voting and other rights as a stockholder of the Company
with respect to any shares subject to a Restricted Stock Award.
(2) RSU
Awards. An RSU Award represents a Participant’s right to be issued on a future date the number of shares of Common Stock that is
equal to the number of restricted stock units subject to the RSU Award. As a holder of an RSU Award, a Participant is an unsecured creditor
of the Company with respect to the Company’s unfunded obligation, if any, to issue shares of Common Stock in settlement of such Award
and nothing contained in the Plan or any RSU Agreement, and no action taken pursuant to its provisions, will create or be construed to
create a trust of any kind or a fiduciary relationship between a Participant and the Company or an Affiliate or any other person. A Participant
will not have voting or any other rights as a stockholder of the Company with respect to any RSU Award (unless and until shares are actually
issued in settlement of a vested RSU Award).
(ii) Consideration.
(1) Restricted
Stock Awards. A Restricted Stock Award may be granted in consideration for (A) cash or check, bank draft or money order payable to the
Company, (B) services to the Company or an Affiliate, or (C) any other form of consideration as the Board may determine and permissible
under Applicable Law.
(2) RSU
Awards. Unless otherwise determined by the Board at the time of grant, an RSU Award will be granted in consideration for the Participant’s
services to the Company or an Affiliate, such that the Participant will not be required to make any payment to the Company (other than
such services) with respect to the grant or vesting of the RSU Award, or the issuance of any shares of Common Stock pursuant to the RSU
Award. If, at the time of grant, the Board determines that any consideration must be paid by the Participant (in a form other than the
Participant’s services to the Company or an Affiliate) upon the issuance of any shares of Common Stock in settlement of the RSU
Award, such consideration may be paid in any form of consideration as the Board may determine and permissible under Applicable Law.
(iii) Vesting.
The Board may impose such restrictions on or conditions to the vesting of a Restricted Stock Award or RSU Award as determined by the Board.
Except as otherwise provided in the Award Agreement or other written agreement between a Participant and the Company or an Affiliate,
vesting of Restricted Stock Awards and RSU Awards will cease upon termination of the Participant’s Continuous Service.
(iv) Termination
of Continuous Service. Except as otherwise provided in the Award Agreement or other written agreement between a Participant and the
Company or an Affiliate, if a Participant’s Continuous Service terminates for any reason, (1) the Company may receive through a
forfeiture condition or a repurchase right any or all of the shares of Common Stock held by the Participant under his or her Restricted
Stock Award that have not vested as of the date of such termination as set forth in the Restricted Stock Award Agreement and the Participant
will have no further right, title or interest in the Restricted Stock Award, the shares of Common Stock subject to the Restricted Stock
Award, or any consideration in respect of the Restricted Stock Award and (2) any portion of his or her RSU Award that has not vested will
be forfeited upon such termination and the Participant will have no further right, title or interest in the RSU Award, the shares of Common
Stock issuable pursuant to the RSU Award, or any consideration in respect of the RSU Award.
(v) Dividends
and Dividend Equivalents. Dividends or dividend equivalents may be paid or credited, as applicable, with respect to any shares of
Common Stock subject to a Restricted Stock Award or RSU Award, as determined by the Board and specified in the Award Agreement.
(vi) Settlement
of RSU Awards. An RSU Award may be settled by the issuance of shares of Common Stock or cash (or any combination thereof) or in any
other form of payment, as determined by the Board and specified in the RSU Award Agreement. At the time of grant, the Board may determine
to impose such restrictions or conditions that delay such delivery to a date following the vesting of the RSU Award.
(b) Performance
Awards. With respect to any Performance Award, the length of any Performance Period, the Performance Goals to be achieved during the
Performance Period, the other terms and conditions of such Award, and the measure of whether and to what degree such Performance Goals
have been attained will be determined by the Board.
(c) Other
Awards. Other forms of Awards valued in whole or in part by reference to, or otherwise based on, Common Stock, including the appreciation
in value thereof, may be granted either alone or in addition to Awards provided for under Section 4 and the preceding provisions of this
Section 5. Subject to the provisions of the Plan, the Board will have sole and complete discretion to determine the persons to whom and
the time or times at which such Other Awards will be granted, the number of shares of Common Stock (or the cash equivalent thereof) to
be granted pursuant to such Other Awards and all other terms and conditions of such Other Awards.
6. Adjustments
upon Changes in Common Stock; Other Corporate Events.
(a) Capitalization
Adjustments. In the event of a Capitalization Adjustment, the Board shall appropriately and proportionately adjust: (i) the class(es)
and maximum number of shares of Common Stock subject to the Plan and the maximum number of shares by which the Share Reserve may annually
increase pursuant to Section 2(a); (ii) the class(es) and maximum number of shares that may be issued pursuant to the exercise of Incentive
Stock Options pursuant to Section 2(b); and (iii) the class(es) and number of securities and exercise price, strike price or purchase
price of Common Stock subject to outstanding Awards. The Board shall make such adjustments, and its determination shall be final, binding
and conclusive. Notwithstanding the foregoing, no fractional shares or rights for fractional shares of Common Stock shall be created in
order to implement any Capitalization Adjustment. The Board shall determine an appropriate equivalent benefit, if any, for any fractional
shares or rights to fractional shares that might be created by the adjustments referred to in the preceding provisions of this Section.
(b) Dissolution
or Liquidation. Except as otherwise provided in the Award Agreement, in the event of a dissolution or liquidation of the Company,
all outstanding Awards (other than Awards consisting of vested and outstanding shares of Common Stock not subject to a forfeiture condition
or the Company’s right of repurchase) will terminate immediately prior to the completion of such dissolution or liquidation, and
the shares of Common Stock subject to the Company’s repurchase rights or subject to a forfeiture condition may be repurchased or
reacquired by the Company notwithstanding the fact that the holder of such Award is providing Continuous Service, provided, however, that
the Board may determine to cause some or all Awards to become fully vested, exercisable and/or no longer subject to repurchase or forfeiture
(to the extent such Awards have not previously expired or terminated) before the dissolution or liquidation is completed but contingent
on its completion.
(c) Corporate
Transaction. Except as set forth in Section 11, in the event of a Corporate Transaction, a Participant’s Award will be treated,
to the extent determined by the Board to be permitted under Section 409A, in accordance with one or more of the following methods as determined
by the Board in its sole discretion: (i) settle such Awards for an amount (as determined in the sole discretion of the Board) of cash
or securities, where in the case of stock options and stock appreciation rights, the value of such amount, if any, will be equal to the
in-the-money spread value (if any) of such Awards; (ii) provide for the assumption of or the issuance of substitute awards that will substantially
preserve the otherwise applicable terms of any affected Awards previously granted under the Plan, as determined by the Board in its sole
discretion; (iii) modify the terms of such awards to add events, conditions or circumstances (including termination of employment or service
within a specified period after a Corporate Transaction) upon which the vesting of such Awards or lapse of restrictions thereon will accelerate;
(iv) deem any performance conditions satisfied at target, maximum or actual performance through closing or provide for the performance
conditions to continue (as is or as adjusted by the Board) after closing or (v) provide that for a period of at least 20 days prior to
the Corporate Transaction, any stock options or stock appreciation rights that would not otherwise become exercisable prior to the Corporate
Transaction will be exercisable as to all shares subject thereto (but any such exercise will be contingent upon and subject to the occurrence
of the Corporate Transaction and if the Corporate Transaction does not take place within a specified period after giving such notice for
any reason whatsoever, the exercise will be null and void) and that any stock options or stock appreciation rights not exercised prior
to the consummation of the Corporate Transaction will terminate and be of no further force and effect as of the consummation of the Corporate
Transaction. For the avoidance of doubt, in the event of a Corporate Transaction where all Options and SARs are settled for an amount
(as determined in the sole discretion of the Corporate Transaction) of cash or securities, the Board may, in its sole discretion, terminate
any Option or SAR for which the exercise price is equal to or exceeds the per share value of the consideration to be paid in the Corporate
Transaction without payment of consideration therefor.
(d) Appointment
of Stockholder Representative. As a condition to the receipt of an Award under this Plan, a Participant will be deemed to have agreed
that the Award will be subject to the terms of any agreement governing a Corporate Transaction involving the Company, including, without
limitation, a provision for the appointment of a stockholder representative that is authorized to act on the Participant’s behalf
with respect to any escrow, indemnities and any contingent consideration.
(e) No
Restriction on Right to Undertake Transactions. The grant of any Award under the Plan and the issuance of shares pursuant to any Award
does not affect or restrict in any way the right or power of the Company or the stockholders of the Company to make or authorize any adjustment,
recapitalization, reorganization or other change in the Company’s capital structure or its business, any merger or consolidation
of the Company, any issue of stock or of options, rights or options to purchase stock or of bonds, debentures, preferred or prior preference
stocks whose rights are superior to or affect the Common Stock or the rights thereof or which are convertible into or exchangeable for
Common Stock, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceeding, whether of a similar character or otherwise.
7. Administration.
(a) Administration
by Board. The Board will administer the Plan unless and until the Board delegates administration of the Plan to a Committee or Committees,
as provided in subsection (c) below.
(b) Powers
of Board. The Board will have the power, subject to, and within the limitations of, the express provisions of the Plan:
(i) To
determine from time to time (1) which of the persons eligible under the Plan will be granted Awards; (2) when and how each Award will
be granted; (3) what type or combination of types of Award will be granted; (4) the provisions of each Award granted (which need not be
identical), including the time or times when a person will be permitted to receive an issuance of Common Stock or other payment pursuant
to an Award; (5) the number of shares of Common Stock or cash equivalent with respect to which an Award will be granted to each such person;
(6) the Fair Market Value applicable to an Award; and (7) the terms of any Performance Award that is not valued in whole or in part by
reference to, or otherwise based on, the Common Stock, including the amount of cash payment or other property that may be earned and the
timing of payment.
(ii) To
construe and interpret the Plan and Awards granted under it, and to establish, amend and revoke rules and regulations for its administration.
The Board, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan or in any Award Agreement, in
a manner and to the extent it deems necessary or expedient to make the Plan or Award fully effective.
(iii) To
settle all controversies regarding the Plan and Awards granted under it.
(iv) To
accelerate the time at which an Award may first be exercised or the time during which an Award or any part thereof will vest, notwithstanding
the provisions in the Award Agreement stating the time at which it may first be exercised or the time during which it will vest.
(v) To
prohibit the exercise of any Option, SAR or other exercisable Award during a period of up to 30 days prior to the consummation of any
pending stock dividend, stock split, combination or exchange of shares, merger, consolidation or other distribution (other than normal
cash dividends) of Company assets to stockholders, or any other change affecting the shares of Common Stock or the share price of the
Common Stock including any Corporate Transaction, for reasons of administrative convenience.
(vi) To
suspend or terminate the Plan at any time. Suspension or termination of the Plan will not Materially Impair rights and obligations under
any Award granted while the Plan is in effect except with the written consent of the affected Participant.
(vii) To
amend the Plan in any respect the Board deems necessary or advisable; provided, however, that stockholder approval will be required for
any amendment to the extent required by Applicable Law. Except as provided above, rights under any Award granted before amendment of the
Plan will not be Materially Impaired by any amendment of the Plan unless (1) the Company requests the consent of the affected Participant,
and (2) such Participant consents in writing.
(viii) To
submit any amendment to the Plan for stockholder approval.
(ix) To
approve forms of Award Agreements for use under the Plan and to amend the terms of any one or more Awards, including, but not limited
to, amendments to provide terms more favorable to the Participant than previously provided in the Award Agreement, subject to any specified
limits in the Plan that are not subject to Board discretion; provided however, that, a Participant’s rights under any Award will
not be Materially Impaired by any such amendment unless (1) the Company requests the consent of the affected Participant, and (2) such
Participant consents in writing.
(x) Generally,
to exercise such powers and to perform such acts as the Board deems necessary or expedient to promote the best interests of the Company
and that are not in conflict with the provisions of the Plan or Awards.
(xi) To
adopt such procedures and sub-plans as are necessary or appropriate to permit and facilitate participation in the Plan by, or take advantage
of specific tax treatment for Awards granted to, Employees, Directors or Consultants who are foreign nationals or employed outside the
United States (provided that Board approval will not be necessary for immaterial modifications to the Plan or any Award Agreement to ensure
or facilitate compliance with the laws of the relevant foreign jurisdiction).
(xii) To
effect, at any time and from time to time, subject to the consent of any Participant whose Award is Materially Impaired by such action,
(1) the reduction of the exercise price (or strike price) of any outstanding Option or SAR; (2) the cancellation of any outstanding Option
or SAR and the grant in substitution therefor of (A) a new Option, SAR, Restricted Stock Award, RSU Award or Other Award, under the Plan
or another equity plan of the Company, covering the same or a different number of shares of Common Stock, (B) cash and/or (C) other valuable
consideration (as determined by the Board); or (3) any other action that is treated as a repricing under generally accepted accounting
principles.
(c) Delegation
to Committee.
(i) General.
The Board may delegate some or all of the administration of the Plan to a Committee or Committees. If administration of the Plan is delegated
to a Committee, the Committee will have, in connection with the administration of the Plan, the powers theretofore possessed by the Board
that have been delegated to the Committee, including the power to delegate to another Committee or a subcommittee of the Committee any
of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Board will thereafter be to the
Committee or subcommittee), subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted
from time to time by the Board. Each Committee may retain the authority to concurrently administer the Plan with Committee or subcommittee
to which it has delegated its authority hereunder and may, at any time, revest in such Committee some or all of the powers previously
delegated. The Board may retain the authority to concurrently administer the Plan with any Committee and may, at any time, revest in the
Board some or all of the powers previously delegated.
(ii) Rule
16b-3 Compliance. To the extent an Award is intended to qualify for the exemption from Section 16(b) of the Exchange Act that is available
under Rule 16b-3 of the Exchange Act, the Award will be granted by the Board or a Committee that consists solely of two or more Non-Employee
Directors, as determined under Rule 16b-3(b)(3) of the Exchange Act and thereafter any action establishing or modifying the terms of the
Award will be approved by the Board or a Committee meeting such requirements to the extent necessary for such exemption to remain available.
(d) Effect
of Board’s Decision. All determinations, interpretations and constructions made by the Board or any Committee in good faith
will not be subject to review by any person and will be final, binding and conclusive on all persons.
(e) Delegation
to an Officer. The Board or any Committee may delegate to one or more Officers the authority to do one or both of the following (i)
designate Employees who are not Officers to be recipients of Options and SARs (and, to the extent permitted by Applicable Law, other types
of Awards) and, to the extent permitted by Applicable Law, the terms thereof, and (ii) determine the number of shares of Common Stock
to be subject to such Awards granted to such Employees; provided, however, that the resolutions or charter adopted by the Board or any
Committee evidencing such delegation will specify the total number of shares of Common Stock that may be subject to the Awards granted
by such Officer and that such Officer may not grant an Award to himself or herself. Any such Awards will be granted on the applicable
form of Award Agreement most recently approved for use by the Board or the Committee, unless otherwise provided in the resolutions approving
the delegation authority. Notwithstanding anything to the contrary herein, neither the Board nor any Committee may delegate to an Officer
who is acting solely in the capacity of an Officer (and not also as a Director) the authority to determine the Fair Market Value.
8. Tax
Withholding
(a) Withholding
Authorization. As a condition to acceptance of any Award under the Plan, a Participant authorizes withholding from payroll and any
other amounts payable to such Participant, and otherwise agrees to make adequate provision for (including), any sums required to satisfy
any U.S. federal, state, local and/or foreign tax or social insurance contribution withholding obligations of the Company or an Affiliate,
if any, which arise in connection with the exercise, vesting or settlement of such Award, as applicable. Accordingly, a Participant may
not be able to exercise an Award even though the Award is vested, and the Company shall have no obligation to issue shares of Common Stock
subject to an Award, unless and until such obligations are satisfied.
(b) Satisfaction
of Withholding Obligation. To the extent permitted by the terms of an Award Agreement, the Company may, in its sole discretion, satisfy
any U.S. federal, state, local and/or foreign tax or social insurance withholding obligation relating to an Award by any of the following
means or by a combination of such means: (i) causing the Participant to tender a cash payment; (ii) withholding shares of Common Stock
from the shares of Common Stock issued or otherwise issuable to the Participant in connection with the Award; (iii) withholding cash from
an Award settled in cash; (iv) withholding payment from any amounts otherwise payable to the Participant; (v) by allowing a Participant
to effectuate a “cashless exercise” pursuant to a program developed under Regulation T as promulgated by the Federal Reserve
Board; or (vi) by such other method as may be set forth in the Award Agreement.
(c) No
Obligation to Notify or Minimize Taxes; No Liability to Claims. Except as required by Applicable Law the Company has no duty or obligation
to any Participant to advise such holder as to the time or manner of exercising such Award. Furthermore, the Company has no duty or obligation
to warn or otherwise advise such holder of a pending termination or expiration of an Award or a possible period in which the Award may
not be exercised. The Company has no duty or obligation to minimize the tax consequences of an Award to the holder of such Award and will
not be liable to any holder of an Award for any adverse tax consequences to such holder in connection with an Award. As a condition to
accepting an Award under the Plan, each Participant (i) agrees to not make any claim against the Company, or any of its Officers, Directors,
Employees or Affiliates related to tax liabilities arising from such Award or other Company compensation and (ii) acknowledges that such
Participant was advised to consult with his or her own personal tax, financial and other legal advisors regarding the tax consequences
of the Award and has either done so or knowingly and voluntarily declined to do so. Additionally, each Participant acknowledges any Option
or SAR granted under the Plan is exempt from Section 409A only if the exercise or strike price is at least equal to the “fair market
value” of the Common Stock on the date of grant as determined by the Internal Revenue Service and there is no other impermissible
deferral of compensation associated with the Award. Additionally, as a condition to accepting an Option or SAR granted under the Plan,
each Participant agrees not make any claim against the Company, or any of its Officers, Directors, Employees or Affiliates in the event
that the Internal Revenue Service asserts that such exercise price or strike price is less than the “fair market value” of
the Common Stock on the date of grant as subsequently determined by the Internal Revenue Service.
(d) Withholding
Indemnification. As a condition to accepting an Award under the Plan, in the event that the amount of the Company’s and/or its
Affiliate’s withholding obligation in connection with such Award was greater than the amount actually withheld by the Company and/or
its Affiliates, each Participant agrees to indemnify and hold the Company and/or its Affiliates harmless from any failure by the Company
and/or its Affiliates to withhold the proper amount.
9. Miscellaneous.
(a) Source
of Shares. The stock issuable under the Plan will be shares of authorized but unissued or reacquired Common Stock, including shares
repurchased by the Company on the open market or otherwise.
(b) Use
of Proceeds from Sales of Common Stock. Proceeds from the sale of shares of Common Stock pursuant to Awards will constitute general
funds of the Company.
(c) Corporate
Action Constituting Grant of Awards. Corporate action constituting a grant by the Company of an Award to any Participant will be deemed
completed as of the date of such corporate action, unless otherwise determined by the Board, regardless of when the instrument, certificate,
or letter evidencing the Award is communicated to, or actually received or accepted by, the Participant. In the event that the corporate
records (e.g., Board consents, resolutions or minutes) documenting the corporate action approving the grant contain terms (e.g., exercise
price, vesting schedule or number of shares) that are inconsistent with those in the Award Agreement or related grant documents as a result
of a clerical error in the Award Agreement or related grant documents, the corporate records will control and the Participant will have
no legally binding right to the incorrect term in the Award Agreement or related grant documents.
(d) Stockholder
Rights. No Participant will be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares of
Common Stock subject to such Award unless and until (i) such Participant has satisfied all requirements for exercise of the Award pursuant
to its terms, if applicable, and (ii) the issuance of the Common Stock subject to such Award is reflected in the records of the Company.
(e) No
Employment or Other Service Rights. Nothing in the Plan, any Award Agreement or any other instrument executed thereunder or in connection
with any Award granted pursuant thereto will confer upon any Participant any right to continue to serve the Company or an Affiliate in
the capacity in effect at the time the Award was granted or affect the right of the Company or an Affiliate to terminate at will and without
regard to any future vesting opportunity that a Participant may have with respect to any Award (i) the employment of an Employee with
or without notice and with or without cause, (ii) the service of a Consultant pursuant to the terms of such Consultant’s agreement
with the Company or an Affiliate, or (iii) the service of a Director pursuant to the Bylaws of the Company or an Affiliate, and any applicable
provisions of the corporate law of the state or foreign jurisdiction in which the Company or the Affiliate is incorporated, as the case
may be. Further, nothing in the Plan, any Award Agreement or any other instrument executed thereunder or in connection with any Award
will constitute any promise or commitment by the Company or an Affiliate regarding the fact or nature of future positions, future work
assignments, future compensation or any other term or condition of employment or service or confer any right or benefit under the Award
or the Plan unless such right or benefit has specifically accrued under the terms of the Award Agreement and/or Plan.
(f) Change
in Time Commitment. In the event a Participant’s regular level of time commitment in the performance of his or her services
for the Company and any Affiliates is reduced (for example, and without limitation, if the Participant is an Employee of the Company and
the Employee has a change in status from a full-time Employee to a part-time Employee or takes an extended leave of absence) after the
date of grant of any Award to the Participant, the Board may determine, to the extent permitted by Applicable Law, to (i) make a corresponding
reduction in the number of shares or cash amount subject to any portion of such Award that is scheduled to vest or become payable after
the date of such change in time commitment, and (ii) in lieu of or in combination with such a reduction, extend the vesting or payment
schedule applicable to such Award. In the event of any such reduction, the Participant will have no right with respect to any portion
of the Award that is so reduced or extended.
(g) Execution
of Additional Documents. As a condition to accepting an Award under the Plan, the Participant agrees to execute any additional documents
or instruments necessary or desirable, as determined in the Plan Administrator’s sole discretion, to carry out the purposes or intent
of the Award, or facilitate compliance with securities and/or other regulatory requirements, in each case at the Plan Administrator’s
request.
(h) Electronic
Delivery and Participation. Any reference herein or in an Award Agreement to a “written” agreement or document will include
any agreement or document delivered electronically, filed publicly at www.sec.gov (or any successor website thereto) or posted on the
Company’s intranet (or other shared electronic medium controlled by the Company to which the Participant has access). By accepting
any Award the Participant consents to receive documents by electronic delivery and to participate in the Plan through any on-line electronic
system established and maintained by the Plan Administrator or another third party selected by the Plan Administrator. The form of delivery
of any Common Stock (e.g., a stock certificate or electronic entry evidencing such shares) shall be determined by the Company.
(i) Clawback/Recovery.
All Awards granted under the Plan will be subject to recoupment in accordance with any clawback policy that the Company is required to
adopt pursuant to the listing standards of any national securities exchange or association on which the Company’s securities are
listed or as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer Protection Act or other Applicable Law and any clawback
policy that the Company otherwise adopts, to the extent applicable and permissible under Applicable Law. In addition, the Board may impose
such other clawback, recovery or recoupment provisions in an Award Agreement as the Board determines necessary or appropriate, including
but not limited to a reacquisition right in respect of previously acquired shares of Common Stock or other cash or property upon the occurrence
of Cause. No recovery of compensation under such a clawback policy will be an event giving rise to a Participant’s right to voluntarily
terminate employment upon a “resignation for good reason,” or for a “constructive termination” or any similar
term under any plan of or agreement with the Company.
(j) Securities
Law Compliance. A Participant will not be issued any shares in respect of an Award unless either (i) the shares are registered under
the Securities Act; or (ii) the Company has determined that such issuance would be exempt from the registration requirements of the Securities
Act. Each Award also must comply with other Applicable Law governing the Award, and a Participant will not receive such shares if the
Company determines that such receipt would not be in material compliance with Applicable Law.
(k) Transfer
or Assignment of Awards; Issued Shares. Except as expressly provided in the Plan or the form of Award Agreement, Awards granted under
the Plan may not be transferred or assigned by the Participant. After the vested shares subject to an Award have been issued, or in the
case of Restricted Stock and similar awards, after the issued shares have vested, the holder of such shares is free to assign, hypothecate,
donate, encumber or otherwise dispose of any interest in such shares provided that any such actions are in compliance with the provisions
herein, the terms of the Trading Policy and Applicable Law.
(l) Effect
on Other Employee Benefit Plans. The value of any Award granted under the Plan, as determined upon grant, vesting or settlement, shall
not be included as compensation, earnings, salaries, or other similar terms used when calculating any Participant’s benefits under
any employee benefit plan sponsored by the Company or any Affiliate, except as such plan otherwise expressly provides. The Company expressly
reserves its rights to amend, modify, or terminate any of the Company’s or any Affiliate’s employee benefit plans.
(m) Deferrals.
To the extent permitted by Applicable Law, the Board, in its sole discretion, may determine that the delivery of Common Stock or the payment
of cash, upon the exercise, vesting or settlement of all or a portion of any Award may be deferred and may also establish programs and
procedures for deferral elections to be made by Participants. Deferrals will be made in accordance with the requirements of Section 409A.
(n) Section
409A. Unless otherwise expressly provided for in an Award Agreement, the Plan and Award Agreements will be interpreted to the greatest
extent possible in a manner that makes the Plan and the Awards granted hereunder exempt from Section 409A, and, to the extent not so exempt,
in compliance with the requirements of Section 409A. If the Board determines that any Award granted hereunder is not exempt from and is
therefore subject to Section 409A, the Award Agreement evidencing such Award will incorporate the terms and conditions necessary to avoid
the consequences specified in Section 409A(a)(1) of the Code, and to the extent an Award Agreement is silent on terms necessary for compliance,
such terms are hereby incorporated by reference into the Award Agreement. Notwithstanding anything to the contrary in this Plan (and unless
the Award Agreement specifically provides otherwise), if the shares of Common Stock are publicly traded, and if a Participant holding
an Award that constitutes “deferred compensation” under Section 409A is a “specified employee” for purposes of
Section 409A, no distribution or payment of any amount that is due because of a “separation from service” (as defined in Section
409A without regard to alternative definitions thereunder) will be issued or paid before the date that is six months and one day following
the date of such Participant’s “separation from service” or, if earlier, the date of the Participant’s death,
unless such distribution or payment can be made in a manner that complies with Section 409A, and any amounts so deferred will be paid
in a lump sum on the day after such six month period elapses, with the balance paid thereafter on the original schedule.
(o) Choice
of Law. This Plan and any controversy arising out of or relating to this Plan shall be governed by, and construed in accordance with,
the internal laws of the State of Delaware, without regard to conflict of law principles that would result in any application of any law
other than the law of the State of Delaware.
10. Covenants
of the Company.
The Company will seek to obtain from each regulatory
commission or agency, as may be deemed to be necessary, having jurisdiction over the Plan such authority as may be required to grant Awards
and to issue and sell shares of Common Stock upon exercise or vesting of the Awards; provided, however, that this undertaking will not
require the Company to register under the Securities Act the Plan, any Award or any Common Stock issued or issuable pursuant to any such
Award. If, after reasonable efforts and at a reasonable cost, the Company is unable to obtain from any such regulatory commission or agency
the authority that counsel for the Company deems necessary or advisable for the lawful issuance and sale of Common Stock under the Plan,
the Company will be relieved from any liability for failure to issue and sell Common Stock upon exercise or vesting of such Awards unless
and until such authority is obtained. A Participant is not eligible for the grant of an Award or the subsequent issuance of Common Stock
pursuant to the Award if such grant or issuance would be in violation of any Applicable Law.
11. Additional
Rules for Awards Subject to Section 409A.
(a) Application.
Unless the provisions of this Section of the Plan are expressly superseded by the provisions in the form of Award Agreement, the provisions
of this Section shall apply and shall supersede anything to the contrary set forth in the Award Agreement for a Non-Exempt Award.
(b) Non-Exempt
Awards Subject to Non-Exempt Severance Arrangements. To the extent a Non-Exempt Award is subject to Section 409A due to application
of a Non-Exempt Severance Arrangement, the following provisions of this subsection (b) apply.
(i) If
the Non-Exempt Award vests in the ordinary course during the Participant’s Continuous Service in accordance with the vesting schedule
set forth in the Award Agreement, and does not accelerate vesting under the terms of a Non-Exempt Severance Arrangement, in no event will
the shares be issued in respect of such Non-Exempt Award any later than the later of: (i) December 31st of the calendar year that includes
the applicable vesting date, or (ii) the 60th day that follows the applicable vesting date.
(ii) If
vesting of the Non-Exempt Award accelerates under the terms of a Non-Exempt Severance Arrangement in connection with the Participant’s
Separation from Service, and such vesting acceleration provisions were in effect as of the date of grant of the Non-Exempt Award and,
therefore, are part of the terms of such Non-Exempt Award as of the date of grant, then the shares will be earlier issued in settlement
of such Non-Exempt Award upon the Participant’s Separation from Service in accordance with the terms of the Non-Exempt Severance
Arrangement, but in no event later than the 60th day that follows the date of the Participant’s Separation from Service. However,
if at the time the shares would otherwise be issued the Participant is subject to the distribution limitations contained in Section 409A
applicable to “specified employees,” as defined in Section 409A(a)(2)(B)(i) of the Code, such shares shall not be issued before
the date that is six months following the date of such Participant’s Separation from Service, or, if earlier, the date of the Participant’s
death that occurs within such six month period.
(iii) If
vesting of a Non-Exempt Award accelerates under the terms of a Non-Exempt Severance Arrangement in connection with a Participant’s
Separation from Service, and such vesting acceleration provisions were not in effect as of the date of grant of the Non-Exempt Award and,
therefore, are not a part of the terms of such Non-Exempt Award on the date of grant, then such acceleration of vesting of the Non-Exempt
Award shall not accelerate the issuance date of the shares, but the shares shall instead be issued on the same schedule as set forth in
the Grant Notice as if they had vested in the ordinary course during the Participant’s Continuous Service, notwithstanding the vesting
acceleration of the Non-Exempt Award. Such issuance schedule is intended to satisfy the requirements of payment on a specified date or
pursuant to a fixed schedule, as provided under Treasury Regulations Section 1.409A-3(a)(4).
(c) Treatment
of Non-Exempt Awards Upon a Corporate Transaction for Employees and Consultants. The provisions of this subsection (c) shall apply
and shall supersede anything to the contrary set forth in the Plan with respect to the permitted treatment of any Non-Exempt Award in
connection with a Corporate Transaction if the Participant was either an Employee or Consultant upon the applicable date of grant of the
Non-Exempt Award.
(i) Vested
Non-Exempt Awards. The following provisions shall apply to any Vested Non-Exempt Award in connection with a Corporate Transaction:
(1) If the
Corporate Transaction is also a Section 409A Change in Control then the Acquiring Entity may not assume, continue or substitute the Vested
Non-Exempt Award. Upon the Section 409A Change in Control the settlement of the Vested Non-Exempt Award will automatically be accelerated
and the shares will be immediately issued in respect of the Vested Non-Exempt Award. Alternatively, the Company may instead provide that
the Participant will receive a cash settlement equal to the Fair Market Value of the shares that would otherwise be issued to the Participant
upon the Section 409A Change in Control.
(2) If the
Corporate Transaction is not also a Section 409A Change in Control, then the Acquiring Entity must either assume, continue or substitute
each Vested Non-Exempt Award. The shares to be issued in respect of the Vested Non-Exempt Award shall be issued to the Participant by
the Acquiring Entity on the same schedule that the shares would have been issued to the Participant if the Corporate Transaction had not
occurred. In the Acquiring Entity’s discretion, in lieu of an issuance of shares, the Acquiring Entity may instead substitute a
cash payment on each applicable issuance date, equal to the Fair Market Value of the shares that would otherwise be issued to the Participant
on such issuance dates, with the determination of the Fair Market Value of the shares made on the date of the Corporate Transaction.
(ii) Unvested
Non-Exempt Awards. The following provisions shall apply to any Unvested Non-Exempt Award unless otherwise determined by the Board pursuant
to subsection (e) of this Section.
(1) In the
event of a Corporate Transaction, the Acquiring Entity shall assume, continue or substitute any Unvested Non-Exempt Award. Unless otherwise
determined by the Board, any Unvested Non-Exempt Award will remain subject to the same vesting and forfeiture restrictions that were applicable
to the Award prior to the Corporate Transaction. The shares to be issued in respect of any Unvested Non-Exempt Award shall be issued to
the Participant by the Acquiring Entity on the same schedule that the shares would have been issued to the Participant if the Corporate
Transaction had not occurred. In the Acquiring Entity’s discretion, in lieu of an issuance of shares, the Acquiring Entity may instead
substitute a cash payment on each applicable issuance date, equal to the Fair Market Value of the shares that would otherwise be issued
to the Participant on such issuance dates, with the determination of Fair Market Value of the shares made on the date of the Corporate
Transaction.
(2) If the
Acquiring Entity will not assume, substitute or continue any Unvested Non-Exempt Award in connection with a Corporate Transaction, then
such Award shall automatically terminate and be forfeited upon the Corporate Transaction with no consideration payable to any Participant
in respect of such forfeited Unvested Non-Exempt Award. Notwithstanding the foregoing, to the extent permitted and in compliance with
the requirements of Section 409A, the Board may in its discretion determine to elect to accelerate the vesting and settlement of the Unvested
Non-Exempt Award upon the Corporate Transaction, or instead substitute a cash payment equal to the Fair Market Value of such shares that
would otherwise be issued to the Participant, as further provided in subsection (e)(ii) below. In the absence of such discretionary election
by the Board, any Unvested Non-Exempt Award shall be forfeited without payment of any consideration to the affected Participants if the
Acquiring Entity will not assume, substitute or continue the Unvested Non-Exempt Awards in connection with the Corporate Transaction.
(3) The
foregoing treatment shall apply with respect to all Unvested Non-Exempt Awards upon any Corporate Transaction, and regardless of whether
or not such Corporate Transaction is also a Section 409A Change in Control.
(d) Treatment
of Non-Exempt Awards Upon a Corporate Transaction for Non-Employee Directors. The following provisions of this subsection (d) shall
apply and shall supersede anything to the contrary that may be set forth in the Plan with respect to the permitted treatment of a Non-Exempt
Director Award in connection with a Corporate Transaction.
(i) If
the Corporate Transaction is also a Section 409A Change in Control then the Acquiring Entity may not assume, continue or substitute the
Non-Exempt Director Award. Upon the Section 409A Change in Control the vesting and settlement of any Non-Exempt Director Award will automatically
be accelerated and the shares will be immediately issued to the Participant in respect of the Non-Exempt Director Award. Alternatively,
the Company may provide that the Participant will instead receive a cash settlement equal to the Fair Market Value of the shares that
would otherwise be issued to the Participant upon the Section 409A Change in Control pursuant to the preceding provision.
(ii) If
the Corporate Transaction is not also a Section 409A Change in Control, then the Acquiring Entity must either assume, continue or substitute
the Non-Exempt Director Award. Unless otherwise determined by the Board, the Non-Exempt Director Award will remain subject to the same
vesting and forfeiture restrictions that were applicable to the Award prior to the Corporate Transaction. The shares to be issued in respect
of the Non-Exempt Director Award shall be issued to the Participant by the Acquiring Entity on the same schedule that the shares would
have been issued to the Participant if the Corporate Transaction had not occurred. In the Acquiring Entity’s discretion, in lieu
of an issuance of shares, the Acquiring Entity may instead substitute a cash payment on each applicable issuance date, equal to the Fair
Market Value of the shares that would otherwise be issued to the Participant on such issuance dates, with the determination of Fair Market
Value made on the date of the Corporate Transaction.
(e) If the
RSU Award is a Non-Exempt Award, then the provisions in this Section 11(e) shall apply and supersede anything to the contrary that may
be set forth in the Plan or the Award Agreement with respect to the permitted treatment of such Non-Exempt Award:
(i) Any
exercise by the Board of discretion to accelerate the vesting of a Non-Exempt Award shall not result in any acceleration of the scheduled
issuance dates for the shares in respect of the Non-Exempt Award unless earlier issuance of the shares upon the applicable vesting dates
would be in compliance with the requirements of Section 409A.
(ii) The
Company explicitly reserves the right to earlier settle any Non-Exempt Award to the extent permitted and in compliance with the requirements
of Section 409A, including pursuant to any of the exemptions available in Treasury Regulations Section 1.409A-3(j)(4)(ix).
(iii) To
the extent the terms of any Non-Exempt Award provide that it will be settled upon a Corporate Transaction, to the extent it is required
for compliance with the requirements of Section 409A, the Corporate Transaction event triggering settlement must also constitute a Section
409A Change in Control. To the extent the terms of a Non-Exempt Award provides that it will be settled upon a termination of employment
or termination of Continuous Service, to the extent it is required for compliance with the requirements of Section 409A, the termination
event triggering settlement must also constitute a Separation From Service. However, if at the time the shares would otherwise be issued
to a Participant in connection with a “separation from service” such Participant is subject to the distribution limitations
contained in Section 409A applicable to “specified employees,” as defined in Section 409A(a)(2)(B)(i) of the Code, such shares
shall not be issued before the date that is six months following the date of the Participant’s Separation From Service, or, if earlier,
the date of the Participant’s death that occurs within such six month period.
(iv) The
provisions in this subsection (e) for delivery of the shares in respect of the settlement of an RSU Award that is a Non-Exempt Award are
intended to comply with the requirements of Section 409A so that the delivery of the shares to the Participant in respect of such Non-Exempt
Award will not trigger the additional tax imposed under Section 409A, and any ambiguities herein will be so interpreted.
12. Severability.
If all or any part of the Plan or any Award Agreement
is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any
portion of the Plan or such Award Agreement not declared to be unlawful or invalid. Any Section of the Plan or any Award Agreement (or
part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the
terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.
13. Termination
of the Plan.
The Board may suspend or terminate the Plan at
any time. No Incentive Stock Options may be granted after the tenth anniversary of the earlier of: (i) the Adoption Date, or (ii) the
date the Plan is approved by the Company’s stockholders. No Awards may be granted under the Plan while the Plan is suspended or
after it is terminated.
14. Definitions.
As used in the Plan, the following definitions
apply to the capitalized terms indicated below:
(a) “Acquiring
Entity” means the surviving or acquiring corporation (or its parent company) in connection with a Corporate Transaction.
(b) “Adoption
Date” means the date the Plan is first approved by the Board or Compensation Committee.
(c) “Affiliate”
means, at the time of determination, any “parent” or “subsidiary” of the Company as such terms are defined in
Rule 405 promulgated under the Securities Act. The Board may determine the time or times at which “parent” or “subsidiary”
status is determined within the foregoing definition.
(d) “Applicable
Law” means any applicable securities, federal, state, foreign, material local or municipal or other law, statute, constitution,
principle of common law, resolution, ordinance, code, edict, decree, rule, listing rule, regulation, judicial decision, ruling or requirement
issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Body (including
under the authority of any applicable self-regulating organization such as the Nasdaq Stock Market, New York Stock Exchange, or the Financial
Industry Regulatory Authority).
(e) “Award”
means any right to receive Common Stock, cash or other property granted under the Plan (including an Incentive Stock Option, a Nonstatutory
Stock Option, a Restricted Stock Award, an RSU Award, a SAR, a Performance Award or any Other Award).
(f) “Award
Agreement” means a written or electronic agreement between the Company and a Participant evidencing the terms and conditions
of an Award. The Award Agreement generally consists of the Grant Notice and the agreement containing the written summary of the general
terms and conditions applicable to the Award and which is provided, including through electronic means, to a Participant along with the
Grant Notice.
(g) “Board”
means the Board of Directors of the Company (or its designee). Any decision or determination made by the Board shall be a decision or
determination that is made in the sole discretion of the Board (or its designee), and such decision or determination shall be final and
binding on all Participants.
(h) “Capitalization
Adjustment” means any change that is made in, or other events that occur with respect to, the Common Stock subject to the
Plan or subject to any Award after the date the Plan is adopted by the Board without the receipt of consideration by the Company through
merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, large
nonrecurring cash dividend, stock split, reverse stock split, liquidating dividend, combination of shares, exchange of shares, change
in corporate structure or any similar equity restructuring transaction, as that term is used in Statement of Financial Accounting Standards
Board Accounting Standards Codification Topic 718 (or any successor thereto). Notwithstanding the foregoing, the conversion of any convertible
securities of the Company will not be treated as a Capitalization Adjustment.
(i) “Cause”
has the meaning ascribed to such term in any written agreement between a Participant and the Company defining such term and, in the absence
of such agreement, such term means, with respect to a Participant, the occurrence of any of the following events: (i) the Participant’s
dishonest statements or acts with respect to the Company or any Affiliate of the Company, or any current or prospective customers, suppliers,
vendors or other third parties with which such entity does business that adversely affects the Company or its Affiliates; (ii) the Participant’s
commission of (A) a felony or (B) any misdemeanor involving moral turpitude, deceit, dishonesty or fraud; (iii) the Participant’s
failure to perform the Participant’s assigned duties and responsibilities to the reasonable satisfaction of the Company which failure
continues, in the reasonable judgment of the Company, after written notice given to the Participant by the Company; (iv) the Participant’s
gross negligence, willful misconduct or insubordination with respect to the Company or any Affiliate of the Company; or (v) the Participant’s
material violation of any provision of any agreement(s) between the Participant and the Company or any Affiliate of the Company relating
to noncompetition, nonsolicitation, nondisclosure and/or assignment of inventions. The determination that a termination of the Participant’s
Continuous Service is either for Cause or without Cause will be made by the Board with respect to Participants who are executive officers
of the Company and by the Company’s Chief Executive Officer with respect to Participants who are not executive officers of the Company.
Any determination by the Company that the Continuous Service of a Participant was terminated with or without Cause for the purposes of
outstanding Awards held by such Participant will have no effect upon any determination of the rights or obligations of the Company or
such Participant for any other purpose.
(j) “Code”
means the Internal Revenue Code of 1986, as amended, including any applicable regulations and guidance thereunder.
(k) “Committee”
means the Compensation Committee and any other committee of one or more Directors to whom authority has been delegated by the Board or
Compensation Committee in accordance with the Plan.
(l) “Common
Stock” means the common stock of the Company.
(m) “Company”
means Envoy Medical, Inc., a Delaware corporation and any successor entity thereto.
(n) “Compensation
Committee” means the Compensation Committee of the Board.
(o) “Consultant”
means any person, including an advisor, who is (i) engaged by the Company or an Affiliate to render consulting or advisory services and
is compensated for such services, or (ii) serving as a member of the board of directors of an Affiliate and is compensated for such services.
However, service solely as a Director, or payment of a fee for such service, will not cause a Director to be considered a “Consultant”
for purposes of the Plan. Notwithstanding the foregoing, a person is treated as a Consultant under this Plan only if a Form S-8 Registration
Statement under the Securities Act is available to register either the offer or the sale of the Company’s securities to such person.
(p) “Continuous
Service” means that the Participant’s service with the Company or an Affiliate, whether as an Employee, Director or
Consultant, is not interrupted or terminated. A change in the capacity in which the Participant renders service to the Company or an Affiliate
as an Employee, Director or Consultant or a change in the Entity for which the Participant renders such service, provided that there is
no interruption or termination of the Participant’s service with the Company or an Affiliate, will not terminate a Participant’s
Continuous Service; provided, however, that if the Entity for which a Participant is rendering services ceases to qualify as an Affiliate,
as determined by the Board, such Participant’s Continuous Service will be considered to have terminated on the date such Entity
ceases to qualify as an Affiliate. For example, a change in status from an Employee of the Company to a Consultant of an Affiliate or
to a Director will not constitute an interruption of Continuous Service. To the extent permitted by law, the Board or the chief executive
officer of the Company, in that party’s sole discretion, may determine whether Continuous Service will be considered interrupted
in the case of (i) any leave of absence approved by the Board or chief executive officer, including sick leave, military leave or any
other personal leave, or (ii) transfers between the Company, an Affiliate, or their successors. Notwithstanding the foregoing, a leave
of absence will be treated as Continuous Service for purposes of vesting in an Award only to such extent as may be provided in the Company’s
leave of absence policy, in the written terms of any leave of absence agreement or policy applicable to the Participant, or as otherwise
required by law. In addition, to the extent required for exemption from or compliance with Section 409A, the determination of whether
there has been a termination of Continuous Service will be made, and such term will be construed, in a manner that is consistent with
the definition of “separation from service” as defined under Treasury Regulation Section 1.409A-1(h) (without regard to any
alternative definition thereunder).
(q) “Corporate
Transaction” means any of the following transactions, provided, however, that the Board shall determine under parts (iv)
and (v) whether multiple transactions are related, and its determination shall be final, binding and conclusive:
(i) a
merger or consolidation in which the Company is not the surviving entity;
(ii) the
sale, transfer or other disposition of all or substantially all of the assets of the Company;
(iii) the
complete liquidation or dissolution of the Company;
(iv) any
reverse merger or series of related transactions culminating in a reverse merger (including, but not limited to, a tender offer followed
by a reverse merger) in which the Company is the surviving entity but (A) the shares of Common Stock outstanding immediately prior to
such merger are converted or exchanged by virtue of the merger into other property, whether in the form of securities, cash or otherwise,
or (B) in which securities possessing more than fifty percent (50%) of the total combined voting power of the Company’s outstanding
securities are transferred to a person or persons different from those who held such securities immediately prior to such merger or the
initial transaction culminating in such merger, but excluding any such transaction or series of related transactions that the Board determines
shall not be a Corporate Transaction; or
(v) acquisition
in a single or series of related transactions by any person or related group of persons (other than the Company or by a Company-sponsored
employee benefit plan) of beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) of securities possessing more than
fifty percent (50%) of the total combined voting power of the Company’s outstanding securities but excluding any such transaction
or series of related transactions that the Board determines shall not be a Corporate Transaction.
Notwithstanding the foregoing or any other provision
of this Plan, (A) the term Corporate Transaction shall not include a sale of assets, merger or other transaction effected exclusively
for the purpose of changing the domicile of the Company, (B) the definition of Corporate Transaction (or any analogous term) in an individual
written agreement between the Company or any Affiliate and the Participant shall supersede the foregoing definition with respect to Awards
subject to such agreement; provided, however, that if no definition of Corporate Transaction or any analogous term is set forth in such
an individual written agreement, the foregoing definition shall apply, and (C) with respect to any nonqualified deferred compensation
that becomes payable on account of the Corporate Transaction, the transaction or event described in clause (i), (ii), (iii), or (iv) also
constitutes a Section 409A Change in Control if required in order for the payment not to violate Section 409A of the Code.
(r) “Director”
means a member of the Board.
(s) “determine”
or “determined” means as determined by the Board or the Committee (or its designee) in its sole discretion.
(t) “Disability”
means, with respect to a Participant, such Participant is unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months, as provided in Section 22(e)(3) of the Code, and will be determined by the Board on the
basis of such medical evidence as the Board deems warranted under the circumstances.
(u) “Effective
Date” means the Closing Date as defined in the Business Combination Agreement by and among Anzu Special Acquisition Corp
I, Envoy Merger Sub, Inc. and Envoy Medical Corporation, dated April 17, 2023.
(v) “Employee”
means any person employed by the Company or an Affiliate. However, service solely as a Director, or payment of a fee for such services,
will not cause a Director to be considered an “Employee” for purposes of the Plan.
(w) “Employer”
means the Company or the Affiliate of the Company that employs the Participant.
(x) “Entity”
means a corporation, partnership, limited liability company or other entity.
(y) “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(z) “Exchange
Act Person” means any natural person, Entity or “group” (within the meaning of Section 13(d) or 14(d) of the
Exchange Act), except that “Exchange Act Person” will not include (i) the Company or any Subsidiary of the Company, (ii) any
employee benefit plan of the Company or any Subsidiary of the Company or any trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any Subsidiary of the Company, (iii) an underwriter temporarily holding securities pursuant to a registered
public offering of such securities, (iv) an Entity Owned, directly or indirectly, by the stockholders of the Company in substantially
the same proportions as their Ownership of stock of the Company; or (v) any natural person, Entity or “group” (within the
meaning of Section 13(d) or 14(d) of the Exchange Act) that, as of the Effective Date, is the Owner, directly or indirectly, of securities
of the Company representing more than 50% of the combined voting power of the Company’s then outstanding securities.
(aa) “Fair Market Value”
means, as of any date, unless otherwise determined by the Board, the value of the Common Stock (as determined on a per share or aggregate
basis, as applicable) determined as follows:
(i) If
the Common Stock is listed on any established stock exchange or traded on any established market, the Fair Market Value will be the closing
sales price for such stock as quoted on such exchange or market (or the exchange or market with the greatest volume of trading in the
Common Stock) on the date of determination, as reported in a source the Board deems reliable.
(ii) If
there is no closing sales price for the Common Stock on the date of determination, then the Fair Market Value will be the closing selling
price on the last preceding date for which such quotation exists.
(iii) In
the absence of such markets for the Common Stock, or if otherwise determined by the Board, the Fair Market Value will be determined by
the Board in good faith and in a manner that complies with Sections 409A and 422 of the Code.
(bb) “Governmental Body”
means any: (i) nation, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (ii)
federal, state, local, municipal, foreign or other government; (iii) governmental or regulatory body, or quasi-governmental body of any
nature (including any governmental division, department, administrative agency or bureau, commission, authority, instrumentality, official,
ministry, fund, foundation, center, organization, unit, body or Entity and any court or other tribunal, and for the avoidance of doubt,
any Tax authority) or other body exercising similar powers or authority; or (iv) self-regulatory organization (including the Nasdaq Stock
Market, New York Stock Exchange, and the Financial Industry Regulatory Authority).
(cc) “Grant Notice”
means the notice provided to a Participant that he or she has been granted an Award under the Plan and which includes the name of the
Participant, the type of Award, the date of grant of the Award, number of shares of Common Stock subject to the Award or potential cash
payment right, (if any), the vesting schedule for the Award (if any) and other key terms applicable to the Award.
(dd) “Incentive Stock Option”
means an option granted pursuant to Section 4 of the Plan that is intended to be, and qualifies as, an “incentive stock option”
within the meaning of Section 422 of the Code.
(ee) “Materially Impair”
means any amendment to the terms of the Award that materially adversely affects the Participant’s rights under the Award. A Participant’s
rights under an Award will not be deemed to have been Materially Impaired by any such amendment if the Board, in its sole discretion,
determines that the amendment, taken as a whole, does not materially impair the Participant’s rights. For example, the following types
of amendments to the terms of an Award do not Materially Impair the Participant’s rights under the Award: (i) imposition of reasonable
restrictions on the minimum number of shares subject to an Option or SAR that may be exercised; (ii) to maintain the qualified status
of the Award as an Incentive Stock Option under Section 422 of the Code; (iii) to change the terms of an Incentive Stock Option in a manner
that disqualifies, impairs or otherwise affects the qualified status of the Award as an Incentive Stock Option under Section 422 of the
Code; (iv) to clarify the manner of exemption from, or to bring the Award into compliance with or qualify it for an exemption from, Section
409A; or (v) to comply with other Applicable Laws.
(ff) “Milestone” means
approval by the Food and Drug Administration of the Company’s Acclaim® Cochlear Implant device.
(gg) “Non-Employee Director”
means a Director who either (i) is not a current employee or officer of the Company or an Affiliate, does not receive compensation, either
directly or indirectly, from the Company or an Affiliate for services rendered as a consultant or in any capacity other than as a Director
(except for an amount as to which disclosure would not be required under Item 404(a) of Regulation S-K promulgated pursuant to the Securities
Act (“Regulation S-K”)), does not possess an interest in any other transaction for which disclosure would be required under
Item 404(a) of Regulation S-K, and is not engaged in a business relationship for which disclosure would be required pursuant to Item 404(b)
of Regulation S-K; or (ii) is otherwise considered a “non-employee director” for purposes of Rule 16b-3.
(hh) “Non-Exempt Award”
means any Award that is subject to, and not exempt from, Section 409A, including as the result of (i) a deferral of the issuance of the
shares subject to the Award which is elected by the Participant or imposed by the Company, or (ii) the terms of any Non-Exempt Severance
Agreement.
(ii) “Non-Exempt
Director Award” means a Non-Exempt Award granted to a Participant who was a Director but not an Employee on the applicable
grant date.
(jj) “Non-Exempt Severance Arrangement”
means a severance arrangement or other agreement between the Participant and the Company that provides for acceleration of vesting of
an Award and issuance of the shares in respect of such Award upon the Participant’s termination of employment or separation from
service (as such term is defined in Section 409A(a)(2)(A)(i) of the Code (and without regard to any alternative definition thereunder)
(“Separation from Service”) and such severance benefit does not satisfy the requirements for an exemption from application
of Section 409A provided under Treasury Regulations Section 1.409A-1(b)(4), 1.409A-1(b)(9) or otherwise.
(kk) “Nonstatutory Stock Option”
means any option granted pursuant to Section 4 of the Plan that does not qualify as an Incentive Stock Option.
(ll) “Officer” means
a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act.
(mm) “Option” means
an Incentive Stock Option or a Nonstatutory Stock Option to purchase shares of Common Stock granted pursuant to the Plan.
(nn) “Option Agreement”
means a written or electronic agreement between the Company and the Optionholder evidencing the terms and conditions of the Option grant.
The Option Agreement includes the Grant Notice for the Option and the agreement containing the written summary of the general terms and
conditions applicable to the Option and which is provided, including through electronic means, to a Participant along with the Grant Notice.
Each Option Agreement will be subject to the terms and conditions of the Plan.
(oo) “Optionholder”
means a person to whom an Option is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Option.
(pp) “Other Award” means
an award valued in whole or in part by reference to, or otherwise based on, Common Stock, including the appreciation in value thereof
(e.g., options or stock rights with an exercise price or strike price less than 100% of the Fair Market Value at the time of grant) that
is not an Incentive Stock Option, Nonstatutory Stock Option, SAR, Restricted Stock Award, RSU Award or Performance Award.
(qq) “Other Award Agreement”
means a written or electronic agreement between the Company and a holder of an Other Award evidencing the terms and conditions of an Other
Award grant. Each Other Award Agreement will be subject to the terms and conditions of the Plan.
(rr) “Own,” “Owned,”
“Owner,” “Ownership” means that a person or Entity will be deemed to “Own,”
to have “Owned,” to be the “Owner” of, or to have acquired “Ownership” of securities if such person
or Entity, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares voting power,
which includes the power to vote or to direct the voting, with respect to such securities.
(ss) “Participant” means
an Employee, Director or Consultant to whom an Award is granted pursuant to the Plan or, if applicable, such other person who holds an
outstanding Award.
(tt) “Performance Award”
means an Award that may vest or may be exercised or a cash award that may vest or become earned and paid contingent upon the attainment
during a Performance Period of certain Performance Goals and which is granted under the terms and conditions of Section 5(b) pursuant
to such terms as are approved by the Board. In addition, to the extent permitted by Applicable Law and set forth in the applicable Award
Agreement, the Board may determine that cash or other property may be used in payment of Performance Awards. Performance Awards that are
settled in cash or other property are not required to be valued in whole or in part by reference to, or otherwise based on, the Common
Stock.
(uu) “Performance Criteria”
means one or more criteria that the Board will select for purposes of establishing the Performance Goals for a Performance Period. The
Performance Criteria that will be used to establish such Performance Goals may be based on any one of, or combination of, the following
as determined by the Board: earnings (including earnings per share and net earnings); earnings before interest, taxes and depreciation;
earnings before interest, taxes, depreciation and amortization; total stockholder return; return on equity or average stockholder’s
equity; return on assets, investment, or capital employed; stock price; margin (including gross margin); income (before or after taxes);
operating income; operating income after taxes; pre-tax profit; operating cash flow; sales or revenue targets; increases in revenue or
product revenue; expenses and cost reduction goals; improvement in or attainment of working capital levels; economic value added (or an
equivalent metric); market share; cash flow; cash flow per share; share price performance; debt reduction; customer satisfaction; stockholders’
equity; capital expenditures; debt levels; operating profit or net operating profit; workforce diversity; growth of net income or operating
income; billings; financing; regulatory milestones; stockholder liquidity; corporate governance and compliance; intellectual property;
personnel matters; progress of internal research; progress of partnered programs; partner satisfaction; budget management; partner or
collaborator achievements; internal controls, including those related to the Sarbanes-Oxley Act of 2002; investor relations, analysts
and communication; implementation or completion of projects or processes; employee retention; number of users, including unique users;
strategic partnerships or transactions (including in-licensing and out-licensing of intellectual property); establishing relationships
with respect to the marketing, distribution and sale of the Company’s products; supply chain achievements; co-development, co-marketing,
profit sharing, joint venture or other similar arrangements; individual performance goals; corporate development and planning goals; and
other measures of performance selected by the Board or Committee whether or not listed herein.
(vv) “Performance Goals”
means, for a Performance Period, one or more goals established by the Board for the Performance Period based upon the Performance Criteria.
Performance Goals may be based on a Company-wide basis, with respect to one or more business units, divisions, Affiliates, or business
segments, and in either absolute terms or relative to the performance of one or more comparable companies or the performance of one or
more relevant indices. Unless specified otherwise by the Board (i) in the Award Agreement at the time the Award is granted or (ii) in
such other document setting forth the Performance Goals at the time the Performance Goals are established, the Board will appropriately
make adjustments in the method of calculating the attainment of Performance Goals for a Performance Period as follows: (1) to exclude
restructuring and/or other nonrecurring charges; (2) to exclude exchange rate effects; (3) to exclude the effects of changes to generally
accepted accounting principles; (4) to exclude the effects of any statutory adjustments to corporate tax rates; (5) to exclude the effects
of items that are “unusual” in nature or occur “infrequently” as determined under generally accepted accounting
principles; (6) to exclude the dilutive effects of acquisitions or joint ventures; (7) to assume that any business divested by the Company
achieved performance objectives at targeted levels during the balance of a Performance Period following such divestiture; (8) to exclude
the effect of any change in the outstanding shares of common stock of the Company by reason of any stock dividend or split, stock repurchase,
reorganization, recapitalization, merger, consolidation, spin-off, combination or exchange of shares or other similar corporate change,
or any distributions to common stockholders other than regular cash dividends; (9) to exclude the effects of stock based compensation
and the award of bonuses under the Company’s bonus plans; (10) to exclude costs incurred in connection with potential acquisitions
or divestitures that are required to be expensed under generally accepted accounting principles; and (11) to exclude the goodwill and
intangible asset impairment charges that are required to be recorded under generally accepted accounting principles. In addition, the
Board may establish or provide for other adjustment items in the Award Agreement at the time the Award is granted or in such other document
setting forth the Performance Goals at the time the Performance Goals are established. In addition, the Board retains the discretion to
reduce or eliminate the compensation or economic benefit due upon attainment of Performance Goals and to define the manner of calculating
the Performance Criteria it selects to use for such Performance Period. Partial achievement of the specified criteria may result in the
payment or vesting corresponding to the degree of achievement as specified in the Award Agreement or the written terms of a Performance
Cash Award.
(ww) “Performance Period”
means the period of time selected by the Board over which the attainment of one or more Performance Goals will be measured for the purpose
of determining a Participant’s right to vesting or exercise of an Award. Performance Periods may be of varying and overlapping duration,
at the sole discretion of the Board.
(xx) “Plan”
means this Envoy Medical 2023 Equity Incentive Plan, as amended from time to time.
(yy) “Plan Administrator”
means the person, persons, and/or third-party administrator designated by the Company to administer the day to day operations of the Plan
and the Company’s other equity incentive programs.
(zz) “Post-Termination Exercise Period”
means the period following termination of a Participant’s Continuous Service within which an Option or SAR is exercisable, as specified
in Section 4(h).
(aaa) “Restricted Stock Award”
or “RSA” means an Award of shares of Common Stock which is granted pursuant to the terms and conditions of Section
5(a).
(bbb) “Restricted Stock Award Agreement”
means a written or electronic agreement between the Company and a holder of a Restricted Stock Award evidencing the terms and conditions
of a Restricted Stock Award grant. The Restricted Stock Award Agreement includes the Grant Notice for the Restricted Stock Award and the
agreement containing the written summary of the general terms and conditions applicable to the Restricted Stock Award and which is provided,
including by electronic means, to a Participant along with the Grant Notice. Each Restricted Stock Award Agreement will be subject to
the terms and conditions of the Plan.
(ccc) “RSU Award” or
“RSU” means an Award of restricted stock units representing the right to receive an issuance of shares of Common
Stock which is granted pursuant to the terms and conditions of Section 5(a).
(ddd) “RSU Award Agreement”
means a written or electronic agreement between the Company and a holder of an RSU Award evidencing the terms and conditions of an RSU
Award grant. The RSU Award Agreement includes the Grant Notice for the RSU Award and the agreement containing the written summary of the
general terms and conditions applicable to the RSU Award and which is provided, including by electronic means, to a Participant along
with the Grant Notice. Each RSU Award Agreement will be subject to the terms and conditions of the Plan.
(eee) “Rule 16b-3” means
Rule 16b-3 promulgated under the Exchange Act or any successor to Rule 16b-3, as in effect from time to time.
(fff) “Rule 405” means
Rule 405 promulgated under the Securities Act.
(ggg) “Section 409A”
means Section 409A of the Code and the regulations and other guidance thereunder.
(hhh) “Section 409A Change in Control”
means a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the Company’s
assets, as provided in Section 409A(a)(2)(A)(v) of the Code and Treasury Regulations Section 1.409A-3(i)(5) (without regard to any alternative
definition thereunder).
(iii) “Securities
Act” means the Securities Act of 1933, as amended.
(jjj) “Share Reserve”
means the number of shares available for issuance under the Plan as set forth in Section 2(a).
(kkk) “Stock Appreciation Right”
or “SAR” means a right to receive the appreciation on Common Stock that is granted pursuant to the terms and
conditions of Section 4.
(lll) “SAR Agreement”
means a written or electronic agreement between the Company and a holder of a SAR evidencing the terms and conditions of a SAR grant.
The SAR Agreement includes the Grant Notice for the SAR and the agreement containing the written summary of the general terms and conditions
applicable to the SAR and which is provided, including by electronic means, to a Participant along with the Grant Notice. Each SAR Agreement
will be subject to the terms and conditions of the Plan.
(mmm) “Subsidiary” means,
with respect to the Company, (i) any corporation of which more than 50% of the outstanding capital stock having ordinary voting power
to elect a majority of the board of directors of such corporation (irrespective of whether, at the time, stock of any other class or classes
of such corporation will have or might have voting power by reason of the happening of any contingency) is at the time, directly or indirectly,
Owned by the Company, and (ii) any partnership, limited liability company or other entity in which the Company has a direct or indirect
interest (whether in the form of voting or participation in profits or capital contribution) of more than 50%.
(nnn) “Ten Percent Stockholder”
means a person who Owns (or is deemed to Own pursuant to Section 424(d) of the Code) stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or any Affiliate.
(ooo) “Trading
Policy” means the Company’s policy permitting certain individuals to sell Company shares only during certain “window”
periods and/or otherwise restricts the ability of certain individuals to transfer or encumber Company shares, as in effect from time to
time.
(ppp) “Unvested Non-Exempt Award”
means the portion of any Non-Exempt Award that had not vested in accordance with its terms upon or prior to the date of any Corporate
Transaction.
(qqq) “Vested Non-Exempt Award”
means the portion of any Non-Exempt Award that had vested in accordance with its terms upon or prior to the date of a Corporate Transaction.
28
Exhibit 10.23
Envoy Medical, Inc.
2023 EMPLOYEE STOCK PURCHASE PLAN
Adopted by the Board of Directors:
April 17, 2023
Approved by the Stockholders:
September 27, 2023
The following constitute the
provisions of the 2023 Employee Stock Purchase Plan of Envoy Medical, Inc.
1. Purpose.
The purpose of the Plan is to provide Employees of the Company and its Designated Parents or Subsidiaries with an opportunity to purchase
Common Stock of the Company through accumulated payroll deductions. It is the intention of the Company that the Plan qualifies as an “employee
stock purchase plan” under Section 423 of the Code and the applicable regulations thereunder. The provisions of the Plan, accordingly,
shall be construed so as to extend and limit participation in a manner consistent with the requirements of that section of the Code.
2. Definitions.
As used herein, the following definitions shall apply:
(a) “Administrator”
means either the Board or a committee of the Board that is responsible for the administration of the Plan as is designated from time to
time by resolution of the Board.
(b) “Applicable
Laws” means the legal requirements relating to the administration of employee stock purchase plans, if any, under applicable
provisions of federal securities laws, state corporate and securities laws, the Code and the applicable regulations thereunder, the rules
of any applicable stock exchange or national market system, and the rules of any foreign jurisdiction applicable to participation in the
Plan by residents therein.
(c) “Board”
means the Board of Directors of the Company.
(d) “Code”
means the Internal Revenue Code of 1986, as amended.
(e) “Common
Stock” means the common stock of the Company.
(f) “Company”
means Envoy Medical, Inc., a Delaware corporation.
(g) “Compensation”
means, unless otherwise determined by the Administrator, an Employee’s base salary from the Company or one or more Designated Parents
or Subsidiaries, including such amounts of base salary as are deferred by the Employee: (i) under a qualified cash or deferred arrangement
described in Section 401(k) of the Code; or (ii) to a plan qualified under Section 125 of the Code. Unless otherwise determined
by the Administrator, “Compensation” does not include overtime, bonuses, annual awards, other incentive payments, reimbursements
or other expense allowances, loan forgiveness, fringe benefits (cash or non-cash), moving expenses, deferred compensation, contributions
(other than contributions described in the first sentence) made on the Employee’s behalf by the Company or one or more Designated
Parents or Subsidiaries under any employee benefit or welfare plan now or hereafter established, and any other payments not specifically
referenced in the first sentence.
(h) “Corporate
Transaction” means any of the following transactions, provided, however, that the Administrator shall determine under parts
(iv) and (v) whether multiple transactions are related, and its determination shall be final, binding and conclusive:
| (i) | a merger or consolidation in which the Company is not the surviving entity; |
| (ii) | the sale, transfer or other disposition of all or substantially all of the assets of the Company; |
| (iii) | the complete liquidation or dissolution of the Company; |
| (iv) | any reverse merger or series of related transactions culminating in a reverse merger (including, but not
limited to, a tender offer followed by a reverse merger) in which the Company is the surviving entity but (A) the shares of Common Stock
outstanding immediately prior to such merger are converted or exchanged by virtue of the merger into other property, whether in the form
of securities, cash or otherwise, or (B) in which securities possessing more than fifty percent (50%) of the total combined voting power
of the Company’s outstanding securities are transferred to a person or persons different from those who held such securities immediately
prior to such merger or the initial transaction culminating in such merger, but excluding any such transaction or series of related
transactions that the Administrator determines shall not be a Corporate Transaction; or |
| (v) | acquisition in a single or series of related transactions by any person or related group of persons (other
than the Company or by a Company-sponsored employee benefit plan) of beneficial ownership (within the meaning of Rule 13d-3 of the Exchange
Act) of securities possessing more than fifty percent (50%) of the total combined voting power of the Company’s outstanding securities
but excluding any such transaction or series of related transactions that the Administrator determines shall not be a Corporate Transaction. |
Notwithstanding the foregoing
or any other provision of this Plan, the term Corporate Transaction shall not include a sale of assets, merger or other transaction effected
exclusively for the purpose of changing the domicile of the Company. Any Corporate Transaction shall also comply with the provisions of
1.424-1(a)(3) of the Treasury Regulations.
(i) “Designated
Parents or Subsidiaries” means the Parents or Subsidiaries which have been designated by the Administrator from time to time
as eligible to participate in the Plan.
(j) “Effective
Date” means the Closing Date as defined in the Business Combination Agreement by and among Anzu Special Acquisition Corp I,
Envoy Merger Sub, Inc. and Envoy Medical Corporation, dated April 17, 2023. However, should any Parent or Subsidiary become a Designated
Parent or Subsidiary after such date, then the Administrator, in its discretion, shall designate a separate Effective Date with respect
to the employee-participants of such Designated Parent or Subsidiary.
(k) “Employee”
means any individual, including an officer or director, who is an employee of the Company or a Designated Parent or Subsidiary for purposes
of Section 423 of the Code. For purposes of the Plan, the employment relationship shall be treated as continuing intact while the individual
is on sick leave or other leave of absence approved by the individual’s employer. Where the period of leave exceeds three (3) months
and the individual’s right to reemployment is not guaranteed either by statute or by contract, the employment relationship will
be deemed to have terminated on the day three (3) months and one (1) day following the start of such leave, for purposes of determining
eligibility to participate in the Plan.
(l) “Exchange
Act” means the Securities Exchange Act of 1934, as amended.
(m) “Exercise
Date” means the last day of each Purchase Period.
(n) “Fair
Market Value” means, as of any date, unless otherwise determined by the Administrator, the value of the Common Stock (as determined
on a per share or aggregate basis, as applicable) determined as follows:
| (i) | If the Common Stock is listed on any established stock exchange or traded on any established market, the
Fair Market Value will be the closing sales price for such stock as quoted on such exchange or market (or the exchange or market with
the greatest volume of trading in the Common Stock) on the date of determination, as reported in a source the Board deems reliable. |
| (ii) | If there is no closing sales price for the Common Stock on the date of determination, then the Fair Market
Value will be the closing selling price on the last preceding date for which such quotation exists. |
| (iii) | In the absence of such markets for the Common Stock, or if otherwise determined by the Board, the Fair
Market Value will be determined by the Board in good faith and in a manner that complies with Sections 409A and 422 of the Code. |
(o) “New
Exercise Date” has the meaning set forth in Section 17(b).
(p) “Offer
Period” means an Offer Period established pursuant to Section 4 hereof.
(q) “Offering”
means an offer under this Plan of an Option that may be exercised during an Offer Period. For purposes of the Plan, all Employees eligible
to participate pursuant to Section 3 will be deemed to participate in the same Offering unless the Administrator otherwise determines
that Employees of the Company or one or more Designated Parents or Subsidiaries will be deemed to participate in separate Offerings, in
which case the Offerings will be considered separate even if the dates of each such Offering are identical and the provisions of the Plan
will separately apply to each Offering. To the extent permitted by Section 1.423-2(a)(1) of the Treasury regulations issued under Section
423 of the Code, the terms of each Offering need not be identical provided that the terms of the Plan and the Offering together satisfy
Sections 1.423-2(a)(2) and (a)(3) of such Treasury regulations.
(r) “Offering
Date” means the first day of each Offer Period.
(s) “Option”
means, with respect to each Offer Period, a right to purchase shares of Common Stock on the Exercise Date for such Offer Period in accordance
with the terms and conditions of the Plan.
(t) “Parent”
means a “parent corporation” of the Company, whether now or hereafter existing, as defined in Section 424(e) of the Code.
(u) “Participant”
means an Employee of the Company or Designated Parent or Subsidiary who has enrolled in the Plan as set forth in Section 5(a).
(v) “Plan”
means this Employee Stock Purchase Plan, as may be amended from time to time.
(w) “Purchase
Period” means, unless otherwise determined by the Administrator, a period of approximately six (6) months, commencing on June
1 and December 1 of each year and terminating on the next following November 30 or May 31, respectively.
(x) “Purchase
Price” means an amount equal to eighty-five percent (85%) of the Fair Market Value of a share of Common Stock (i) on the Exercise
Date or, if applicable, (ii) on the Offering Date or on the Exercise Date, whichever is lower. Unless determined otherwise by the Administrator,
the Purchase Price will be eighty-five percent (85%) of the Fair Market Value of a share of Common Stock on the Offering Date or on the
Exercise Date, whichever is lower.
(y) “Reserves”
means, as of any date, the sum of (i) the number of shares of Common Stock covered by each then outstanding Option under the Plan which
has not yet been exercised and (ii) the number of shares of Common Stock which have been authorized for issuance under the Plan but not
then subject to an outstanding Option.
(z) “Subsidiary”
means a “subsidiary corporation” of the Company, whether now or hereafter existing, as defined in Section 424(f) of the
Code.
3. Eligibility.
(a) General.
Subject to the further limitations in Sections 3(b) and 3(c), any individual who is an Employee on a given Offering Date shall be eligible
to participate in the Plan for the Offer Period commencing with such Offering Date. No individual who is not an Employee shall be eligible
to participate in the Plan.
(b) Limitations
on Grant and Accrual. Notwithstanding any provisions of the Plan to the contrary, no Employee shall be granted an Option under the
Plan: (i) if, immediately after the grant, such Employee (taking into account stock owned by any other person whose stock would be attributed
to such Employee pursuant to Section 424(d) of the Code) would own stock and/or hold outstanding options to purchase stock possessing
five percent (5%) or more of the total combined voting power or value of all classes of stock of the Company or of any Parent or Subsidiary;
or (ii) which permits the Employee’s rights to purchase stock under all employee stock purchase plans of the Company and its Parents
or Subsidiaries to accrue at a rate which exceeds Twenty-Five Thousand Dollars ($25,000) worth of stock (determined at the Fair Market
Value of the shares at the time such Option is granted) for each calendar year in which such Option is outstanding at any time. The determination
of the accrual of the right to purchase stock shall be made in accordance with Section 423(b)(8) of the Code and the regulations thereunder.
(c) Other
Limits on Eligibility. Notwithstanding Subsection (a), above, unless otherwise determined prior to the applicable Offer Date, the
following Employees shall not be eligible to participate in the Plan for any relevant Offer Period: (i) Employees whose customary
employment is twenty (20) hours or less per week; (ii) Employees whose customary employment is for not more than five (5) months
in any calendar year; (iii) Employees who have not been employed for such continuous period preceding the Offering Date as the Administrator
may require, but in no event shall the required period of continuous employment be equal to or greater than two (2) years; and (iv) Employees
who are citizens or residents of a non-U.S. jurisdiction (without regard to whether he or she is also a citizen of the United States or
a resident alien (within the meaning of Section 7701(b)(1)(A) of the Code)) if his or her participation is prohibited under the laws
of the applicable non-U.S. jurisdiction or if complying with the laws of the applicable non-U.S. jurisdiction would cause the Plan or
an Offering to violate Section 423 of the Code.
4. Offer
Periods.
(a) The
Plan shall be implemented through overlapping or consecutive Offer Periods until such time as (i) the maximum number of shares of Common
Stock available for issuance under the Plan shall have been purchased or (ii) the Plan shall have been sooner terminated in accordance
with Section 18 hereof. The maximum duration of an Offer Period shall be twenty-seven (27) months. Unless determined otherwise by the
Administrator, the Plan shall initially be implemented through consecutive Offer Periods of six (6) months’ duration commencing
each June 1 and December 1 following the Effective Date.
(b) A
Participant shall be granted a separate Option for each Offer Period in which he or she participates. The Option shall be granted on the
Offering Date and shall be automatically exercised on the Exercise Date ending within the Offer Period.
(c) Except
as specifically provided herein, the acquisition of Common Stock through participation in the Plan for any Offer Period shall neither
limit nor require the acquisition of Common Stock by a Participant in any subsequent Offer Period.
5. Participation.
(a) An
eligible Employee may become a Participant in the Plan by submitting an authorization of payroll deduction (using such form or method
(including electronic forms) as the Administrator may designate from time to time) as of a date in advance of the Offering Date for the
Offer Period in which such participation will commence, as required by the Administrator for all eligible Employees with respect to a
given Offer Period.
(b) Payroll
deductions for a Participant shall commence with the first partial or full payroll period beginning on the Offering Date and shall end
on the last complete payroll period during the Offer Period, unless sooner terminated by the Participant as provided in Section 10.
6. Payroll
Deductions.
(a) At
the time a Participant enrolls in the Plan, the Participant shall elect to have payroll deductions made during the Offer Period in amounts
between one percent (1%) and not exceeding fifteen percent (15%) of the Compensation which the Participant receives during the Offer Period.
(b) All
payroll deductions made for a Participant shall be credited to the Participant’s account under the Plan and will be withheld in
whole percentages only. A Participant may not make any additional payments into such account.
(c) A
Participant may discontinue participation in the Plan as provided in Section 10, or may increase or decrease the rate of payroll
deductions during the Offer Period by submitting notice of a change of status (using such form or method (including electronic forms)
as the Administrator may designate from time to time) authorizing an increase or decrease in the payroll deduction rate. Any increase
or decrease in the rate of a Participant’s payroll deductions shall be effective as soon as administratively practicable following
the date of the request. A Participant’s payroll deduction authorization (as modified by any change of status notice) shall remain
in effect for successive Offer Periods unless terminated as provided in Section 10. The Administrator shall be authorized to limit
the number of payroll deduction rate changes during any Offer Period.
(d) Notwithstanding
the foregoing, to the extent necessary to comply with Section 423(b)(8) of the Code and Section 3(b) herein, a Participant’s
payroll deductions shall be decreased to zero percent (0%). Payroll deductions shall recommence at the rate provided in such Participant’s
payroll deduction authorization, as amended, when permitted under Section 423(b)(8) of the Code and Section 3(b), unless such
participation is sooner terminated by the Participant as provided in Section 10.
7. Grant
of Option. On the Offering Date, each Participant shall be granted an Option to purchase (at the applicable Purchase Price) shares
of Common Stock; provided: (i) that such Option shall be subject to the limitations set forth in Sections 3(b), 6 and 12 and (ii) that
such Option shall be subject to such other terms and conditions (applied on a uniform and nondiscriminatory basis), as the Administrator
shall determine from time to time. Exercise of the Option shall occur as provided in Section 8, unless the Participant has withdrawn pursuant
to Section 10, and the Option, to the extent not exercised, shall expire on the last day of the Offer Period with respect to which such
Option was granted. Notwithstanding the foregoing, shares subject to the Option may only be purchased with accumulated payroll deductions
credited to a Participant’s account in accordance with Section 6. In addition, to the extent an Option is not exercised on each
Exercise Date, the Option shall lapse and thereafter cease to be exercisable.
8. Exercise
of Option. Unless a Participant withdraws from the Plan as provided in Section 10, the Participant’s Option for the purchase
of shares of Common Stock will be exercised automatically on each Exercise Date, by applying the accumulated payroll deductions in the
Participant’s account to purchase the number of full shares subject to the Option by dividing such Participant’s payroll deductions
accumulated prior to such Exercise Date and retained in the Participant’s account as of the Exercise Date by the applicable Purchase
Price. No fractional shares will be purchased; any payroll deductions accumulated in a Participant’s account which are not sufficient
to purchase a full share shall be carried over to the next Purchase Period or Offer Period, whichever applies, or returned to the Participant,
if the Participant withdraws from the Plan. In addition, any amount remaining in a Participant’s account following the purchase
of shares on the Exercise Date due to the application of Section 423(b)(8) of the Code or Sections 3 or 7, shall be returned to the
Participant and shall not be carried over to the next Offer Period or Purchase Period. During a Participant’s lifetime, a Participant’s
Option to purchase shares hereunder is exercisable only by the Participant.
9. Delivery.
Upon receipt of a request from a Participant after each Exercise Date on which a purchase of shares occurs, the Company shall arrange
for the delivery to such Participant, as soon as administratively practicable, of the shares purchased upon exercise of the Participant’s
Option.
10. Withdrawal;
Termination of Employment.
(a) A
Participant may, by giving notice to the Company (using such form or method (including electronic forms) as the Administrator may designate
from time to time), either: (i) withdraw all but not less than all the payroll deductions credited to the Participant’s account
and not yet used to exercise the Participant’s Option under the Plan; or (ii) terminate future payroll deductions, but allow
accumulated payroll deductions to be used to exercise the Participant’s Option under the Plan at any time. If the Participant elects
withdrawal alternative (i) described above, all of the Participant’s payroll deductions credited to the Participant’s
account will be paid to such Participant as soon as administratively practicable after receipt of notice of withdrawal, such Participant’s
Option for the Offer Period will be automatically terminated, and no further payroll deductions for the purchase of shares will be made
during the Offer Period. If the Participant elects withdrawal alternative (ii) described above, no further payroll deductions for
the purchase of shares will be made during the Offer Period, all of the Participant’s payroll deductions credited to the Participant’s
account will be applied to the exercise of the Participant’s Option on the next Exercise Date (subject to Sections 3(b), 6,
7 and 12), and after such Exercise Date, such Participant’s Option for the Offer Period will be automatically terminated and all
remaining accumulated payroll deduction amounts shall be returned to the Participant. If a Participant withdraws from an Offer Period,
payroll deductions will not resume at the beginning of the succeeding Offer Period unless the Participant enrolls in such succeeding Offer
Period. The Administrator may, in its discretion and on a uniform and nondiscriminatory basis, specify procedures for withdrawal.
(b) Upon
termination of a Participant’s employment relationship (as described in Section 2(k)) prior to the next scheduled Exercise
Date, the payroll deductions credited to such Participant’s account during the Offer Period but not yet used to exercise the Option
will be returned to such Participant or, in the case of his/her death, to the person or persons entitled thereto pursuant to the Participant’s
will or the laws of descent and distribution, and such Participant’s Option will be automatically terminated without exercise of
any portion of such Option.
11. Interest.
No interest shall accrue on the payroll deductions credited to a Participant’s account under the Plan.
12. Stock.
(a) Subject
to adjustment upon changes in capitalization of the Company as provided in Section 17, the maximum number of shares of Common Stock which
shall be made available for sale under the Plan shall be 300,000 shares. If the Administrator determines that on a given Exercise Date
the number of shares with respect to which Options are to be exercised may exceed: (x) the number of shares then available for sale
under the Plan; or (y) the number of shares available for sale under the Plan on the Offering Date(s) of one or more of the Offer
Periods in which such Exercise Date is to occur, the Administrator may make a pro rata allocation of the shares remaining available for
purchase on such Offering Dates or Exercise Date, as applicable, and shall either continue the Offer Period then in effect or terminate
any one or more Offer Periods then in effect pursuant to Section 18, below. Such allocation method shall be “bottom up,”
with the result that all Option exercises for one (1) share shall be satisfied first, followed by all exercises for two (2)
shares, and so on, until all available shares have been exhausted. Any amount remaining in a Participant’s payroll account following
such allocation shall be returned to the Participant and shall not be carried over to any future Purchase Period or Offer Period, as determined
by the Administrator.
(b) A
Participant will have no interest or voting right in shares covered by the Participant’s Option until such shares are actually purchased
on the Participant’s behalf in accordance with the applicable provisions of the Plan. No adjustment shall be made for dividends,
distributions or other rights for which the record date is prior to the date of such purchase.
(c) Shares
to be delivered to a Participant under the Plan will be registered in the name of the Participant.
13. Administration.
The Plan shall be administered by the Administrator, which shall have full and exclusive discretionary authority to construe, interpret
and apply the terms of the Plan, to determine eligibility, to determine, with respect to each Offer Period, whether the Purchase Price
will be equal to eighty-five percent (85%) of the Fair Market Value of a share of Common Stock on the (i) Exercise Date or (ii) Offering
Date or the Exercise Date (whichever is lower), to adjudicate all disputed claims filed under the Plan, and to designate separate Offerings
for the eligible Employees of the Company and one or more Designated Parents or Subsidiaries, in which case the Offerings will be considered
separate even if the dates of each such Offering are identical and the provisions of the Plan will separately apply to each Offering.
Every finding, decision and determination made by the Administrator shall, to the full extent permitted by Applicable Law, be final and
binding upon all persons. Subject to Applicable Laws, no member of the Board or committee of the Board (or its delegates) shall be liable
for any good faith action or determination made in connection with the operation, administration or interpretation of the Plan. In the
performance of its responsibilities with respect to the Plan, the Administrator may rely upon, and no member of the Board or committee
of the Board (or its delegates) shall be liable for any action taken or not taken in reliance upon, information and/or advice furnished
by the Company’s officers or employees, the Company’s accountants, the Company’s counsel and any other party that a
committee of the Board deems necessary. To the extent not prohibited by Applicable Laws, the Administrator may, from time to time, delegate
some or all of its authority under the Plan to a subcommittee or subcommittees or other persons or groups of persons as it deems necessary,
appropriate or advisable under conditions or limitations that it may set at or after the time of the delegation. For purposes of the Plan,
reference to the Administrator shall be deemed to refer to any subcommittee, subcommittees, or other persons or groups of persons to whom
such committee delegates authority pursuant to this Section 13.
14. Transferability.
No payroll deductions credited to a Participant’s account, Options granted hereunder, or any rights with regard to the exercise
of an Option or to receive shares under the Plan may be assigned, transferred, pledged or otherwise disposed of in any way (other than
by will, the laws of descent and distribution) by the Participant. Any such attempt at assignment, transfer, pledge or other disposition
shall be without effect, except that the Administrator may, in its sole discretion, treat such act as an election to withdraw funds from
an Offer Period in accordance with Section 10.
15. Use
of Funds. All payroll deductions received or held by the Company under the Plan may be used by the Company for any corporate purpose,
and the Company shall not be obligated to segregate such payroll deductions or hold them exclusively for the benefit of Participants.
All payroll deductions received or held by the Company may be subject to the claims of the Company’s general creditors. Participants
shall have the status of general unsecured creditors of the Company. Any amounts payable to Participants pursuant to the Plan shall be
unfunded and unsecured obligations for all purposes, including, without limitation, Title I of the Employee Retirement Income Security
Act of 1974, as amended. The Company shall retain at all times beneficial ownership of any investments which the Company may make to fulfill
its payment obligations hereunder. Any investments or the creation or maintenance of any trust or any Participant account shall not create
or constitute a trust or fiduciary relationship between the Administrator, the Company or any Designated Parent or Subsidiary and a Participant,
or otherwise create any vested or beneficial interest in any Participant or the Participant’s creditors in any assets of the Company
or a Designated Parent or Subsidiary. The Participants shall have no claim against the Company or any Designated Parent or Subsidiary
for any changes in the value of any assets that may be invested or reinvested by the Company with respect to the Plan.
16. Reports.
Individual accounts will be maintained for each Participant in the Plan. Statements of account will be given to Participants at least
annually, which statements will set forth the amounts of payroll deductions, the Purchase Price, the number of shares purchased and the
remaining cash balance, if any.
17. Adjustments
Upon Changes in Capitalization; Corporate Transactions.
(a) Adjustments
Upon Changes in Capitalization. Subject to any required action by the stockholders of the Company, the Administrator, in order to
prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, will, in such manner
as it may deem equitable, adjust the Reserves, the Purchase Price, the maximum number of shares that may be purchased in any Offer Period
or Purchase Period, as well as any other terms that the Administrator determines require adjustment, for: (i) any increase or decrease
in the number of issued shares of Common Stock resulting from a stock split, reverse stock split, stock dividend, combination or reclassification
of the Common Stock; (ii) any other increase or decrease in the number of issued shares of Common Stock effected without receipt
of consideration by the Company; or (iii) as the Administrator may determine in its discretion, any other transaction with respect
to Common Stock, including a corporate merger, consolidation, acquisition of property or stock, separation (including a spin-off or other
distribution of stock or property), reorganization, liquidation (whether partial or complete) or any similar transaction; provided, however,
that conversion of any convertible securities of the Company shall not be deemed to have been “effected without receipt of consideration.”
Such adjustment, if any, shall be made by the Administrator and its determination shall be final, binding and conclusive. Except as the
Administrator determines, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason hereof shall be made with respect to, the Reserves and the Purchase Price.
(b) Corporate
Transactions. In the event of a proposed Corporate Transaction, each Option under the Plan shall be assumed by such successor corporation
or a parent or subsidiary of such successor corporation, unless the Administrator, in the exercise of its sole discretion and in lieu
of such assumption, determines to shorten the Offer Period then in progress by setting a new Exercise Date (the “New Exercise Date”).
If the Administrator shortens the Offer Period then in progress in lieu of assumption in the event of a Corporate Transaction, the Administrator
shall notify each Participant in writing at least ten (10) business days prior to the New Exercise Date, that the Exercise Date for the
Participant’s Option has been changed to the New Exercise Date and that either:
(i) the
Participant’s Option will be exercised automatically on the New Exercise Date, unless prior to such date the Participant has withdrawn
from the Offer Period as provided in Section 10; or
(ii) the
Company shall pay to the Participant on the New Exercise Date an amount in cash, cash equivalents, or property as determined by the Administrator
that is equal to the excess, if any, of (x) the Fair Market Value of the shares subject to the Option over (y) the Purchase
Price due had the Participant’s Option been exercised automatically under Subsection (b)(i) above. In addition, all remaining accumulated
payroll deduction amounts shall be returned to the Participant.
(c) For
purposes of Subsection 17(b), an Option granted under the Plan shall be deemed to be assumed if, in connection with the Corporate Transaction,
the Option is replaced with a comparable Option with respect to shares of capital stock of the successor corporation or Parent thereof.
The determination of Option comparability shall be made by the Administrator prior to the Corporate Transaction and its determination
shall be final, binding and conclusive on all persons.
18. Amendment
or Termination.
(a) The
Administrator may at any time and for any reason terminate or amend the Plan. Except as provided in Section 17, no such termination
can adversely affect Options previously granted, provided that the Plan or any one or more Offer Periods then in effect may be terminated
by the Administrator on any Exercise Date or by the Administrator establishing a new Exercise Date with respect to any Offer Period and/or
Purchase Period then in progress if the Administrator determines that the termination of the Plan or one or more Offer Periods is in the
best interests of the Company and its stockholders. Except as provided in Section 17 and this Section 18, no amendment may make
any change in any Option theretofore granted which adversely affects the rights of any Participant without the consent of affected Participants.
To the extent necessary to comply with Section 423 of the Code (or any successor rule or provision or any other Applicable Law),
the Company shall obtain stockholder approval of any amendment in such a manner and to such a degree as required.
(b) Without
stockholder consent and without regard to whether any Participant rights may be considered to have been “adversely affected,”
the Administrator shall be entitled to limit the frequency and/or number of changes in the amount withheld during Offer Periods, change
the length of Purchase Periods within any Offer Period, determine the length of any future Offer Period, determine whether future Offer
Periods shall be consecutive or overlapping, establish the exchange ratio applicable to amounts withheld in a currency other than U.S.
dollars, establish or change Plan or per Participant limits on share purchases, establish additional terms, conditions, rules or procedures
to accommodate the rules or laws of applicable foreign jurisdictions, permit payroll withholding in excess of the amount designated by
a Participant in order to adjust for delays or mistakes in the Company’s processing of properly completed withholding elections,
establish reasonable waiting and adjustment periods and/or accounting and crediting procedures to ensure that amounts applied toward the
purchase of Common Stock for each Participant properly correspond with amounts withheld from the Participant’s Compensation, and
establish such other limitations or procedures as the Administrator determines in its sole discretion advisable and which are consistent
with the Plan, in each case to the extent consistent with the requirements of Code Section 423 and other Applicable Laws.
19. Notices.
All notices or other communications by a Participant to the Company under or in connection with the Plan shall be deemed to have been
duly given when received in the form specified by the Administrator at the location, or by the person, designated by the Administrator
for the receipt thereof.
20. Conditions
Upon Issuance of Shares. Shares shall not be issued with respect to an Option unless the exercise of such Option and the issuance
and delivery of such shares pursuant thereto shall comply with all Applicable Laws and shall be further subject to the approval of counsel
for the Company with respect to such compliance. As a condition to the exercise of an Option, the Company may require the Participant
to represent and warrant at the time of any such exercise that the shares are being purchased only for investment and without any present
intention to sell or distribute such shares if, in the opinion of counsel for the Company, such a representation is required by any of
the aforementioned Applicable Laws or is otherwise advisable. In addition, no Options shall be exercised or shares issued hereunder before
the Plan shall have been approved by stockholders of the Company as provided in Section 22.
21. Term
of Plan. Subject to approval by the stockholders of the Company, the Plan shall become effective on the Effective Date. It shall continue
in effect for a term of ten (10) years unless sooner terminated under Section 18.
22. Stockholder
Approval. The Plan shall be subject to approval by the stockholders of the Company within twelve (12) months before or after the date
the Plan is adopted. Such stockholder approval shall be obtained in the degree and manner required under Applicable Laws.
23. No
Employment Rights. The Plan does not, directly or indirectly, create any right for the benefit of any employee or class of employees
to purchase any shares under the Plan, or create in any employee or class of employees any right with respect to continuation of employment
by the Company or a Designated Parent or Subsidiary, and it shall not be deemed to interfere in any way with such employer’s right
to terminate, or otherwise modify, an employee’s employment at any time.
24. No
Effect on Retirement and Other Benefit Plans. Except as specifically provided in a retirement or other benefit plan of the Company
or a Designated Parent or Subsidiary, participation in the Plan shall not be deemed compensation for purposes of computing benefits or
contributions under any retirement plan of the Company or a Designated Parent or Subsidiary, and shall not affect any benefits under any
other benefit plan of any kind or any benefit plan subsequently instituted under which the availability or amount of benefits is related
to level of compensation. The Plan is not a “Pension Plan” or “Welfare Plan” under the Employee Retirement Income
Security Act of 1974, as amended.
25. Effect
of Plan. The provisions of the Plan shall, in accordance with its terms, be binding upon, and inure to the benefit of, all successors
of each Participant, including, without limitation, such Participant’s estate and the executors, administrators or trustees thereof,
heirs and legatees, and any receiver, trustee in bankruptcy or representative of creditors of such Participant.
26. Governing Law.
The Plan is to be construed in accordance with and governed by the internal laws of the State of Delaware without giving effect to any
choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Delaware
to the rights and duties of the parties, except to the extent the internal laws of the State of Delaware are superseded by the laws of
the United States. Should any provision of the Plan be determined by a court of law to be illegal or unenforceable, the other provisions
shall nevertheless remain effective and shall remain enforceable.
27. Dispute
Resolution. The provisions of this Section 27 shall be the exclusive means of resolving disputes arising out of or relating to the
Plan. The Company and the Participant, or their respective successors (the “parties”), shall attempt in good faith to resolve
any disputes arising out of or relating to the Plan by negotiation between individuals who have authority to settle the controversy. Negotiations
shall be commenced by either party by notice of a written statement of the party’s position and the name and title of the individual
who will represent the party. Within thirty (30) days of the written notification, the parties shall meet at a mutually acceptable time
and place, and thereafter as often as they reasonably deem necessary, to resolve the dispute. If the dispute has not been resolved by
negotiation, the parties agree that any suit, action, or proceeding arising out of or relating to the Plan shall be brought in the United
States District Court for Delaware (or should such court lack jurisdiction to hear such action, suit or proceeding, in a Delaware state
court) and that the parties shall submit to the jurisdiction of such court. The parties irrevocably waive, to the fullest extent permitted
by law, any objection the party may have to the laying of venue for any such suit, action or proceeding brought in such court. THE PARTIES
ALSO EXPRESSLY WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A JURY TRIAL OF ANY SUCH SUIT, ACTION OR PROCEEDING. If any one or more provisions
of this Section 27 shall for any reason be held invalid or unenforceable, it is the specific intent of the parties that such provisions
shall be modified to the minimum extent necessary to make it or its application valid and enforceable.
12
Exhibit
10.24
Date: |
September
28, 2023 |
|
|
To: |
Anzu
Special Acquisition Corp I, a Delaware corporation (“SPAC”) and Envoy Medical Corporation, a Minnesota corporation
(“Target”) |
|
|
Address: |
12610
Race Track Rd., Ste 250
Tampa,
FL 33626-1300 |
|
|
From: |
(i)
Meteora Special Opportunity Fund I, LP (“MSOF”), (ii) Meteora Capital Partners, LP (“MCP”),
(iii) Meteora Select Trading Opportunities Master, LP (“MSTO”) and (iv) Meteora Strategic Capital, LLC (“MSC”)
(with MCP, MSOF, MSTO and MSC collectively as “Seller”) |
|
|
Re: |
Amendment
to OTC Equity Prepaid Forward Transaction |
|
|
This
letter agreement (this “Amendment”) amends the terms and conditions of the transaction (the “Transaction”)
evidenced by the Confirmation dated as of April 17, 2023 (as amended by the letter agreement, dated as of May 25, 2023, by and among
Seller, SPAC and Target, the “Confirmation”) between Seller, SPAC and Target. Any capitalized term used but not defined
herein shall have the meaning assigned thereto in the Confirmation.
| 1. | Amendment.
Meteora Strategic Capital, LLC is hereby added as a party to the Confirmation. The definition
of “Seller” is hereby replaced in its entirety with the following: |
(i)
Meteora Special Opportunity Fund I, LP (“MSOF”), (ii) Meteora Capital Partners, LP (“MCP”), (iii)
Meteora Select Trading Opportunities Master, LP (“MSTO”) and (iv) Meteora Strategic Capital, LLC (“MSC”)
(with MCP, MSOF, MSTO and MSC collectively as “Seller”).
| 2. | Effectiveness.
This Amendment shall become effective upon execution hereof by the parties hereto. Except
as amended hereby, all the terms of the Transaction and provisions in the Confirmation shall
remain and continue in full force and effect and are hereby confirmed in all respects. |
| 3. | Counterparts.
This Amendment may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if all of the signatures thereto and hereto were upon the same instrument. |
| 4. | Governing
Law. The provisions of this Amendment shall be governed by the laws of the State of New
York (without reference to choice of law doctrine). |
[Signature
page follows]
SPAC
and Target hereby agree to check this Amendment and to confirm that the foregoing correctly sets forth the terms of the Amendment by
signing in the space provided below and returning an executed copy to Seller.
|
Very
truly yours, |
|
|
|
Meteora
Special Opportunity Fund I, LP;
Meteora
Capital Partners, LP; and
Meteora
Select Trading Opportunities Master, LP
Meteora
Strategic Capital, LLC |
|
|
|
By: |
/s/
Vikas Mittal |
|
Name: |
Vikas
Mittal |
|
Title: |
CIO/Managing
Member |
Agreed
and accepted by:
Anzu
Special Acquisition Corp I |
|
|
|
|
|
By: |
/s/
Whitney Haring-Smith |
|
Name: |
Whitney
Haring-Smith |
|
Title: |
Chief
Executive Officer and Chairman |
|
|
|
|
Envoy
Medical Corporation |
|
|
|
By: |
/s/
Brent Lucas |
|
Name: |
Brent
Lucas |
|
Title: |
Chief
Executive Officer |
|
[Signature Page to Amendment No. 1 to OTC Equity
Prepaid Forward Transaction]
Exhibit 21.1
LIST OF SUBSIDIARIES OF ENVOY MEDICAL, INC.
Entity Name |
|
Jurisdiction of Incorporation |
None |
|
|
Exhibit 99.1
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL
INFORMATION
Capitalized terms
used but not defined in this Exhibit 99.1 shall have the meanings ascribed to them in the Current Report on Form 8-K (the
“Form 8-K”) to which this exhibit is attached and, if not defined in the Form 8-K, the definitive proxy
statement/prospectus filed with the SEC on September 14, 2023 (the “Proxy Statement/Prospectus”).
Unless
the context requires otherwise, all references to (i) “Anzu” refer to Anzu Special Acquisition Corp I prior to giving
effect to the Business Combination; (ii) “Envoy Medical” or “New Envoy” refer to the entity formerly known
as Anzu, which is now named Envoy Medical, Inc., after giving effect to the Business Combination; and (iii) “Envoy”
refers to the entity formerly known as Envoy Medical Corporation.
Introduction
The following unaudited pro forma condensed combined financial information
and accompanying notes are provided to aid you in your analysis of the financial aspects of New Envoy following the Business Combination,
the PIPE Transaction and related transactions, which are collectively referred to as the “Transactions”. The following information
is also relevant to understanding the unaudited pro forma condensed combined financial information contained herein:
|
● |
On September 29, 2023, Anzu and Merger Sub completed the previously announced Business Combination with Envoy pursuant to the Business Combination Agreement. As a result of the consummation of the Business Combination, Merger Sub merged with and into Envoy, with Envoy surviving the Merger. |
| ● | Subject
to the terms of the Business Combination Agreement, at the Effective Time, each issued and
outstanding share of Envoy Common Stock (including shares issued upon the exercise or conversion
of the Envoy Warrants, Envoy Convertible Notes or Envoy Preferred Stock), was automatically
cancelled and converted into the right to receive a number of shares of New Envoy Class A
Common Stock calculated based on the Exchange Ratio. In addition, immediately prior to the
Effective Time, each outstanding Envoy Warrant was automatically, depending on the applicable
exercise price, cancelled or exercised on a net exercise basis and converted into shares
of Envoy Common Stock and each outstanding Envoy Convertible Note was converted into shares
of Envoy Common Stock. Further, at the Effective Time, all outstanding options to purchase
Envoy Common Stock were cancelled in exchange for nominal consideration. |
| ● | The
table below presents the exchanges of Envoy Common Stock for New Envoy Class A Common Stock
that occurred upon consummation of the Business Combination on a pro forma basis. |
| |
Shares
of Envoy
Common
Stock
outstanding as of
June 30,
2023 (Historical) | | |
Envoy
convertible
Preferred
Stock into
Envoy
Common
Stock | | |
Conversion
of
Convertible Notes -
related party,
carried at
fair value and
accrued
interests
into Envoy
Common
Stock | | |
Net
exercise of
warrants | | |
Envoy Common
Stock
equivalents
assumed
outstanding
immediately
prior to
Closing | |
Common
stock, par value $0.01 per share | |
| 139,153,144 | | |
| 20,000,000 | | |
| 75,973,218 | | |
| 42,656 | | |
| 235,169,018 | |
Envoy
Common Stock equivalents assumed outstanding immediately prior to Closing | |
| | | |
| | | |
| | | |
| | | |
| 235,169,018 | |
Assumed
Exchange Ratio | |
| | | |
| | | |
| | | |
| | | |
| 0.06378 | |
Estimated
shares of New Envoy Class A Common Stock issued to holders of Envoy Common stock equivalents upon Closing | |
| | | |
| | | |
| | | |
| | | |
| 15,000,000 | |
UNAUDITED
PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
| ● | Upon completion of the Business Combination, the Sponsor forfeited
8,010,000 shares of Anzu Class B Common Stock pursuant to the terms of the Sponsor Support Agreement, and the remaining 2,615,000 shares
of Anzu Class B Common Stock held by the Sponsor and Anzu’s former independent directors converted into shares of New Envoy Class
A Common Stock at the Closing. Following such conversion, the Sponsor transferred an aggregate of 490,000 shares of New Envoy Class A
Common Stock to the parties to the Legacy Forward Purchase Agreements and the Extension Support Agreements. Separately, pursuant to the
Sponsor Support Agreement, the Sponsor exchanged 2,500,000 of the Retained Sponsor Shares for shares of Series A Preferred Stock in a
private exchange offer. |
| ● | Pursuant to the Envoy Bridge Note, the Company issued 1,355,150 shares
of Series A Preferred Stock to GAT Funding, LLC concurrently with the Closing. |
| ● | Pursuant to the Subscription Agreement, the Sponsor subscribed for
and purchased, and Anzu issued and sold to Sponsor, 1,355,150 shares of Series A Preferred Stock, at a price of $10.00 per share, for
gross proceeds of $13,551,500, in a private placement consummated following the Closing and the filing of the Certificate of Designation
for the Series A Preferred Stock. |
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL
INFORMATION
|
● |
On April 17, 2023, prior to entering into the Business Combination
Agreement, Anzu and Envoy entered into an agreement (as amended to date, the “Forward Purchase Agreement”) with Meteora Special
Opportunity Fund I, LP (“MSOF”), Meteora Capital Partners, LP (“MCP”), Meteora Select Trading Opportunities Master,
LP (“MSTO”) and Meteora Strategic Capital, LLC (“MSC” and, collectively with MSOF, MCP and MSTO, the “Seller”)
for an OTC Equity Prepaid Forward Transaction.
Anzu consented to Meteora reversing a previously submitted redemption
request for 425,606 shares of Anzu Class A Common Stock Meteora submitted for redemption and that these 425,606 shares shall be considered
Recycled Shares and eligible for payment to Seller as outlined in the Prepayment section of the Forward Purchase Agreement.
On September 29, 2023, Envoy Medical paid to Seller separately the
Prepayment Amount of $4,453,267 required under the Forward Purchase Agreement directly from the Trust Account. In addition, Envoy Medical
transferred 8,512 shares of New Envoy Class A Common Stock (the “Share Consideration”) to Seller on September 29, 2023.
Envoy Medical and the Seller agreed to waive the requirement under
the Forward Purchase Agreement that Envoy Medical must file a registration statement with the SEC registering the resale of the Recycled
Shares, the Shortfall Sale Shares, the Share Consideration, the Shortfall Warrants and the Shortfall Warrant Shares (the “FPA Registration
Statement”) under the Securities Act within forty-five (45) days following the closing of the Business Combination. From time to
time following the closing of the Business Combination, Seller may, at its discretion, sell Shares without a payment obligation to Envoy
Medical (the “Shortfall Sales”) until such time as the gross proceeds from such Shortfall Sales equal $44,505 (the “Prepayment
Shortfall”). At such time that the amount of gross proceeds generated from Shortfall Sales is equal to the Prepayment Shortfall,
Envoy Medical shall retain an amount equal to 50% of the Prepayment Shortfall on the Prepayment Date and Seller shall pay the remaining
50% of the Prepayment Shortfall on the first OET Date and at such time the Seller may not make any additional Shortfall Sales. The Seller
in its sole discretion may request warrants of Envoy Medical exercisable for shares of New Envoy Class A Common Stock in an amount equal
to (i) 4,300,000 shares of New Envoy Class A Common Stock less (ii) the Number of Shares specified in the Pricing Date Notice (“Shortfall
Warrants” and the shares of Class A Common Stock underlying the Shortfall Warrants, the “Shortfall Warrant Shares”).
The Shortfall Warrants will (i) have an exercise price equal to the Reset Price, (ii) expire on June 30, 2024 and (iii) not provide for
cashless exercise or net share settlement. |
|
● |
In connection with the Closing, holders of 2,386,294 shares of Anzu Class A Common Stock elected to redeem their shares of Anzu Class A Common Stock for a pro rata portion of the Trust Account, or approximately $10.46 per share and approximately $25.0 million in the aggregate. |
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL
INFORMATION
The unaudited pro forma condensed combined financial information has
been prepared based on the Anzu and Envoy historical financial statements as adjusted to give effect to the Transactions. The unaudited
pro forma condensed combined balance sheet as of June 30, 2023 gives pro forma effect to the Transactions as if they had occurred on June
30, 2023. The unaudited pro forma condensed combined statement of operations for the six months ended June 30, 2023, and the year ended
December 31, 2022, give effect to the Transactions as if they had occurred on January 1, 2022.
The unaudited pro forma condensed
combined financial information has been derived from and should be read in conjunction with:
| ● | the
accompanying notes to the unaudited pro forma condensed combined financial information; |
|
● |
the historical unaudited condensed financial statements of Anzu as of and for the six months ended June 30, 2023 and the related notes included elsewhere in the Proxy Statement/Prospectus; |
|
● |
the historical audited financial statements of Anzu as of and for the year ended December 31, 2022 and the related notes included elsewhere in the Proxy Statement/Prospectus; |
|
● |
the historical unaudited condensed financial statements of Envoy as of and for the six months ended June 30, 2023 and the related notes included elsewhere in the Proxy Statement/Prospectus; |
|
● |
the historical audited financial statements of Envoy as of and for the year ended December 31, 2022 and the related notes included elsewhere in the Proxy Statement/Prospectus; and |
|
● |
the sections entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Anzu”, “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Envoy Medical Corporation”, and other financial information relating to each of Anzu and Envoy included elsewhere in the Proxy Statement/Prospectus. |
UNAUDITED PRO FORMA
CONDENSED COMBINED BALANCE SHEET
AS OF JUNE 30, 2023
The unaudited pro forma condensed combined financial information is
for illustrative purposes only and is not necessarily indicative of what the actual results of operations and financial position would
have been had the Transactions taken place on the dates indicated, nor are they indicative of the future consolidated results of operations
or financial position of New Envoy. The unaudited pro forma adjustments are based on information currently available, and assumptions
and estimates underlying the unaudited pro forma adjustments are described in the accompanying Notes to the Unaudited Pro Forma Condensed
Combined Financial Information. If the actual facts are different than these assumptions, then the amounts and shares outstanding in the
unaudited pro forma condensed combined financial information that follows will be different, and those changes could be material.
(In thousands, except for share data) | |
Anzu (Historical) | | |
Envoy (Historical) | | |
Transaction Accounting Adjustments | | |
Notes | |
Pro Forma
Balance Sheet | |
ASSETS | |
| | |
| | |
| | |
| |
| |
Current assets | |
| | |
| | |
| | |
| |
| |
Cash and cash equivalents | |
$ | 133 | | |
$ | 68 | | |
$ | 44,645 | | |
3(a) | |
$ | 5,000 | |
| |
| - | | |
| - | | |
| (2,987 | ) | |
3(b) | |
| - | |
| |
| - | | |
| - | | |
| (13,104 | ) | |
3(c) | |
| - | |
| |
| - | | |
| - | | |
| 10,000 | | |
3(e) | |
| - | |
| |
| - | | |
| - | | |
| (4,453 | ) | |
3(q) | |
| - | |
| |
| - | | |
| - | | |
| 2,918 | | |
3(f) | |
| - | |
| |
| - | | |
| - | | |
| (2,690 | ) | |
3(s) | |
| - | |
| |
| - | | |
| - | | |
| (24,959 | ) | |
3(i) | |
| - | |
| |
| - | | |
| - | | |
| (4,571 | ) | |
3(r) | |
| - | |
Restricted cash | |
| - | | |
| - | | |
| 4,571 | | |
3(r) | |
| 4,571 | |
Accounts receivable, net | |
| - | | |
| 55 | | |
| - | | |
| |
| 55 | |
Inventories | |
| - | | |
| 1,306 | | |
| - | | |
| |
| 1,306 | |
Prepaid income taxes | |
| - | | |
| - | | |
| - | | |
| |
| - | |
Prepaid expenses and other current assets | |
| 265 | | |
| 294 | | |
| - | | |
| |
| 559 | |
Prepaid Forward Purchase Agreement Assets | |
| - | | |
| - | | |
| 3,100 | | |
3(q) | |
| 3,100 | |
Total current assets | |
| 398 | | |
| 1,723 | | |
| 12,470 | | |
| |
| 14,591 | |
Investments held in Trust Account | |
| 44,645 | | |
| - | | |
| (44,645 | ) | |
3(a) | |
| - | |
Property and equipment, net | |
| - | | |
| 345 | | |
| - | | |
| |
| 345 | |
Operating lease right-of-use asset (related party) | |
| - | | |
| 525 | | |
| - | | |
| |
| 525 | |
Total assets | |
$ | 45,043 | | |
$ | 2,593 | | |
$ | (32,175 | ) | |
| |
$ | 15,461 | |
LIABILITIES, REDEEMABLE STOCK, AND STOCKHOLDERS’ DEFICIT | |
| | | |
| | | |
| | | |
| |
| | |
Current liabilities: | |
| | | |
| | | |
| | | |
| |
| | |
Accounts payable | |
$ | 1,431 | | |
$ | 2,360 | | |
$ | (1,184 | ) | |
3(c) | |
$ | 1,795 | |
| |
| - | | |
| - | | |
| (812 | ) | |
3(b) | |
| - | |
Accrued expenses | |
| 5,124 | | |
| 747 | | |
| (45 | ) | |
3(b) | |
| 806 | |
| |
| - | | |
| - | | |
| (5,020 | ) | |
3(c) | |
| - | |
Working Capital Loans | |
| 2,690 | | |
| - | | |
| (2,690 | ) | |
3(s) | |
| - | |
Convertible notes payable, current portion (related party) | |
| - | | |
| 676 | | |
| (676 | ) | |
3(j) | |
| - | |
Operating lease liabilities, current portion (related party) | |
| - | | |
| 148 | | |
| - | | |
| |
| 148 | |
Warranty liability, current portion | |
| - | | |
| 256 | | |
| - | | |
| |
| 256 | |
Income taxes payable | |
| 102 | | |
| - | | |
| - | | |
| |
| 102 | |
Total current liabilities | |
| 9,347 | | |
| 4,187 | | |
| (10,427 | ) | |
| |
| 3,107 | |
Prepaid forward derivative | |
| 145 | | |
| - | | |
| (145 | ) | |
3(o) | |
| - | |
Forward Purchase Agreement liability | |
| - | | |
| - | | |
| 11,192 | | |
3(p) | |
| 11,192 | |
Deferred underwriting fee payable | |
| 10,413 | | |
| - | | |
| (10,413 | ) | |
3(g) | |
| - | |
Derivative warrant liabilities | |
| 1,333 | | |
| - | | |
| (625 | ) | |
3(h) | |
| 708 | |
Convertible notes payable, net of current portion (related party) | |
| - | | |
| 55,324 | | |
| (50,688 | ) | |
3(j) | |
| - | |
| |
| - | | |
| - | | |
| (4,636 | ) | |
3(t) | |
| - | |
Warranty liability, net of current portion | |
| - | | |
| 2,090 | | |
| - | | |
| |
| 2,090 | |
Operating lease liabilities, net of current portion (related party) | |
| - | | |
| 467 | | |
| - | | |
| |
| 467 | |
Warrant liability (related party) | |
| - | | |
| 231 | | |
| (231 | ) | |
3(k) | |
| - | |
Total liabilities | |
| 21,238 | | |
| 62,299 | | |
| (65,973 | ) | |
| |
| 17,564 | |
See accompanying notes to the unaudited pro
forma condensed combined financial information.
UNAUDITED PRO FORMA
CONDENSED COMBINED BALANCE SHEET
AS OF JUNE 30, 2023
(In thousands, except for share data) | |
Anzu (Historical) | | |
Envoy (Historical) | | |
Transaction Accounting Adjustments | | |
Notes | |
Pro Forma Balance Sheet | |
| |
| | |
| | |
| | |
| |
| |
| |
| | |
| | |
| | |
| |
| |
Class A Common Stock subject to possible redemption at redemption value (4,312,774 shares at $10.34 per share) | |
| 44,595 | | |
| - | | |
| (44,595 | ) | |
3(i) | |
| - | |
Redeemable convertible preferred stock, $0.01 par value; 10,000,000 shares authorized 4,000,000 shares issued and outstanding | |
| - | | |
| 19,973 | | |
| (19,973 | ) | |
3(l) | |
| - | |
| |
| | | |
| | | |
| | | |
| |
| | |
Stockholders’ deficit: | |
| | | |
| | | |
| | | |
| |
| | |
Class B Common Stock, $0.0001 par value; 40,000,000 shares authorized; 10,625,000 shares issued and outstanding | |
| 1 | | |
| - | | |
| (1 | ) | |
3(d) | |
| - | |
| |
| - | | |
| - | | |
| | | |
| |
| - | |
| |
| - | | |
| - | | |
| - | | |
| |
| - | |
Envoy Common Stock, $0.01 par value; 232,000,000 shares authorized; 139,153,144 shares issued and outstanding | |
| - | | |
| 1,392 | | |
| (1,392 | ) | |
3(n) | |
| - | |
New Envoy Class A Common Stock, par value $0.0001 | |
| - | | |
| - | | |
| - | | |
3(d) | |
| 2 | |
| |
| - | | |
| - | | |
| 1 | | |
3(i) | |
| - | |
| |
| - | | |
| - | | |
| - | | |
3(j) | |
| - | |
| |
| - | | |
| - | | |
| - | | |
3(k) | |
| - | |
| |
| - | | |
| - | | |
| - | | |
3(l) | |
| - | |
| |
| - | | |
| - | | |
| 1 | | |
3(n) | |
| - | |
| |
| - | | |
| - | | |
| - | | |
3(q) | |
| | |
Series A Preferred Stock, par value $0.0001 | |
| - | | |
| - | | |
| - | | |
3(d) | |
| - | |
| |
| | | |
| | | |
| - | | |
3(e) | |
| - | |
| |
| - | | |
| - | | |
| - | | |
3(f) | |
| - | |
| |
| - | | |
| - | | |
| - | | |
3(t) | |
| - | |
Additional paid-in capital | |
| - | | |
| 171,528 | | |
| (940 | ) | |
3(b) | |
| 267,936 | |
| |
| - | | |
| - | | |
| - | | |
3(c) | |
| - | |
| |
| - | | |
| - | | |
| 1 | | |
3(d) | |
| - | |
| |
| - | | |
| - | | |
| 10,000 | | |
3(e) | |
| - | |
| |
| - | | |
| - | | |
| 2,918 | | |
3(f) | |
| - | |
| |
| - | | |
| - | | |
| 10,413 | | |
3(g) | |
| | |
| |
| - | | |
| - | | |
| 625 | | |
3(h) | |
| - | |
| |
| - | | |
| - | | |
| 19,635 | | |
3(i) | |
| - | |
| |
| - | | |
| - | | |
| 48,458 | | |
3(j) | |
| - | |
| |
| - | | |
| - | | |
| 19,973 | | |
3(l) | |
| - | |
| |
| - | | |
| - | | |
| 1,391 | | |
3(n) | |
| - | |
| |
| - | | |
| - | | |
| (20,791 | ) | |
3(m) | |
| - | |
| |
| - | | |
| - | | |
| 4,636 | | |
3(t) | |
| - | |
| |
| - | | |
| - | | |
| 89 | | |
3(q) | |
| | |
Accumulated deficit | |
| (20,791 | ) | |
| (252,484 | ) | |
| (1,190 | ) | |
3(b) | |
| (269,926 | ) |
| |
| - | | |
| - | | |
| (6,900 | ) | |
3(c) | |
| - | |
| |
| - | | |
| - | | |
| 2,906 | | |
3(j) | |
| - | |
| |
| - | | |
| - | | |
| 231 | | |
3(k) | |
| - | |
| |
| - | | |
| - | | |
| 20,791 | | |
3(m) | |
| - | |
| |
| - | | |
| - | | |
| 145 | | |
3(o) | |
| - | |
| |
| - | | |
| - | | |
| (11,192 | ) | |
3(p) | |
| - | |
| |
| | | |
| | | |
| (1,442 | ) | |
3(q) | |
| | |
Accumulated other comprehensive loss | |
| - | | |
| (115 | ) | |
| - | | |
| |
| (115 | ) |
Total stockholders’ equity | |
| (20,790 | ) | |
| (79,679 | ) | |
| 98,366 | | |
| |
| (2,103 | ) |
Total liabilities, redeemable stock, and stockholders’ equity | |
$ | 45,043 | | |
$ | 2,593 | | |
$ | (32,175 | ) | |
| |
$ | 15,461 | |
See accompanying notes to the unaudited pro
forma condensed combined financial information.
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT
OF OPERATIONS
FOR THE SIX MONTHS ENDED JUNE 30, 2023
| |
Six Months Ended
June 30,
2023 | | |
Six Months Ended
June 30,
2023 | | |
Transaction |
|
|
|
|
Pro Forma
Statement |
|
|
|
(In thousands, except per share and weighted-average share data) | |
Anzu (Historical) | | |
Envoy (Historical) | | |
Accounting Adjustments | | |
Notes | |
of
Operations | | |
Notes |
| |
| | |
| | |
| | |
| |
| | |
|
Net revenues | |
$ | - | | |
$ | 141 | | |
$ | - | | |
| |
$ | 141 | | |
|
Operating cost and expenses: | |
| | | |
| | | |
| | | |
| |
| | | |
|
Cost of goods sold | |
| - | | |
| 627 | | |
| - | | |
| |
| 627 | | |
|
Research and development | |
| - | | |
| 3,790 | | |
| - | | |
| |
| 3,790 | | |
|
General and administrative | |
| - | | |
| 3,975 | | |
| - | | |
| |
| 3,975 | | |
|
| |
| - | | |
| - | | |
| - | | |
| |
| - | | |
|
Formation and operating costs | |
| 2,591 | | |
| - | | |
| - | | |
| |
| 2,591 | | |
|
Total operating costs and expenses | |
| 2,591 | | |
| 8,392 | | |
| - | | |
| |
| 10,983 | | |
|
Operating loss | |
| (2,591 | ) | |
| (8,251 | ) | |
| - | | |
| |
| (10,842 | ) | |
|
Other income (expense): | |
| | | |
| | | |
| | | |
| |
| | | |
|
Loss from changes in fair value of convertible notes payable (related party) | |
| - | | |
| (18,143 | ) | |
| 18,143 | | |
4(d) | |
| - | | |
|
Interest earned on investment held in Trust Account | |
| 3,899 | | |
| - | | |
| (3,899 | ) | |
4(a) | |
| - | | |
|
Other income (expense) | |
| - | | |
| (105 | ) | |
| 104 | | |
4(f) | |
| (1 | ) | |
|
Deferred offering cost forgiveness | |
| - | | |
| - | | |
| - | | |
| |
| - | | |
|
Change in fair value of Forward Purchase Agreements | |
| (354 | ) | |
| - | | |
| - | | |
| |
| (354 | ) | |
|
Prepaid forward derivative | |
| (145 | ) | |
| - | | |
| 145 | | |
4(h) | |
| - | | |
|
Change in fair value of warrant liabilities | |
| (267 | ) | |
| - | | |
| 125 | | |
4(e) | |
| (142 | ) | |
|
Total other income, net | |
| 3,133 | | |
| (18,248 | ) | |
| 14,618 | | |
| |
| (497 | ) | |
|
Income (loss) before income tax expense | |
| 542 | | |
| (26,499 | ) | |
| 14,618 | | |
| |
| (11,339 | ) | |
|
Income tax benefit (expense) | |
| (963 | ) | |
| - | | |
| - | | |
| |
| (963 | ) | |
|
Net income (loss) | |
| (421 | ) | |
| (26,499 | ) | |
| 14,618 | | |
| |
| (12,302 | ) | |
|
Cumulative undeclared preferred dividends | |
| - | | |
| (1,000 | ) | |
| (7,100 | ) | |
4(g) | |
| (8,100 | ) | |
|
Deemed dividend on Series A Convertible Preferred Stock | |
| - | | |
| - | | |
| - | | |
| |
| - | | |
|
Net income (loss) attributable to common stockholders, basic and diluted | |
$ | (421 | ) | |
$ | (27,499 | ) | |
$ | 7,518 | | |
| |
$ | (20,402 | ) | |
|
Net loss per share attributable to common stockholders, basic and diluted | |
| | | |
$ | (0.20 | ) | |
| | | |
| |
$ | (1.10 | ) | |
|
Weighted average common stock outstanding, basic and diluted | |
| | | |
| 139,153,144 | | |
| | | |
| |
| 18,549,992 | | |
4(k) |
Net income allocated to Class A Common stock | |
| 265 | | |
| | | |
| | | |
| |
| | | |
|
Basic and diluted net income (loss) per common stock, Anzu Class A common stock | |
$ | 0.01 | | |
| | | |
| | | |
| |
| | | |
|
Weighted average number of Class A Common Stock, basic and diluted | |
| 18,026,419 | | |
| | | |
| | | |
| |
| | | |
|
Net income allocated to Class B Common stock | |
| 155 | | |
| | | |
| | | |
| |
| | | |
|
Basic and diluted net income (loss) per common stock, Anzu Class B common stock | |
$ | 0.01 | | |
| | | |
| | | |
| |
| | | |
|
Weighted average number of Class B Common Stock, basic and diluted | |
| 10,625,000 | | |
| | | |
| | | |
| |
| | | |
|
See
accompanying notes to the unaudited pro forma condensed combined financial information.
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT
OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 2022
| |
Year Ended December 31,
2022 | | |
Year Ended December 31,
2022 | | |
Transaction |
|
|
|
|
Pro Forma
Statement |
|
|
|
(In thousands, except per share and weighted-average share data) | |
Anzu (Historical) | | |
Envoy (Historical) | | |
Accounting Adjustments | | |
Notes | |
of
Operations | | |
Notes |
| |
| | |
| | |
| | |
| |
| | |
|
Net revenues | |
$ | - | | |
$ | 237 | | |
$ | - | | |
| |
$ | 237 | | |
|
Operating cost and expenses: | |
| | | |
| | | |
| | | |
| |
| | | |
|
Cost of goods sold | |
| - | | |
| 957 | | |
| - | | |
| |
| 957 | | |
|
Research and development | |
| - | | |
| 4,516 | | |
| - | | |
| |
| 4,516 | | |
|
General and administrative | |
| - | | |
| 3,470 | | |
| 1,565 | | |
4(b) | |
| 5,035 | | |
|
| |
| - | | |
| - | | |
| 6,901 | | |
4(c) | |
| 6,901 | | |
|
Formation and operating costs | |
| 4,888 | | |
| - | | |
| - | | |
| |
| 4,888 | | |
|
Total operating costs and expenses | |
| 4,888 | | |
| 8,943 | | |
| 8,466 | | |
| |
| 22,297 | | |
|
Operating loss | |
| (4,888 | ) | |
| (8,706 | ) | |
| (8,466 | ) | |
| |
| (22,060 | ) | |
|
Other income (expense): | |
| | | |
| | | |
| | | |
| |
| | | |
|
Loss from changes in fair value of convertible notes payable (related party) | |
| - | | |
| (7,090 | ) | |
| 7,090 | | |
4(d) | |
| - | | |
|
Interest earned on investment held in Trust Account | |
| 6,125 | | |
| - | | |
| (6,125 | ) | |
4(a) | |
| - | | |
|
Other income (expense) | |
| - | | |
| (127 | ) | |
| (1,442 | ) | |
4(j) | |
| (12,530 | ) | |
|
| |
| - | | |
| - | | |
| (11,192 | ) | |
4(i) | |
| | | |
|
| |
| - | | |
| - | | |
| 231 | | |
4(f) | |
| - | | |
|
Deferred offering cost forgiveness | |
| 150 | | |
| - | | |
| - | | |
| |
| 150 | | |
|
Change in fair value of Forward Purchase Agreements | |
| (649 | ) | |
| - | | |
| - | | |
| |
| (649 | ) | |
|
Change in fair value of warrant liabilities | |
| 19,997 | | |
| - | | |
| (9,374 | ) | |
4(e) | |
| 10,623 | | |
|
Total other income, net | |
| 25,623 | | |
| (7,217 | ) | |
| (20,812 | ) | |
| |
| (2,406 | ) | |
|
Income (loss) before income tax expense | |
| 20,735 | | |
| (15,923 | ) | |
| (29,278 | ) | |
| |
| (24,466 | ) | |
|
Income tax benefit (expense) | |
| (1,502 | ) | |
| - | | |
| - | | |
| |
| (1,502 | ) | |
|
Net income (loss) | |
| 19,233 | | |
| (15,923 | ) | |
| (29,278 | ) | |
| |
| (25,968 | ) | |
|
Cumulative undeclared preferred dividends | |
| - | | |
| (2,000 | ) | |
| (3,400 | ) | |
4(g) | |
| (5,400 | ) | |
|
Deemed dividend on Series A Convertible Preferred Stock | |
| - | | |
| - | | |
| - | | |
| |
| - | | |
|
Net income (loss) attributable to common stockholders, basic and diluted | |
$ | 19,233 | | |
$ | (17,923 | ) | |
$ | (32,678 | ) | |
| |
$ | (31,368 | ) | |
|
Net loss per share attributable to common stockholders, basic and diluted | |
| | | |
$ | (0.13 | ) | |
| | | |
| |
$ | (1.69 | ) | |
|
Weighted average common stock outstanding, basic and diluted | |
| | | |
| 139,162,385 | | |
| | | |
| |
| 18,549,992 | | |
4(k) |
Net income allocated to Class A Common stock | |
| 15,387 | | |
| | | |
| | | |
| |
| | | |
|
Basic and diluted net income (loss) per common stock, Anzu Class A Common Stock | |
$ | 0.36 | | |
| | | |
| | | |
| |
| | | |
|
Weighted average number of Class A Common Stock, basic and diluted | |
| 42,500,000 | | |
| | | |
| | | |
| |
| | | |
|
Net income allocated to Class B Common Stock | |
| 3,846 | | |
| | | |
| | | |
| |
| | | |
|
Basic and diluted net income (loss) per common stock, Anzu Class B Common Stock | |
$ | 0.36 | | |
| | | |
| | | |
| |
| | | |
|
Weighted average number of Class B Common Stock, basic and diluted | |
| 10,625,000 | | |
| | | |
| | | |
| |
| | | |
|
See
accompanying notes to the unaudited pro forma condensed combined financial information.
NOTES TO UNAUDITED PRO
FORMA CONDENSED COMBINED FINANCIAL INFORMATION
| 1. | Basis of Pro Forma Presentation |
The unaudited pro forma condensed
combined financial information was prepared in accordance with Article 11 of SEC Regulation S-X, as amended by the
final rule, Release No. 33-10786, Amendments to Financial Disclosures about Acquired and Disposed Businesses. Release
No. 33-10786 replaces the historical pro forma adjustments criteria with simplified requirements to depict the accounting for
the transaction (“Transaction Accounting Adjustments”) and present the reasonably estimable synergies and other transaction
effects that have occurred or are reasonably expected to occur (“Management’s Adjustments”). Management has elected
not to present Management’s Adjustments and will only be presenting Transaction Accounting Adjustments in the unaudited pro forma
condensed combined financial information. The adjustments presented in the unaudited pro forma condensed combined financial information
have been identified and presented to provide relevant information necessary for an understanding of New Envoy upon consummation of the
Transactions. The unaudited pro forma condensed combined financial information does not give effect to any anticipated synergies, operating
efficiencies, tax savings, or cost savings that may be associated with the Business Combination. Anzu and Envoy had not had any historical
relationship prior to the Business Combination. Accordingly, no pro forma adjustments were required to eliminate activities between the
companies.
The unaudited pro forma condensed
combined financial information has been prepared based on the Anzu and Envoy historical financial statements as adjusted to give effect
to the Transactions. The unaudited pro forma condensed combined balance sheet as of June 30, 2023 gives pro forma effect to the
Transactions as if they had occurred on June 30, 2023. The unaudited pro forma condensed combined statement of operations for the
six months ended June 30, 2023, and the year ended December 31, 2022, give effect to the Transactions as if they had occurred on
January 1, 2022.
The pro forma adjustments
reflecting the consummation of the Transactions are based on certain currently available information and certain assumptions and methodologies
that each of Anzu and Envoy believes are reasonable under the circumstances. The pro forma adjustments, which are described
in the accompanying notes, may be revised as additional information becomes available and is evaluated. Therefore, it is likely that the
actual adjustments will differ from the pro forma adjustments, and it is possible the differences may be material. Each of Anzu and
Envoy believes that its assumptions and methodologies provide a reasonable basis for presenting all the significant effects of the Transactions
based on information available to management at this time and that the pro forma adjustments give appropriate effect to those assumptions
and are properly applied in the unaudited pro forma condensed combined financial information.
The unaudited pro forma
condensed combined financial information has been prepared based on actual redemptions of 2,386,294 shares of Anzu Class A Common
Stock based on a redemption price of $10.46 per share, or approximately $25.0 million in the aggregate as of September
27, 2023, the purchase of 425,606 shares by the Seller under the Forward Purchase Agreement, resulting in an aggregate cash payment of
approximately $4.5 million out of the Trust Account, the issuance of additional 2% Share Consideration under the Forward Purchase Agreement, and the consummation of the PIPE
Transaction and the Envoy Bridge Financing.
NOTES TO UNAUDITED PRO
FORMA CONDENSED COMBINED FINANCIAL INFORMATION
Upon
closing of the Business Combination, shares outstanding as presented in the unaudited pro forma condenses combined financial statements
include the following:
| |
Number of Common Shares Owned | | |
Number of Preferred Shares Owned | | |
Number of Preferred Shares as converted to Common Stocks | | |
% Common Ownership | | |
% Ownership (as converted) | |
(Shares in thousands) | |
| | |
| | |
| | |
| | |
| |
Envoy shareholders | |
| 15,000 | | |
| - | | |
| - | | |
| 80.9 | % | |
| 66.8 | % |
Anzu-Affiliated PIPE Investors | |
| - | | |
| 1,000 | | |
| 870 | | |
| 0.0 | % | |
| 3.9 | % |
Envoy Bridge Note Holders | |
| - | | |
| 1,000 | | |
| 870 | | |
| 0.0 | % | |
| 3.9 | % |
Anzu stockholders | |
| 1,501 | | |
| - | | |
| - | | |
| 8.1 | % | |
| 6.7 | % |
Anzu Sponsor | |
| 1,000 | | |
| 2,500 | | |
| 2,174 | | |
| 5.4 | % | |
| 14.1 | % |
Meteora Parties** | |
| 534 | | |
| - | | |
| - | | |
| 2.9 | % | |
| 2.4 | % |
Other Parties* | |
| 515 | | |
| - | | |
| - | | |
| 2.8 | % | |
| 2.3 | % |
Total | |
| 18,550 | | |
| 4,500 | | |
| 3,914 | | |
| 100 | % | |
| 100 | % |
| * | Other Parties include former and current directors and officers
of Anzu, parties to the Extension Support Agreements and Legacy Forward Purchasers. |
| ** | Meteora Parties includes Meteora Special Opportunity Fund I, LP (“MSOF”), Meteora Capital Partners, LP (“MCP”),
Meteora Select Trading Opportunities Master, LP (“MSTO”) and Meteora Strategic Capital, LLC (“MSC” and, collectively
with MSOF, MCP and MSTO, the “Seller”). Number of shares of New Envoy Class A Common Stock owned by
the Seller includes 425,606 shares acquired by the Seller from parties that exercised their redemption rights and 8,512 shares of 2%
Share Consideration pursuant to the Forward Purchase Agreement, in addition to the 100,000 shares received under the Extension Support
Agreement. |
The
number of shares of Series A Preferred Stock as converted to shares of New Envoy Class A Common Stock and as converted ownership percentage
in the above tables assume that the Series A Preferred holders converted their shares into shares of New Envoy Class A Common Stock based
on the ratio determined by dividing the Original Issuance Price of $10.00 by the Conversion Price of $11.50 pursuant to the Certificate
of Designation.
The
total number of shares does not include (a) shares issuable upon the exercise of 14,166,666 public warrants to purchase shares of Anzu
Class A Common Stock on a one to one basis, which remain outstanding immediately following the Business Combination, (b) 1,000,000 shares
of Contingent Sponsor Shares which are unvested and subject to forfeiture upon the Closing and will vest upon the FDA approval of the
Acclaim, (c) the issuance of shares upon completion of the Business Combination under the New Envoy Incentive Plan, and (d) any increase
or decrease in the shares of Anzu Common Stock that will be issued to as a result of the adjustments to the Merger Consideration pursuant
to the terms of the Business Combination Agreement.
| 2. | Accounting for the Business Combination |
Notwithstanding
the legal form, the Business Combination will be accounted for as a reverse recapitalization in accordance with GAAP. Under this method
of accounting, Anzu will be treated as the acquired company for accounting purposes, whereas Envoy will be treated as the accounting
acquirer. In accordance with this method of accounting, the Business Combination will be treated as the equivalent of Envoy issuing shares
for the net assets of Anzu, accompanied by a recapitalization. The net assets of Anzu will be stated at historical cost, with no goodwill
or other intangible assets recorded, and operations prior to the Business Combination
will be those of Envoy. Envoy has been determined to be the accounting acquirer for purposes of the Business Combination based on an
evaluation of the following facts and circumstances:
| ● | 80.9%
of the combined entity’s voting common shares will be held by the former owners of
Envoy while 5.4% of the voting interest is held by former owners of Anzu. |
Approximately
4,500,000 shares of Series A Preferred Stock were issued at Closing, of which 3,500,000 are held by the Sponsor and the
Anzu-affiliated PIPE investors and 1,000,000 are held by a former owner of Envoy. The Series A Preferred Holders have the right
to convert their shares into shares of New Envoy Class A Common Stock at any time based on the Conversion Price of $11.50. If these
shares were included on an as-converted basis, the relative voting rights would be 70.6% and 18.0% for Envoy and Anzu/PIPE
investors, respectively.
NOTES TO UNAUDITED PRO
FORMA CONDENSED COMBINED FINANCIAL INFORMATION
| ● | The
largest single owner in the combined entity is a former shareholder of Envoy. |
| ● | Envoy
will designate a majority of the governing body of New Envoy. |
| ● | The
executive officers of the New Envoy immediately after the Closing will be the same individuals
as those of Envoy immediately prior to the Closing. |
| ● | Envoy’s operations
will comprise the ongoing operations of New Envoy. |
| 3. | Adjustments
to Unaudited Pro Forma Condensed Combined Balance Sheet as of June 30, 2023 |
The
pro forma notes and adjustments, based on preliminary estimates that could change materially as additional information is obtained, are
as follows:
Pro
Forma Business Combination Accounting Adjustments:
| (a) | To
reflect a reclassification of the Cash and Marketable securities held in Trust Account to
Cash and cash equivalents. |
| (b) | To reflect the payment of Envoy’s total estimated advisory, legal,
accounting and auditing fees including other professional fees of $1.1 million that are deemed to be direct and incremental costs as well
as $3.0 million that are not direct and incremental expenses of the Business Combination. The payment of $1.1 million of costs directly
attributable to the Business Combination has been recorded as a reduction of $0.7 million in cash and a corresponding reduction of $0.1
million to accounts payable and $0.6 million reduction of additional paid-in capital and a reclassification of $0.4 million of accumulated
deficit to additional paid-in capital. Of the $3.0 million that are not direct and incremental expenses of the Business Combination, $0.7
million has already been paid and recorded within accumulated deficit. The payment of the remaining $2.3 million has been recorded as
an increase of $1.6 million to accumulated deficit, a reduction of $0.7 million to accounts payable and $45 thousand accrued expenses.
These transaction costs are preliminary estimates; the final amounts and the resulting effect on New Envoy’s financial position
and results of operations may differ significantly. |
| (c) | To reflect payment of total preliminary estimated transaction costs
of Anzu of $14.2 million that were incurred and is expected to be incurred in connection with the Business Combination but are not directly
attributable to the proposed offering of securities and are a non-recurring item. Of the $14.2 million transactions costs, $1.1 million
has already been paid and recorded within accumulated deficit. The payment of transaction costs that are not directly attributable to
the proposed offering of securities is recorded as a reduction in cash of $13.1 million and a corresponding reduction of $1.2 million
in accounts payable, and $5.0 million in accrued expenses, as well as a $6.9 million increase to the accumulated deficit. Included in
this adjustment are $2.7 million of SPAC D&O tail policy and $2.2 million related to 1% Excise Tax on the redemptions of Anzu public
shares. The SPAC D&O tail policy expense and the Excise Tax expense are excluded from the definition of the SPAC Transaction Expenses
Cap. These transaction costs are preliminary estimates; the final amounts and the resulting effect on New Envoy’s financial position
and results of operations may differ significantly. |
| (d) | To reflect the conversion of 10,625,000 shares of Anzu Class B Common Stock into 2,615,000 shares of New
Envoy Class A Common Stock, and 2,500,000 shares of Series A Preferred Stock in a private exchange offer, with the remaining 5,510,000
shares of Anzu Class B Common Stock being forfeited upon the Closing. |
NOTES TO UNAUDITED PRO
FORMA CONDENSED COMBINED FINANCIAL INFORMATION
| (e) | To reflect the proceeds of $10.0 million from the issuance and sale of 1,000,000 shares of Series A Preferred
Stock at a par value of $0.0001 in the PIPE Transaction pursuant to the Subscription Agreement. |
| (f) | To reflect the proceeds of $2.9 million from the issuance of the Bridge Note and immediate conversion
upon the Closing of 291,789 shares of Series A Preferred Stock at a par value of $0.0001 as part of a $10.0 million Bridge Note from GAT
in the Envoy Bridge Financing. The remaining $7.1 million is transferred from the existing Envoy convertible note pursuant to the Bridge
Note agreement. Refer to 3(t) for the adjustment related to the transfer of convertible note into the Bridge Note and the subsequent conversion
into Series A Preferred Stock. |
| (g) | To reflect the elimination of deferred underwriting fee payable of $10.4 million, which is related to
costs incurred in connection with the Anzu initial public offering and a corresponding $10.4 million adjustment to additional paid-in
capital, as a result of a concession agreed with the underwriters. |
| (h) | To reflect the elimination of 12,500,000 private warrants forfeited as part of the Business Combination
for the amount of $0.6 million, which is the fair value of the private warrants as of June 30, 2023. |
| (i) | To reflect the redemption of 2,386,294 shares of Anzu Class A Common Stock subject to redemption at a
redemption price per share of $10.46 for an aggregate redemption price of $25.0 million. Additionally, this resulted in a reclassification
of 1,926,480 shares of Anzu Class A Common Stock subject to redemption into shares of New Envoy Class A Common Stock with a par value
of $0.0001 and an increase in additional paid-in capital of $19.6 million. |
| (j) | To reflect the conversion of the Envoy Convertible Notes with a principal amount of $59.7 million and
interest of $16.3 million into 4,845,869 shares of New Envoy Class A Common Stock. Envoy has presented Envoy Convertible Notes under the
fair value option. Under the fair value option, the Envoy Convertible Notes have been stated at the fair value of $56.0 million as of
June 30, 2023, of which, $4.6 million represents the fair value of $7.0 million of convertible notes transferred to the Bridge Note (See
3(t) for further details). The resultant change in fair value of $18.1 million is recorded as loss on change in fair value of debt for
the six months ended June 30, 2023 and $8.2 million was recognized in the accumulated deficit for the changes in fair value of debt for
the periods prior to the six months ended June 30, 2023. Upon conversion, the fair value of the Envoy Convertible Notes of $51.4 million
as of June 30, 2023 was derecognized. The New Envoy Class A Common Stock issued in exchange for the Envoy Convertible Notes was recorded
at the fair value of the New Envoy Class A Common Stock in the amount of $485 and additional paid-in capital in the amount of $48.5 million,
with the resulting difference being accounted for as a gain of $2.9 million in accumulated deficit. |
| (k) | To reflect Envoy Warrants canceled or converted on a net exercise basis into shares of Envoy Common Stock
in accordance with the Warrant Amendment Agreement. Out of 8,695,000 Envoy Warrants outstanding, 70,000 were converted into 2,683 shares
of New Envoy Class A Common Stock. Out of the remaining 8,625,000 Envoy Warrants that were forfeited as part of the Business Combination,
1,150,000 Envoy Warrants were classified as a liability in Envoy’s historical financial statements with a fair value amounting to
$0.2 million and is recorded as a reduction of accumulated deficit. |
| (l) | To reflect the conversion of 4,000,000 shares of Envoy Preferred Stock into 1,275,678 shares of New Envoy
Class A Common Stock, as adjusted for the Exchange Ratio. |
| (m) | To reflect the elimination of Anzu’s historical accumulated deficit. |
| (n) | To reflect the recapitalization of Envoy through the Business Combination and the issuance of 8,875,732
shares of New Envoy Class A Common Stock recorded as $888 in New Envoy Class A Common Stock and $1.4 million in additional paid-in capital. |
| (o) | To reflect the reversal of $0.1 million Prepaid forward derivative liability as of June 30, 2023, as this
is based on the value of the Prepaid Forward Agreement prior to the Closing. Refer to Note 3(p) and 3(q) for the transaction accounting
adjustments related to the Prepaid Forward Purchase Agreement upon the Closing. |
NOTES TO UNAUDITED PRO
FORMA CONDENSED COMBINED FINANCIAL INFORMATION
| (p) | To reflect the fair value of the Forward Purchase Agreement warrant
liability (defined as the “Shortfall Warrant” under the Forward Purchase Agreement) for the Shortfall Warrants exercisable
for 3,874,394 shares of New Envoy Class A Common Stock. The value of the Forward Purchase Agreement warrant liability was calculated using
a Monte Carlo multi-scenario model, which was prepared as if it was entered into on June 30, 2023. The principal assumptions of the valuation
are as follows: volatility 65%; risk free interest of 5.26%; and a period of one year. |
| (q) | To reflect the fair value of the Prepaid Forward Purchase Agreement Asset for 425,606 shares repurchased
by Meteora Parties, including $4.5 million in cash delivered to the Seller at Closing for the Prepayment under the Forward Purchase Agreement
for $10.46 redemption price less 50% of the 1% of Prepayment Shortfall plus issuance of additional 2% Share Consideration. This resulted
in a loss of $1.4 million recorded in accumulated deficit. The value of the Prepaid Forward Purchase Agreement Assets was calculated using
a Monte Carlo multi-scenario model. The valuation of the Forward Purchase Agreement derivative was prepared as if it was entered into
on June 30, 2023 and the principal assumptions of the valuation are as follows: volatility 65%; risk free interest of 5.26%;
and a period of one year. |
| (r) | To reflect reclassification of cash to restricted cash for the funds allocated for preferred dividends
of $5.4 million pursuant to the Certificate of Designation of the Series A Preferred Stock. Only $4.6 million of cash is reclassified
to restricted cash as the funds are allocated for the dividends to the extent that $5.0 million of the minimum cash is available immediately
following the Closing after paying expenses related to the transactions contemplated by the Business Combination Agreement. |
| (s) | To reflect the repayment of $2.7 million working capital loan upon
the Closing in cash. As noted above, pursuant to the Sponsor Support Agreement, subject to and upon the Closing, the Sponsor agreed to
forego its right to convert up to $1,500,000 of such loans that may be convertible into warrants. |
| (t) | To reflect transfer of $7.0 million convertible note issued during
the six months ended June 30, 2023 and the respective accrued interests into the Bridge Note pursuant to the Bridge Note agreement, and
the subsequent conversion of the Bridge Note into Series A Preferred Stock upon the Closing. As Envoy has presented Envoy Convertible
Notes under the fair value option, the $7.0 million proceeds of convertible note was recorded at its fair value of $4.6 million as of
June 30, 2023. The conversion of the Bridge Note is recorded as 708,211 shares of Series A Preferred Stock at a par value of $0.0001,
and reversal of the Convertible notes payable of $4.6 million with the difference recorded in additional paid-in capital. |
| 4. | Adjustments to Unaudited Pro Forma Condensed Combined Statement of Operations for the Six Months
Ended June 30, 2023 and the Year Ended December 31, 2022 |
The pro forma notes and adjustments, based on
preliminary estimates that could change materially as additional information is obtained, are as follows:
Pro Forma Business Combination Accounting
Adjustments:
| (a) | To reflect the elimination of Interest earned on investment held in the Trust Account. |
| (b) | To reflect non-recurring transaction closing costs, not yet paid, of $1.6 million within general and administrative
expense of Envoy for the year ended December 31, 2022, that are not considered direct and incremental expenses. See Note 3(b). |
| (c) | To reflect non-recurring transaction costs of $6.9 million within general and administrative expense of
Anzu for the year ended December 31, 2022, that are not considered direct and incremental expenses. See Note 3(c). |
| (d) | To reflect the elimination of loss from changes in fair value of convertible notes payable (related party),
as if the Envoy Convertible Notes were converted on January 1, 2022. |
NOTES TO UNAUDITED PRO
FORMA CONDENSED COMBINED FINANCIAL INFORMATION
| (e) | To reflect adjustment for the loss on change in fair value of Anzu’s private placement warrant liability
of $0.1 million for the six months ended June 30, 2023, and the gain of $9.4 million for the year ended December 31, 2022, as if the warrant
liability was derecognized as on January 1, 2022. |
| (f) | To reflect the elimination of loss on change in fair value of Envoy warrant liability of $0.1 million
for the six months ended June 30, 2023, and a gain of $0.2 million related to the forfeiture of Envoy Warrants as described in Note 3(k)
for the year ended December 31, 2022. This adjustment is non-recurring in nature. |
| (g) | To reflect a net adjustment of $7.1 million to eliminate $1.0 million in dividends related to Envoy Preferred
Stock converted into New Envoy Class A Common Stock at Closing and to record $8.1 million in cumulative dividends related to the Series
A Preferred Stock for the six months ended June 30, 2023, and a net adjustment of $3.4 million to eliminate $2 million in dividends related
to Envoy Preferred Stock converted into New Envoy Class A Common Stock at Closing and to record $5.4 million in dividends related to the
Series A Preferred Stock for the year ended December 31, 2022, respectively. The dividend rate on the Series A Preferred Stock is 12%. |
| (h) | To reflect the reversal of $0.1 million Prepaid Forward derivative expense recorded for the six months
ended June 30, 2023 as the unaudited pro forma condensed combined statement of operations gives effect to the Business Combination as
if it had occurred on January 1, 2022. This adjustment is non-recurring in nature. |
| (i) | To reflect the adjustment for the Forward Purchase Agreement warrant liability expense of $11.2 million
as described in Note 3(p) for the year ended December 31, 2022 as the unaudited pro forma condensed combined statement of operations gives
effect to the Business Combination as if it had occurred on January 1, 2022. |
| (j) | To reflect the loss related to the Prepaid Forward Purchase Agreement as described in Note 3(q). |
| (k) | Represents the pro forma basic and diluted net loss per share attributable
to holders of New Envoy Class A Common Stock presented in conformity with the two-class method required for participating securities as
a result of the pro forma adjustments. The two-class method requires income available to common stockholders for the period to be allocated
between shares of New Envoy Class A Common Stock and participating securities based on their respective rights to receive earnings as
if all earnings for the period had been distributed. The shares of Series A Preferred Stock are participating securities that contractually
entitle the holders of such shares to participate in New Envoy’s earnings but do not contractually require the holders of such shares
to participate in New Envoy’s losses. |
Included in the shares outstanding and weighted-average shares outstanding
(for the calculation of pro forma basic earnings per share) as presented in the unaudited pro forma condensed combined financial information
are the shares of New Envoy Class A Common Stock issued to legacy Envoy stockholders on the Closing Date of the Business Combination
and the Anzu shares that remained outstanding and that represent shares of New Envoy Class A Common Stock (as adjusted, where applicable),
which includes the shares of Anzu Class B Common Stock that are not forfeited by the Sponsor, the shares issued in connection with the
PIPE Transaction, the Envoy Bridge Financing, the shares held by parties to the Legacy Forward Purchase Agreements, the Extension Support
Agreements, and the shares purchased by the Seller pursuant to the Forward Purchase Agreement.
NOTES TO UNAUDITED PRO
FORMA CONDENSED COMBINED FINANCIAL INFORMATION
The pro forma basic and diluted earnings
per share amounts presented in the unaudited pro forma condensed combined statement of operations are based on the number of New Envoy
shares outstanding as if the Transactions had occurred on January 1, 2022. The calculation of weighted-average shares outstanding for
pro forma basic and diluted earnings per share assumes that the shares issuable in connection with the Transactions have been outstanding
for the entirety of the period presented.
Pro forma weighted-average shares outstanding
— basic and diluted is calculated as follows:
| |
Six months
ended
June 30,
2023 | |
Weighted-average shares calculation - basic and diluted | |
Actual
Redemptions | |
(In thousands, except share and per share data) | |
| |
Numerator: | |
| |
Pro Forma net loss | |
$ | (12,302 | ) |
Less: pro forma cumulative preferred stock dividends | |
| (8,100 | ) |
Less: deemed dividends | |
| - | |
Pro Forma net loss attributable to holders of New Envoy Class A Common Stock | |
$ | (20,402 | ) |
Denominator: | |
| | |
Envoy Stockholders holding New Envoy Class A Common Stock | |
| 15,000,000 | |
Anzu Sponsor holding New Envoy Class A Common Stock | |
| 1,000,000 | |
Anzu Public Stockholders holding New Envoy Class A Common Stock | |
| 1,500,874 | |
Meteora Parties holding New Envoy Class A Common Stock | |
| 534,118 | |
Other Parties holding New Envoy Class A Common Stock | |
| 515,000 | |
Pro forma weighted-average shares outstanding—basic and diluted | |
| 18,549,992 | |
Pro forma basic and diluted earnings per share(1) | |
$ | (1.10 | ) |
| |
Year ended
December 31,
2022 | |
Weighted-average shares calculation - basic and diluted | |
Actual redemptions | |
(In thousands, except share and per share data) | |
| |
Numerator: | |
| |
Pro Forma net loss | |
$ | (25,968 | ) |
Less: pro forma cumulative preferred stock dividends | |
| (5,400 | ) |
Less: deemed dividends | |
| - | |
Pro Forma net loss attributable to holders of New Envoy Class A Common Stock | |
$ | (31,368 | ) |
Denominator: | |
| | |
Envoy Stockholders holding New Envoy Class A Common Stock | |
| 15,000,000 | |
Anzu Sponsor holding New Envoy Class A Common Stock | |
| 1,000,000 | |
Anzu Public Stockholders holding New Envoy Class A Common Stock | |
| 1,500,874 | |
Meteora Parties holding New Envoy Class A Common Stock | |
| 534,118 | |
Other Parties holding New Envoy Class A Common Stock | |
| 515,000 | |
Pro forma weighted-average shares outstanding—basic and diluted | |
| 18,549,992 | |
Pro forma basic and diluted earnings per share(1) | |
$ | (1.69 | ) |
| (1) | Because New Envoy was in a loss position for each of the
periods presented, diluted net loss per share is the same as basic net loss per share for each period, as the inclusion of all potential
common stock shares outstanding would have been anti-dilutive. The potentially dilutive securities that were excluded from the diluted
per share calculation because they would have been anti-dilutive were as follows: |
NOTES TO UNAUDITED PRO
FORMA CONDENSED COMBINED FINANCIAL INFORMATION
| |
Actual
redemptions | |
Anzu Sponsor holding Series A Preferred Stock (as converted)* | |
| 2,173,913 | |
Envoy Affiliated PIPE Investor holding Series A Preferred Stock (as converted)* | |
| 869,565 | |
Envoy Bridge Note Holder holding Series A Preferred Stock (as converted)* | |
| 869,565 | |
Shares underlying Anzu public warrants | |
| 14,166,666 | |
Shares underlying shortfall warrants | |
| 3,874,394 | |
Contingent shares** | |
| 1,000,000 | |
| * | The Series A Preferred holders have the right to convert their shares
into shares of New Envoy Class A Common Stock at any time based on the ratio determined by dividing the Original Issue Price of $10.00
by the Conversion Price of $11.50 pursuant to the Certificate of Designation. |
| ** | The combined pro forma net loss per share excludes the impact of 1,000,000
Contingent Sponsor Shares as the contingency has not been met. |
16
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|
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Entity Central Index Key |
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|
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|
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DE
|
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4875 White Bear Parkway
|
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White Bear Lake
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NASDAQ
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Envoy Medical (NASDAQ:COCH)
Graphique Historique de l'Action
De Août 2024 à Sept 2024
Envoy Medical (NASDAQ:COCH)
Graphique Historique de l'Action
De Sept 2023 à Sept 2024