AMENDMENT TO BUSINESS COMBINATION AGREEMENT
Exhibit 2.1
Execution Copy
AMENDMENT TO
BUSINESS COMBINATION AGREEMENT
This Amendment to the Business Combination Agreement (this “Amendment”) is made and entered into as of August 22, 2024, by and among Coliseum Acquisition Corp., a Cayman Islands exempted company (the “SPAC”), Rain Enhancement Technologies Holdco, Inc., a Massachusetts corporation (“Holdco”), Rainwater Merger Sub 1, Inc., a Cayman Islands exempted company and wholly-owned subsidiary of Holdco (“Merger Sub 1”), Rainwater Merger Sub 2A, Inc., a Massachusetts corporation and wholly-owned subsidiary of the SPAC (“Merger Sub 2A”), and Rain Enhancement Technologies, Inc., a Massachusetts corporation (the “Company”). Each of the SPAC, Holdco, Merger Sub 1, Merger Sub 2A, and the Company are herein referred to individually as a “Party” and, collectively, as the “Parties.” Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Business Combination Agreement.
RECITALS
WHEREAS, SPAC, the Company, Holdco, Merger Sub 1 and Rainwater Merger Sub 2, Inc., a Massachusetts corporation and wholly-owned subsidiary of Holdco (the “Old Merger Sub 2”), entered into that certain Business Combination Agreement, dated as of June 25, 2024 (the “Business Combination Agreement”);
WHEREAS, on August 22, 2024, the Parties entered into an Assignment and Assumption of Business Combination Agreement (the “Assignment”) pursuant to which Old Merger Sub 2 assigned to Merger Sub 2A all of Old Merger Sub 2’s right, title and interest in and to the Business Combination Agreement, and Merger Sub 2A assumed, and agreed to perform, satisfy and discharge in full, as the same become due, all of Old Merger Sub 2’s liabilities and obligations under the Business Combination Agreement arising on, from and after the date thereof;
WHEREAS, Section 8.8 of the Business Combination Agreement provides that the Business Combination Agreement may be amended or modified only by an instrument in writing mutually signed by each of the Parties; and
WHEREAS, the Parties desire to amend the Business Combination Agreement as set forth in this Amendment.
NOW, THEREFORE, the Parties, intending to be legally bound, agree as follows:
| 1. | Amendments to the Business Combination Agreement. |
| a. | Merger Sub 2A. To reflect the Assignment, the following amendments are made to the Business Combination Agreement: |
| i. | The preamble to the Business Combination Agreement is hereby amended by deleting “Rainwater Merger Sub 2, Inc., a Massachusetts corporation and wholly-owned subsidiary of Holdco” and replacing it with Rainwater Merger Sub 2A, Inc., a Massachusetts corporation and wholly-owned subsidiary of the SPAC”. |
| ii. | The first Recital to the Business Combination Agreement is hereby amended and restated in its entirety as follows: |
“WHEREAS, (a) the Company is engaged in, or intends to engage in, the research and development, manufacture, marketing, sale and other exploitation of products, services or solutions in the field of weather modification (including rainfall generation, snowfall generation, cloud coverage and fog reduction), (b) the SPAC is a special purpose acquisition company formed for the purpose of effecting a merger, share reconstruction or amalgamation, asset or share acquisition, exchangeable share transaction, reorganization, contractual control arrangement or similar type of transaction with one or more businesses (a “Business Combination”), (c) Holdco is a newly formed, wholly owned, direct subsidiary of the Company that was formed for the purpose of consummating the transactions contemplated by this Agreement and the Ancillary Agreements to which it is or will be a party, (d) Merger Sub 1 is a newly formed, wholly owned, direct subsidiary of Holdco that was formed for the purposes of consummating the transactions contemplated by this Agreement and the Ancillary Agreements to which it is or will be a party, and (e) Merger Sub 2A is a newly formed, wholly owned, direct subsidiary of the SPAC that was formed for the purposes of consummating the transactions contemplated by this Agreement and the Ancillary Agreements to which it is or will be a party;”
| iii. | The ninth Recital to the Business Combination Agreement is hereby amended and restated in its entirety as follows: |
“WHEREAS, Holdco, as the sole shareholder of Merger Sub 1, will as promptly as reasonably practicable (and in any event within one (1) Business Day) following the date of this Agreement, approve this Agreement, the Ancillary Agreements to which Merger Sub 1 is or will be a party, and the transactions contemplated hereby and thereby (including the Mergers);
WHEREAS, the SPAC, as the sole shareholder of Merger Sub 2A, will as promptly as reasonably practicable (and in any event within one (1) Business Day) following the date of this Agreement, approve this Agreement, the Ancillary Agreements to which Merger Sub 2A is or will be a party, and the transactions contemplated hereby and thereby (including the Mergers);”
| iv. | Articles III and IV are hereby amended by replacing all references to “the Merger Subs” with references to “Merger Sub 1”. |
| v. | Sections 3.19 and 3.21 are hereby amended by deleting all references to Merger Sub 2. |
| vi. | New Sections 4.1(c) and 4.1(d) are hereby added as follows: |
“(c) Merger Sub 2A is duly incorporated, validly existing and in good standing under the laws of the Commonwealth of Massachusetts. Merger Sub 2A has the requisite corporate power and authority to own, lease and operate its assets and properties and to carry on its business as it is now being conducted, except as would not reasonably be expected to prevent or materially delay or impair the consummation of the Transactions or the ability of Merger Sub 2A to perform its obligations under this Agreement or the Ancillary Agreements to which it is or will be a party. Merger Sub 2A is not in violation of any of the provisions of its Organizational Documents. Merger Sub 2A does not have any assets or properties of any kind other than those incident to its formation and this Agreement, and does not now conduct and has never conducted any business. Merger Sub 2A is an entity that was formed solely for the purpose of engaging in the Transactions. All outstanding shares of capital stock of Merger Sub 2A are owned by the SPAC, free and clear of all Liens (other than Permitted Liens).
(d) Merger Sub 2A has the requisite power and authority to: (i) execute, deliver and perform this Agreement and the Ancillary Agreements to which it is a party, and each ancillary document that it has executed or delivered or is to execute or deliver pursuant to this Agreement; and (ii) carry out its obligations hereunder and thereunder and to consummate the Transactions (including the Mergers). The execution and delivery by ▇▇▇▇▇▇ Sub 2A of this Agreement and the Ancillary Agreements to which it is a party, and the consummation by Merger Sub 2A of the Transactions (including the Mergers) have been duly and validly authorized by all necessary corporate action on the part of each of Merger Sub 2A, and no other proceedings on the part of Merger Sub 2A (or any of its equityholders) are necessary to authorize this Agreement or the Ancillary Agreements to which it is a party or to consummate the Transactions. This Agreement and the Ancillary Agreements to which it is a party have been duly and validly executed and delivered by Merger Sub 2A and, assuming the due authorization, execution and delivery thereof by the other Parties, constitute the legal and binding obligations of Merger Sub 2A, enforceable against Merger Sub 2A in accordance with their terms, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles governing the availability of equitable remedies.”
| vii. | Section 4.2(d) is hereby amended by adding “Except for SPAC’s ownership of all outstanding equity interests of Merger Sub 2A,” at the beginning of such section. |
| viii. | Section 8.6 is hereby amended by deleting “Merger Sub 2” from subparagraph (a) and adding “Merger Sub 2A” to subparagraph (b), such that all notices to Merger Sub 2A are sent c/o Coliseum Acquisition Corp. |
| b. | Pre-Closing Recapitalization. |
| i. | The following changes are made to the defined terms in Section 1.1 of the Business Combination Agreement: |
““Company Preferred Stock” means the Company’s preferred stock, par value $0.0001 per share.
“Exchange Ratio” means (a) $45,000,000 plus the amount of any Closing Offering with one or more bona fide third parties (which expressly excludes the Majority Stockholder, the Sponsors, the officers and directors of the Parties, and any of its or their Affiliates) which is structured as an investment directly into the Company and is consummated and funded prior to the effectiveness of the Registration Statement, divided by (b) the SPAC Public Share Redemption Price, divided by (c) the Fully-Diluted Company Capitalization.
“Fully-Diluted Company Capitalization” means as of any given date, the sum of (a) the shares of capital stock of the Company outstanding on such date, (b) the shares of capital stock of the Company subject to compensatory equity awards (including stock options and restricted stock units) outstanding on such date, with shares of capital stock of the Company subject to stock options calculated on a “net exercised” basis as of the applicable date using the treasury method, assuming shares of capital stock of the Company are surrendered having a fair market value on such date equal to the exercise price of such options (rounded up to the nearest whole share, and determined without regard to the vested status of the stock option) and (c) the shares of capital stock of the Company issuable upon the exercise or settlement of other equity securities with respect to which shares of capital stock of the Company have not actually been issued and the conversion of all convertible securities into shares of capital stock of the Company, in each case, counted on an as-converted basis.”
| ii. | The seventeenth Recital to the Business Combination Agreement is hereby amended and restated in its entirety as follows: |
“WHEREAS, prior to the consummation of the Closing, in order to facilitate the consummation of the transactions contemplated hereby (including the Mergers and the Dual Class Structure), the Company will be recapitalized such that, immediately prior to the Company Merger Effective Time, the Company’s authorized capital stock will consist of shares of Company Class A Common Stock, Company Class B Common Stock, and Company Preferred Stock (the “Pre-Closing Recapitalization”);”
| iii. | Section 2.1(a) of the Business Combination Agreement is hereby amended and restated in its entirety as follows: |
“Company Pre-Closing Recapitalization. Prior to the Company Merger Effective Time, the Company shall take all actions necessary to effect the Pre-Closing Recapitalization, including (i) authorizing two classes of common stock and designating one series of preferred stock, such that the capitalization of the Company will consist of Company Class A Common Stock, Company Class B Common Stock, and Company Preferred Stock, (ii) amending, restating, supplementing or otherwise modifying the Company Organizational Documents to reflect the Pre-Closing Recapitalization, (iii) exchanging all outstanding equity of the Company for shares of Company Class A Common Stock, Company Class B Common Stock, and/or Company Preferred Stock, and (iv) issuing shares of Company Class B Common Stock in consideration of the payment of additional capital, in each case as set forth on Schedule 2.1(a); provided, that the Company shall not take any action pursuant to this Section 2.1(a) that would have the effect of increasing the aggregate consideration to be paid to the Company Shareholders in connection with the Company Merger.”
| iv. | Section 2.4(b)(i) of the Business Combination Agreement is hereby amended and restated in its entirety as follows: |
“Immediately prior to the Company Merger Effective Time, (x) each share of Company Preferred Stock outstanding immediately prior to the Company Merger Effective Time shall be converted in accordance with its terms into shares of Company Class A Common Stock and (y) the Company shall use its commercially reasonable efforts to cause each convertible promissory note or other security that is convertible into or exchangeable for shares of Company Common Stock that is outstanding immediately prior to the Company Merger Effective Time to be converted into or exchanged for shares of Company Class A Common Stock pursuant to its terms immediately prior to the Company Merger Effective Time.”
| v. | A new Section 2.4(b)(v) of the Business Combination Agreement is hereby added: |
“As of the Company Merger Effective Time, each option to purchase shares of Company Class A Common Stock that is then outstanding (each, a “Company Option”) shall be converted into the right to receive an option to purchase Holdco Class A Common Stock on the same terms and conditions as are in effect with respect to such Company Option immediately prior to the Company Merger Effective Time (including with respect to vesting and termination-related provisions) (each, a “Holdco Option”), except that (A) such Holdco Option shall relate to such number of shares of Holdco Class A Common Stock (rounded down to the nearest whole share of Holdco Class A Common Stock) as is equal to (x) the number of shares of Company Class A Common Stock subject to such Company Option multiplied by (y) the Exchange Ratio, and (B) the exercise price per share of such Holdco Option shall be equal to the quotient of (x) the exercise price per share of such Company Option in effect immediately prior to the Company Merger Effective Time divided by (y) the Exchange Ratio (the exercise price per share, as so determined, being rounded up to the nearest full cent).”
| vi. | The term “Majority Shareholder” is hereby replaced throughout the Business Combination Agreement by the term “RET Founders”, which is defined as follows: |
““RET Founders” means ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇▇.”
| c. | SPAC Merger. Section 2.3(b)(vi) is hereby amended and restated in its entirety as follows: |
“At the SPAC Merger Effective Time, by virtue of the SPAC Merger and without any action on the part of any Party or any other Person, (A) each share of Merger Sub 1 that is issued and outstanding immediately prior to the SPAC Merger Effective Time shall be automatically cancelled and extinguished and converted into one (1) ordinary share, par value US $0.0001 per share of the First Surviving Company, with the rights, powers and privileges given to such share by the First Surviving Company Organizational Documents and the CACI, and shall constitute the only outstanding shares of the First Surviving Company immediately following the SPAC Merger Effective Time, and (B) each share of Holdco that is issued, outstanding and held by the Company immediately prior to the SPAC Merger Effective Time shall be automatically cancelled and extinguished, and no consideration shall be paid with respect thereto. Immediately following the SPAC Merger Effective Time, Holdco shall be the sole and exclusive owner of all shares of the First Surviving Company and the register of members of the First Surviving Company shall be updated at the SPAC Merger Effective Time to reflect the foregoing.”
| d. | Lock-Up Agreement. |
| i. | Section 5.22 of the Business Combination Agreement is hereby amended and restated in its entirety as follows: |
“Lock-Up Agreement. At the Closing, Holdco, the Sponsors, and the RET Founders will enter into the Lock-Up Agreement. Notwithstanding the foregoing, with a view to satisfy the condition set forth in Section 6.3(c), the Lock-Up Agreement will not apply to such number of shares of Holdco Common Stock held by the Previous Sponsor immediately following the SPAC Merger Effective Time as reasonably determined by the SPAC is necessary to meet the initial listing requirements of Nasdaq.”
| ii. | The form of Lock-Up Agreement set forth in Exhibit E to the Business Combination Agreement is hereby amended and restated in its entirety as set forth in Annex A attached hereto. |
| e. | Dual Class Structure. |
| i. | The sixteenth Recital to the Business Combination Agreement is hereby amended and restated in its entirety as follows: |
“WHEREAS, prior to the consummation of the Closing, and subject to the SPAC Shareholder Approval and Company Shareholder Approval, (a) Holdco shall adopt the amended and restated articles of organization substantially in the form attached hereto as Exhibit A (the “Holdco A&R Articles”), which shall be the articles of incorporation of Holdco until thereafter amended in accordance with its terms and the MBCA, and which will, among other things, implement a dual class stock structure wherein Holdco’s common stock will consist of Holdco Class A Common Stock, entitling the holders thereof to one vote per share on all matters on which the shares of Holdco Class A Common Stock are entitled to vote, and Holdco Class B Common Stock, which will have economic rights (including dividend and liquidation rights) identical to those of the Holdco Class A Common Stock but the holders thereof will be entitled to fifteen votes per share on all matters on which the shares of Holdco Class B Common Stock are entitled to vote, which structure will terminate on the date that is five years after the Closing Date, or earlier in certain circumstances as more fully set forth in the Holdco A&R Articles (the “Dual Class Structure”), and (b) Holdco shall adopt the amended and restated bylaws substantially in the form attached hereto as Exhibit B (the “Holdco A&R Bylaws”), which shall be the bylaws of Holdco, until thereafter supplemented or amended in accordance with its terms and the MBCA;”
| ii. | The form of Holdco A&R Articles set forth in Exhibit A to the Business Combination Agreement is hereby amended and restated in its entirety as set forth in Annex B attached hereto. |
| iii. | The following defined terms set forth in Section 1.1 of the Business Combination Agreement are hereby amended and restated in their entirety as follows: |
““Company Class B Common Stock” means the Company’s Class B common stock, par value $0.0001 per share, which as of immediately after the Pre-Closing Recapitalization will have fifteen (15) votes per share on all matters on which the Company Class B Common Stock will be entitled to vote.”
““Holdco Class B Common Stock” means Holdco’s Class B common stock, par value $0.0001 per share, which pursuant to the terms of the Holdco A&R Articles will have fifteen (15) votes per share on all matters on which the Holdco Class B Common Stock will be entitled to vote.”
| f. | Merger Sub 1 Tax Classification. Section 3.14 of the Business Combination Agreement is hereby amended by adding a new Section 3.14(p), as follows: |
“Merger Sub 1 has properly made an election pursuant to Treasury Regulations Section 301.7701-3 to be classified as an entity disregarded as separate from Holdco for U.S. federal (and applicable state and local) income Tax purposes.”
| 2. | Consent. To allow the Company to affect the Pre-Closing Recapitalization, pursuant to Section 5.1(b)(vi) of the Business Combination Agreement, SPAC hereby consents to (i) the recission of those certain Subscription Agreements dated June 20, 2024, between the Company and the subscribers named therein, (ii) the Company’s entry into each Subscription Agreement set forth in Schedule 2.1(a), and (iii) the Company’s issuance of Company Options to certain service providers as set forth in Schedule 2.1(a). |
| 3. | Ratification; No Further Amendment. Except as expressly provided in this Amendment, all of the terms and conditions of the Business Combination Agreement remain unchanged and continue in full force and effect and are hereby ratified and confirmed in all respects. |
| 4. | No Waiver. Except as specifically set forth herein, the execution of this Amendment shall not operate as a waiver of any right, power or remedy of the parties under the Business Combination Agreement nor shall it constitute a waiver of any provision of the Business Combination Agreement. |
| 5. | Effect of Amendment; Entire Agreement. This Amendment shall form a part of the Business Combination Agreement for all purposes, and each party to this Amendment and to the Business Combination Agreement shall be bound by this Amendment. Upon the effectiveness of this Amendment, each reference in the Business Combination Agreement to “this Agreement”, “hereunder”, or “herein” or words of similar import referring to the Business Combination Agreement shall refer to the Business Combination Agreement as amended by this Amendment. This Amendment, the Business Combination Agreement (as amended by this Amendment) and any other documents and instruments and agreements among the Parties as contemplated by or specifically referred to in the Business Combination Agreement (including the Exhibits and Schedules thereto) constitute the entire agreement among the Parties relating to the subject matter hereof and thereof and supersede any other agreements, whether written or oral, that may have been made or entered into by or among the Parties relating to the subject matter hereof and thereof. |
| 6. | Miscellaneous. The provisions of Sections 8.1 (Interpretation), 8.2 (Counterparts), 8.4 (Governing Law; Waiver of Jury Trial; Jurisdiction), 8.6 (Notices), 8.7 (Successors and Assigns), 8.8 (Amendments and Waivers), 8.9 (Specific Performance), 8.10 (Severability), and 8.11 (Trust Account Waiver) of the Business Combination Agreement shall apply to this Amendment mutatis mutandis. |
[Signature Pages Follow]
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each of the Parties as of the day first above written.
| RAIN ENHANCEMENT TECHNOLOGIES, INC. | ||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | President | |||
| RAIN ENHANCEMENT TECHNOLOGIES HOLDCO, INC. | ||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | President | |||
| RAINWATER MERGER SUB 1, INC. | ||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | President | |||
| RAINWATER MERGER SUB 2a, INC. | ||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇ | |||
| Title: | Chief Executive Officer | |||
| COLISEUM ACQUISITION CORP. | ||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇ | |||
| Title: | Chief Executive Officer | |||
[Signature Page to Amendment to Business Combination Agreement]
Annex A
Form of Lock-Up Agreement
Execution Copy
LOCK-UP AGREEMENT
This Lock-Up Agreement (this “Agreement”) is dated as of [●], 2024, by and among Rain Enhancement Technologies Holdco, Inc., a Massachusetts corporation (“Holdco”), the shareholders of Holdco listed on the signature pages hereto under the heading “Securityholders”, each officer and director of Holdco, the Company (as defined below) and SPAC (as defined below) and the other persons who enter into a joinder to this Agreement substantially in the form of Exhibit A hereto in order to become a “Securityholder” for purposes of this Agreement (collectively, the “Securityholders”, and each individually, a “Securityholder”). Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined below).
RECITALS
WHEREAS, the Securityholders own equity interests in Holdco pursuant to the terms of the Business Combination Agreement (as defined below);
WHEREAS, on the date hereof, Holdco consummated the transactions contemplated by that certain Business Combination Agreement (the “Business Combination Agreement”) dated as of June 25, 2024, as amended on August 22, 2024, entered into by and among Holdco, Rain Enhancement Technologies, Inc., a Massachusetts corporation (the “Company”), Coliseum Acquisition Corp., a Cayman Islands exempted company (the “SPAC”), Rainwater Merger Sub 1, Inc., a Cayman Islands exempted company and wholly-owned subsidiary of Holdco (“Merger Sub 1”), and Rainwater Merger Sub 2A, Inc., a Massachusetts corporation and wholly-owned subsidiary of Coliseum (“Merger Sub 2”), pursuant to which, among other things, on the day immediately prior to the Closing Date, SPAC merged with and into the Merger Sub 1, with Merger Sub 1 surviving such merger, and on the Closing Date, following such merger and as a part of the same overall transaction, Merger Sub 2 merged with and into the Company, with the Company surviving such merger (the “Business Combination”); and
WHEREAS, in connection with the Business Combination, the parties hereto wish to set forth herein certain understandings between such parties with respect to restrictions on the transfer of certain equity interests in Holdco acquired pursuant to the terms of the Business Combination Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Subject to the exceptions set forth in Section 3, each Securityholder shall not, without the prior written consent of the board of directors of the Company, (a) Transfer any Lock-up Shares until the end of the Shares Lock-up Period and (b) Transfer any Lock-up Warrants until the end of the Warrants Lock-up Period.
2. As used herein:
| (a) | the term “Transfer” means (i) sell, offer to sell, contract or agree to sell, assign, transfer (including by operation of law), hypothecate, pledge, distribute, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, file (or participate in the filing of) a registration statement with the SEC (other than the Registration Statement) or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any Lock-up Securities, (ii) deposit any Lock-up Securities into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect thereto that is inconsistent with this Agreement, or (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Lock-up Securities, or (iv) publicly announce any intention to effect any transaction specified in clauses (i) through (iii); |
| (b) | the term “Lock-up Shares” means any shares of Holdco Class A common stock, par value $0.0001 per share, or Holdco Class B common stock, par value $0.0001 per share (the “Common Stock”), held by a Securityholder immediately after the Closing, and any shares of Common Stock issuable upon the settlement or exercise of options, warrants, restricted stock units, equity awards, or any other securities convertible into or exercisable or exchangeable for Common Stock held by a Securityholder immediately after the Closing, other than the shares of Common Stock underlying the Lock-up Warrants; provided that the term “Lock-up Shares” will not apply to such number of shares of Common Stock held by the Previous Sponsor immediately following the SPAC Merger Effective Time as reasonably determined by the SPAC is necessary to meet the initial listing requirements of Nasdaq; |
| (c) | the term “Lock-up Warrants” means the SPAC Private Placement Warrants assumed by Holdco pursuant to the Warrant Assumption Agreement at the SPAC Merger Effective Time, and any shares of Common Stock received upon exercise of such warrants; |
| (d) | the term “Lock-up Securities” means the Lock-up Shares and Lock-up Warrants; |
| (e) | the term “Shares Lock-up Period” means the period beginning on the Closing Date and ending on the earlier of (x) two (2) years after the Closing Date and (y) the date on which Holdco completes a liquidation, merger, capital stock exchange, reorganization or other similar transaction that results in all of Holdco’s stockholders having the right to exchange their shares of Common Stock for cash, securities or other property; and |
| (f) | the term “Warrants Lock-up Period” means the period beginning on the Closing Date and ending on the earlier of (x) 30 days after the Closing Date and (y) the date on which Holdco completes a liquidation, merger, capital stock exchange, reorganization or other similar transaction that results in all of Holdco’s stockholders having the right to exchange their shares of Common Stock for cash, securities or other property. |
3. The restrictions set forth in Section 1 shall not apply to:
| (a) | a Transfer to Holdco’s directors or officers, any affiliates or family members of Holdco’s directors or officers, a Securityholder, any members of a Securityholder or any affiliate of a Securityholder; |
| (b) | in the case of an individual, a Transfer by gift to a member of the individual’s immediate family (as defined below), or to a trust, the beneficiary of which is the individual or a member of the individual’s immediate family or an affiliate of such person, or to a charitable organization; |
| (c) | in the case of an individual, Transfers by virtue of laws of descent and distribution upon death of the individual; |
| (d) | in the case of an individual, Transfers by operation of law or pursuant to a court order, such as a qualified domestic relations order, divorce decree or separation agreement; |
| (e) | in the case of an individual, Transfers to a partnership, limited liability company or other entity of which the undersigned and/or the immediate family (as defined below) of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests; |
| (f) | in the case of an entity that is a trust, Transfers to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust; |
| (g) | in the case of an entity, Transfers by virtue of the laws of the state of the entity’s organization and the entity’s organizational documents upon dissolution of the entity; |
| (h) | Transfers relating to Common Stock or other securities convertible into or exercisable or exchangeable for Common Stock acquired in open market transactions after the Closing, provided that no such transaction is required to be, or is, publicly announced (whether on Form 4, Form 5 or otherwise, other than a required filing on Schedule 13F, 13G or 13G/A) during the Lock-Up Period; |
| (i) | the exercise of stock options or warrants to purchase shares of Common Stock or the vesting of stock awards of Common Stock and any related transfer of shares of Common Stock to the Company in connection therewith (x) deemed to occur upon the “cashless” or “net” exercise of such options or warrants or (y) for the purpose of paying the exercise price of such options or warrants or for paying taxes due as a result of the exercise of such options or warrants, the vesting of such options, warrants or stock awards, or as a result of the vesting of such shares of Common Stock, it being understood that all shares of Common Stock received upon such exercise, vesting or transfer will remain subject to the restrictions of this Agreement during the Lock-Up Period; |
| (j) | Transfers to the Company pursuant to any contractual arrangement in effect at the Closing that provides for the repurchase by the Company or forfeiture of Common Stock or other securities convertible into or exercisable or exchangeable for Common Stock in connection with the termination of the Securityholder’s service to the Company; |
| (k) | the entry, by the Securityholder, at any time after the Closing, of any trading plan providing for the sale of shares of Common Stock by the Securityholder, which trading plan meets the requirements of Rule 10b5-l(c) under the Exchange Act, provided, however, that such plan does not provide for, or permit, the sale of any shares of Common Stock during the Lock-Up Period and no public announcement or filing is voluntarily made or required regarding such plan during the Lock-Up Period; and |
| (l) | Transfers in the event of completion of a liquidation, merger, stock exchange or other similar transaction which results in all of the Company’s securityholders having the right to exchange their shares of Common Stock for cash, securities or other property. |
provided, however, that (A) in the case of clauses (a) through (g), these permitted transferees must enter into a written agreement, in substantially the form of this Agreement (it being understood that any references to “immediate family” in the agreement executed by such transferee shall expressly refer only to the immediate family of the Securityholder and not to the immediate family of the transferee), agreeing to be bound by these Transfer restrictions. For purposes of this Section 3, “immediate family” shall mean a spouse, domestic partner, child (including by adoption), father, mother, brother or sister of the undersigned, and lineal descendant (including by adoption) of the undersigned or of any of the foregoing persons; and “affiliate” shall have the meaning set forth in Rule 405 under the Securities Act of 1933, as amended.
4. For the avoidance of doubt, each Securityholder shall retain all of its rights as a stockholder of Holdco with respect to the Lock-up Securities during the Lock-Up Period, including the right to vote any Lock-up Securities that are entitled to vote.
5. In furtherance of the foregoing, Holdco, and any duly appointed transfer agent for the registration or transfer of the securities described therein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Agreement, and such purported Transfer shall be null and void ab initio. In addition, during the Shares Lock-Up Period and Warrants Lock-up Period, each certificate or book-entry position evidencing the Lock-Up Securities shall be marked with a legend in substantially the following form, in addition to any other applicable legends:
“THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A LOCK-UP AGREEMENT BY AND AMONG THE ISSUER AND THE REGISTERED HOLDER OF THE SECURITIES (OR THE PREDECESSOR IN INTEREST TO THE SECURITIES). A COPY OF SUCH LOCK-UP AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
6. Following the Closing Date, the Company and ▇▇▇▇▇▇ will indemnify, exonerate and hold harmless each Sponsor, and their respective shareholders, members, directors, managers and officers, from and against any and all actions, causes of action, suits, claims, liabilities, losses, damages and costs and out-of-pocket expenses in connection therewith (including reasonable attorneys’ fees and expenses) (“Indemnified Liabilities”) incurred by such Sponsor arising out of any third-party action, cause of action, suit, litigation, investigation, inquiry, arbitration or claim relating to the transactions contemplated by the Business Combination Agreement that names the Sponsor as a defendant (or co-defendant) arising from the Sponsor’s ownership of equity interests of the SPAC or its alleged, purported or actual control or ability to influence the SPAC; provided, that the foregoing shall not apply to (i) any Indemnified Liabilities to the extent arising out of any breach by the Sponsor or its shareholders, members, directors, managers and officers of this Agreement or any other agreement between the Sponsor or its shareholders, members, directors, managers and officers, on the one hand, and the Company, Holdco or the SPAC or any of their respective subsidiaries, on the other hand or (ii) the willful misconduct, gross negligence or fraud of the Sponsor or its shareholders, members, directors. managers and officers. The provisions of this Section 6 are (x) intended to be for the benefit of, and will be enforceable by, each Sponsor and each Sponsor’s heirs, legatees, representatives, successors and assigns, and shall be binding on all successors and assigns of Holdco and may not be terminated or amended in any manner adverse to such Sponsor without its prior written consent and (y) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Sponsor may have by contract or otherwise.
7. Holdco represents that it has not entered into any side letter or agreement with any Securityholder which provides any rights or benefits to such Securityholder that are materially more favorable to such Securityholder than the rights and benefits in this Agreement and will not enter into any such side letter or agreement unless such rights and benefits are also offered to the other Securityholders. Holdco agrees that this Agreement shall not be amended or modified, and no terms or conditions thereof waived, in a manner that benefits any Securityholder, unless the tems of such amendment, modification or waiver is also offered to the other Securityholders.
8. This Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby provided, that, for the avoidance of doubt, the foregoing shall not affect the rights and obligations of the parties under the Business Combination Agreement or any documents related thereto or referred to therein. This Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by the undersigned (i) Securityholder and (ii) Holdco.
9. No party hereto may assign either this Agreement or any of its rights, interests or obligations hereunder without the prior written consent of the other party. Any purported assignment in violation of this Section 9 shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Agreement shall be binding on the Securityholder and each of its respective successors, heirs and assigns and permitted transferees.
10. The Law of the Commonwealth of Massachusetts shall govern (a) all claims or matters related to or arising from this Agreement (including any tort or non-contractual claims) and (b) any questions concerning the construction, interpretation, validity and enforceability of this Agreement, and the performance of the obligations imposed by this Agreement, in each case without giving effect to any choice of law or conflict of law rules or provisions (whether of the Commonwealth of Massachusetts or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the Commonwealth of Massachusetts.
11. Each party hereto submits to the exclusive jurisdiction of first, the Business Litigation Session of the Superior Court of the Commonwealth of Massachusetts or if such court declines jurisdiction, then to any court of the Commonwealth of Massachusetts or the Federal District Court for the District of Massachusetts, in any Proceeding arising out of or relating to this Agreement, agrees that all claims in respect of the Proceeding shall be heard and determined in any such court and agrees not to bring any Proceeding arising out of or relating to this Agreement in any other courts. Nothing in this Section 11, however, shall affect the right of any party to serve legal process in any other manner permitted by Law or at equity. Each party hereto agrees that a final judgment in any Proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by Law or at equity. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT, THE TRANSACTIONS OR THE RELATIONSHIPS ESTABLISHED AMONG THE PARTIES UNDER THIS AGREEMENT. EACH PARTY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
12. 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 without the necessity of proving the inadequacy of money damages as a remedy and without bond or other security being required, this being in addition to any other remedy to which they are entitled at law or in equity. Each of the parties hereto hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief. It is accordingly agreed that the parties hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Business Litigation Session of the Superior Court or any other state or federal court within the Commonwealth of Massachusetts, this being in addition to any other remedy to which such party is entitled at law or in equity. Each party hereto hereby further agrees that in the event of any action by any other party for specific performance or injunctive relief, it will not assert that a remedy at law or other remedy would be adequate or that specific performance or injunctive relief in respect of such breach or violation should not be available on the grounds that money damages are adequate or any other grounds.
13. This Agreement shall terminate on the expiration of the Shares Lock-up Period, except for the covenant in Section 6, which shall survive termination of this Agreement.
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In Witness Whereof, each of the parties has duly executed this Lock-Up Agreement as of the Effective Date.
| Holdco: | ||
| RAIN ENHANCEMENT TECHNOLOGIES HOLDCO, INC. | ||
| Name: | ||
| Title: |
[Signature Page to the Lock-Up Agreement]
In Witness Whereof, each of the parties has duly executed this Lock-Up Agreement as of the Effective Date.
| Securityholders: | ||
| [●] | ||
| Name: | ||
| Title: |
[Signature Page to the Lock-Up Agreement]
Annex B
Form of Holdco A&R Articles
AMENDED AND RESTATED
ARTICLES OF ORGANIZATION
OF
Rain Enhancement Technologies HOLDO, Inc.
(General Laws Chapter 156D, Section 10.07; 950 CMR 113.35)
Article I - Corporate Name
The exact name of the Corporation is Rain Enhancement Technologies Holdco, Inc. (the “Corporation”).
Article II - Purpose
The purpose for which the Corporation is formed is for the transaction of any and all lawful business for which a business Corporation may engage in under the Massachusetts Business Corporation Act (M.G.L. Ch. 156D, Sec. 101 et seq., as amended and in effect from time to time, the “MBCA”).
Article III - Authorized Shares
The following is the total number of shares and par value of each class of stock that the Corporation is authorized to issue. The number of authorized shares of any class or classes of stock may be increased or decreased (but not below the number of shares thereof then outstanding or reserved for issuance in each class) by the affirmative vote of the holders of at least a majority of the voting power of the issued and outstanding shares of capital stock entitled to vote thereon, voting together as a single class.
| WITHOUT PAR VALUE | WITH PAR VALUE | |||
| TYPE | NUMBER OF SHARES |
TYPE | NUMBER OF SHARES |
PAR VALUE |
| Class A Common | [10,000,000] | 0.0001 | ||
| Class B Common | [4,125,000] | 0.0001 | ||
| [Preferred] | [5,000,000] | 0.0001 | ||
Article IV - Preferences, Limitations and Rights of Any Class or Series
| A. | Common Stock |
1. Voting in General. Unless and until the Corporation has issued shares of Preferred Stock having the right to vote in the election of Directors of the Corporation and other matters requiring action by the Corporation’s shareholders, or as otherwise provided in these Amended and Restated Articles of Organization (as amended and/or restated from time to time, these “Articles”) or required by applicable law, the holders of shares of Class A Common Stock and Class B Common Stock (the Class A Common Stock and the Class B Common Stock referred to herein as the “Common Stock”) shall at all times vote together as one class on all matters (including the election of directors) submitted to a vote or for the consent of the shareholders of the Corporation. There shall be no cumulative voting.
2. Class A Common Stock Voting. Except as otherwise provided in these Articles or required by applicable law, each holder of shares of Class A Common Stock shall be entitled to one (1) vote for each share of Class A Common Stock held of record by such holder as of the applicable date on any matter that is submitted to a vote or for the consent of the shareholders of the Corporation.
3. Class B Common Stock Voting. Except as otherwise provided in these Articles or required by applicable law, each holder of shares of Class B Common Stock shall be entitled to fifteen (15) votes for each share of Class B Common Stock held of record by such holder as of the applicable date on any matter that is submitted to a vote or for the consent of the shareholders of the Corporation.
4. Equal Status. Except as otherwise provided in these Articles or required by applicable law, and subject to the preferences applicable to any series of Preferred Stock, if any, outstanding at any time, the holders of Class A Common Stock and the holders of Class B Common Stock shall have the same rights, privileges and powers, rank equally, shall be entitled to share equally, on a per share basis, in such dividends and other distributions of cash, property or shares of stock of the Corporation as may be declared by the Board of Directors from time to time with respect to the Common Stock out of assets or funds of the Corporation legally available therefor, and shall be identical in all respects as to all matters; provided, however, that in the event that any dividend or distribution is paid in the form of shares of Common Stock or rights to acquire Common Stock, the holders of Class A Common Stock shall receive Class A Common Stock or rights to acquire Class A Common Stock, as the case may be, and the holders of Class B Common Stock shall receive Class B Common Stock or rights to acquire Class B Common Stock, as the case may be.
5. Liquidation, Dissolution or Winding Up. Upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holders of shares of Class A Common Stock and Class B Common Stock shall be entitled to share equally, on a per share basis, in the net assets of the Corporation, after the Corporation shall have satisfied or made provision for the satisfaction of its debts and obligations and for the payment to holders of shares of any class or series of capital stock of the Corporation having preferential rights to receive distributions of the Corporation’s net assets.
6. Subdivisions Combinations or Reclassifications. Shares of Class A Common Stock or Class B Common Stock may not be subdivided, combined or reclassified unless the shares of the other class are concurrently therewith proportionately subdivided, combined or reclassified in a manner that maintains the same proportionate equity ownership between the holders of the outstanding Class A Common Stock and Class B Common Stock on the record date for such subdivision, combination or reclassification; provided, however, that shares of one such class may be subdivided, combined or reclassified in a different or disproportionate manner if such subdivision, combination or reclassification is approved in advance by the affirmative vote (or written consent if action by written consent of shareholders is permitted at such time under these Articles) of the holders of a majority of the outstanding shares of Class A Common Stock and Class B Common Stock, each voting separately as a class.
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7. Merger or Consolidation. In the case of any distribution or payment in respect of the shares of Class A Common Stock or Class B Common Stock upon the consolidation or merger of the Corporation with or into any other entity, or in the case of any other transaction having an effect on shareholders substantially similar to that resulting from a consolidation or merger, such distribution or payment that the holders of shares of Class A Common Stock or Class B Common Stock have the right to receive, or the right to elect to receive, shall be made ratably on a per share basis among the holders of the Class A Common Stock and Class B Common Stock as a single class; provided, however, that shares of one such class may receive, or have the right to elect to receive, different or disproportionate distributions or payments in connection with such merger, consolidation or other transaction if (i) the only difference in the per share distribution to the holders of the Class A Common Stock and Class B Common Stock is that any securities distributed to the holder of a share Class B Common Stock have fifteen times the voting power of any securities distributed to the holder of a share of Class A Common Stock, or (ii) such merger, consolidation or other transaction is approved by the affirmative vote (or written consent if action by written consent of shareholders is permitted at such time under these Articles) of the holders of a majority of the outstanding shares of Class A Common Stock and Class B Common Stock, each voting separately as a class.
8. Third-Party Tender or Exchange Offers. The Corporation may not enter into any agreement pursuant to which a third party may by tender or exchange offer acquire any shares of Class A Common Stock or Class B Common Stock unless the holders of (a) the Class A Common Stock shall have the right to receive, or the right to elect to receive, the same form of consideration and the same amount of consideration on a per share basis as the holders of the Class B Common Stock would receive, or have the right to elect to receive, and (b) the Class B Common Stock shall have the right to receive, or the right to elect to receive, the same form of consideration and the same amount of consideration on a per share basis as the holders of the Class A Common Stock would receive, or have the right to elect to receive; provided, however, that shares of such classes may receive, or have the right to elect to receive, different or disproportionate consideration in connection with such tender or exchange offer in order to reflect the special rights, powers and privileges of the holders of shares of the Class B Common Stock under these Articles (which may include, without limitation, securities exchangeable for each share of Class B Common Stock having up to fifteen (15) times the voting power of any securities exchangeable for each share of Class A Common Stock) or such other rights, powers, privileges or other terms that are no more favorable, in the aggregate, to the holders of the Class B Common Stock relative to the holders of the Class A Common Stock than those contained in these Articles.
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9. Conversion of Class B Common Stock.
(A) Voluntary Conversion. Each share of Class B Common Stock shall be convertible into one (1) fully paid and nonassessable share of Class A Common Stock at the option of the holder thereof at any time upon written notice to the Corporation (a “Voluntary Conversion”). Before any holder of Class B Common Stock shall be entitled to voluntarily convert any shares of such Class B Common Stock, such holder shall surrender the certificate or certificates therefor (if any), duly endorsed, at the principal corporate office of the Corporation or of any transfer agent for the Class B Common Stock, and shall give written notice to the Corporation at its principal corporate office, of the election to convert the same and shall state therein the name or names (i) in which the certificate or certificates representing the shares of Class A Common Stock into which the shares of Class B Common Stock are so converted are to be issued if such shares are certificated or (ii) in which such shares are to be registered in book entry if such shares are uncertificated. The Corporation shall, as soon as practicable thereafter, issue and deliver at such office to such holder of Class B Common Stock, or to the nominee or nominees of such holder, a certificate or certificates representing the number of shares of Class A Common Stock to which such holder shall be entitled as aforesaid (if such shares are certificated) or, if such shares are uncertificated, register such shares in book-entry form. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such surrender of the shares of Class B Common Stock to be converted following or contemporaneously with the written notice of such holder’s election to convert required by this Section 9(A) of Article IV, and the person or persons entitled to receive the shares of Class A Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Class A Common Stock as of such date. Each share of Class B Common Stock that is converted pursuant to this Section 9(A) of Article IV shall be retired by the Corporation and shall not be available for reissuance. Notwithstanding anything to the contrary herein, shares of Class B Common Stock represented by a lost, stolen or destroyed stock certificate may be converted pursuant to this Section 9(A) of Article IV if the holder thereof notifies the Corporation or its transfer agent that such certificate has been lost, stolen or destroyed and delivers an affidavit of that fact acceptable to the Corporation and agrees to indemnify the Corporation from any loss incurred by it in connection with such lost, stolen or destroyed certificate.
(B) Automatic Conversion. Each share of Class B Common Stock shall automatically, without further action by the Corporation or the holder thereof, be converted into one (1) fully paid and nonassessable share of Class A Common Stock immediately prior to the close of business on the earlier of (i) five (5) years from the closing of the Initial Public Offering Closing (as defined below), (ii) the first date on which the Founders or their Permitted Transferees collectively beneficially own 20% or less of the number of shares of Class B Common Stock (as such number of shares is equitably adjusted in respect of any reclassification, stock dividend, subdivision, combination or recapitalization of the Class B Common Stock) collectively held by the Founders or their Permitted Transferees as of the Initial Public Offering Closing, (iii) upon the occurrence of a Transfer (as defined below), other than a Permitted Transfer (as defined below), of such share of Class B Common Stock, or (iv) the date specified by the affirmative vote of the holders of Class B Common Stock representing not less than two-thirds (2/3) of the voting power of the outstanding shares of Class B Common Stock, voting separately as a single class (each of the events referred to in (i) through (iv) are referred to herein as an “Automatic Conversion”). The Corporation shall provide notice of the Automatic Conversion of shares of Class B Common Stock pursuant to this Section 9(B) of Article IV to record holders of such shares of Class B Common Stock as soon as practicable following the Automatic Conversion. Such notice shall be provided by any means then permitted by the MBCA; provided, however, that no failure to give such notice nor any defect therein shall affect the validity of the Automatic Conversion. Upon and after the Automatic Conversion, the person registered on the Corporation’s books as the record holder of the shares of Class B Common Stock so converted immediately prior to the Automatic Conversion shall be registered on the Corporation’s books as the record holder of the shares of Class A Common Stock issued upon Automatic Conversion of such shares of Class B Common Stock, without further action on the part of the record holder thereof. Immediately upon the effectiveness of the Automatic Conversion, the rights of the holders of shares of Class B Common Stock as such shall cease, and the holders shall be treated for all purposes as having become the record holder or holders of such shares of Class A Common Stock into which such shares of Class B Common Stock were converted.
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(C) Certificates. Each outstanding stock certificate (if shares are in certificated form) that, immediately prior to the occurrence of an Automatic Conversion, represented one or more shares of Class B Common Stock subject to such Automatic Conversion shall, upon such Automatic Conversion, be deemed to represent an equal number of shares of Class A Common Stock, without the need for surrender or exchange thereof. The Corporation shall, upon the request of any holder whose shares of Class B Common Stock have been converted into shares of Class A Common Stock as a result of a Voluntary Conversion or an Automatic Conversion (either of the foregoing, a “Conversion Event”) and upon surrender by such holder to the Corporation of the outstanding certificate(s) formerly representing such holder’s shares of Class B Common Stock, if any (or, in the case of any lost, stolen or destroyed certificate, upon such holder providing an affidavit of that fact acceptable to the Corporation and executing an agreement acceptable to the Corporation to indemnify the Corporation from any loss incurred by it in connection with such certificate), issue and deliver to such holder certificate(s) representing the shares of Class A Common Stock into which such holder’s shares of Class B Common Stock were converted as a result of such Conversion Event (if such shares are certificated) or, if such shares are uncertificated, register such shares in book-entry form. Each share of Class B Common Stock that is converted pursuant to a Conversion Event shall thereupon automatically be retired and shall not be available for reissuance.
(D) Effect of Conversion on Payment of Dividends. Notwithstanding anything to the contrary in this Section 9 of Article IV, if the date on which any share of Class B Common Stock is converted into Class A Common Stock pursuant to the provisions of this Section 9 of Article IV occurs after the record date for the determination of the holders of Class B Common Stock entitled to receive any dividend or distribution to be paid on the shares of Class B Common Stock, the holder of such shares of Class B Common Stock as of such record date will be entitled to receive such dividend or distribution on such payment date; provided, that, notwithstanding any other provision of these Articles, to the extent that any such dividend or distribution is payable in shares of Class B Common Stock, such dividend or distribution shall be deemed to have been declared, and shall be payable in, shares of Class A Common Stock and no shares of Class B Common Stock shall be issued in payment thereof.
(E) Policies and Procedures. The Corporation may, from time to time, establish such policies and procedures, not in violation of applicable law or the other provisions of these Articles, relating to the conversion of the Class B Common Stock into Class A Common Stock, as it may deem necessary or advisable in connection therewith. If the Board of Directors has determined that a Transfer or other Conversion Event giving rise to a conversion of shares of Class B Common Stock into Class A Common Stock has occurred but has not theretofore been reflected on the books of the Corporation or as maintained by the transfer agent of the Corporation, the Corporation may request that the holder of such shares furnish affidavits or other evidence to the Corporation as the Corporation deems necessary to determine whether a conversion of shares of Class B Common Stock to Class A Common Stock has occurred, and if such holder does not within ten (10) days after the date of such request furnish sufficient evidence to the Corporation (in the manner provided in the request) to enable the Corporation to determine that no such conversion has occurred, any such shares of Class B Common Stock, to the extent not previously converted and to the extent that the Board of Directors has determined that a Transfer or Conversion Event has occurred, shall be automatically converted into shares of Class A Common Stock and the same shall thereupon be registered on the books and records of the Corporation or as maintained by the transfer agent of the Corporation. In connection with any action of shareholders taken at a meeting or by written consent (if action by written consent of shareholders is permitted at such time under these Articles), the stock ledger of the Corporation or the records maintained by the transfer agent of the Corporation shall be presumptive evidence as to who are the shareholders entitled to vote in person or by proxy at any meeting of shareholders or in connection with any such written consent and the class or classes or series of shares held by each such shareholder and the number of shares of each class or classes or series held by such shareholder.
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(F) Definitions. For the purpose of this Section 9 of Article IV the following definitions shall apply:
(i) “Family Member” shall mean, with respect to any natural person who is a Qualified Shareholder, (a) the spouse of such Qualified Shareholder or (b) the parents, grandparents, lineal descendants, siblings, or lineal descendants of siblings of the Qualified Shareholder or of the Qualified Shareholder’s spouse, whether by birth or adoption.
(ii) “Founders” shall mean ▇▇▇▇▇ ▇. You, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ and each of their respective Permitted Entities.
(iii) “Initial Public Offering” shall mean an initial public offering of the Corporation’s equity securities, whether by the registration of the shares of the Corporation on a public stock exchange, or the merger, share reconstruction or amalgamation, asset or share acquisition, exchangeable share transaction, reorganization, contractual control arrangement or similar type of transaction with a special purpose acquisition company formed for such purpose.
(iv) “Permitted Entity” shall mean with respect to a Qualified Shareholder: (a) a Permitted Trust solely for the benefit of (1) such Qualified Shareholder, (2) one or more Family Members of such Qualified Shareholder, or (3) any other Permitted Entity of such Qualified Shareholder; or (b) any general partnership, limited partnership, limited liability company, corporation or other entity exclusively owned by (1) such Qualified Shareholder, (2) one or more Family Members of such Qualified Shareholder, or (3) any other Permitted Entity of such Qualified Shareholder; or (c) any foundation or similar entity or any Qualified Charity for so long as such Qualified Shareholder continues to, directly or indirectly, exercise voting control over any shares of Class B Common Stock held by such entity.
(v) “Permitted Transfer” shall mean, and be restricted to, any Transfer of a share of Class B Common Stock (a) by a Qualified Shareholder to (1) any Permitted Entity of such Qualified Shareholder, (2) to such Qualified Shareholder’s revocable living trust, which revocable living trust is itself both a Permitted Trust and a Qualified Shareholder, or (3) to a Family Member of such Qualified Shareholder; (b) by a Permitted Entity of a Qualified Shareholder to any other Permitted Entity of such Qualified Shareholder or to a Family Member of such Qualified Shareholder; or (c) any Transfer approved in advance by the Board of Directors, or a duly authorized committee of the Board of Directors, upon a determination that such Transfer is not inconsistent with the purposes of the foregoing provisions of this definition of “Permitted Transfer”.
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(vi) “Permitted Transferee” shall mean a transferee of shares of Class B Common Stock received in a Permitted Transfer.
(vii) “Permitted Trust” shall mean a bona fide trust where each trustee is a Qualified Shareholder.
(viii) “Qualified Charity” shall mean a domestic U.S. charitable organization, contributions to which are deductible for federal income, estate, gift and generation skipping transfer tax purposes.
(ix) “Qualified Shareholder” shall mean: (a) the Founders; (b) the record holder of a share of Class B Common Stock as of the date of an Initial Public Offering; (c) the initial registered holder of any shares of Class B Common Stock that are originally issued by the Corporation after the date of an Initial Public Offering pursuant to the exercise or conversion of any Option or Convertible Security that, in each case, was outstanding as of the date of an Initial Public Offering; and (d) a Permitted Transferee.
(x) “Transfer” of a share of Class B Common Stock shall mean any sale, assignment, transfer, conveyance, hypothecation or other transfer or disposition of such share or any legal or beneficial interest in such share, whether or not for value and whether voluntary or involuntary or by operation of law, including, without limitation, a transfer of a share of Class B Common Stock to a broker or other nominee (regardless of whether there is a corresponding change in beneficial ownership), the distribution of a share of Class B Common Stock to the partners, shareholders, members or other equity owners of the holder, or the transfer of, or entering into a binding agreement with respect to, Voting Control over such share by proxy or otherwise; provided, however, that the following shall not be considered a “Transfer” within the meaning of this Section 9 of Article IV:
(a) the granting of a revocable proxy to officers or directors of the Corporation at the request of the Board of Directors in connection with actions to be taken at an annual or special meeting of shareholders;
(b) entering into a voting trust, agreement or arrangement (with or without granting a proxy) solely with shareholders who are holders of Class B Common Stock that (1) is disclosed either in a Schedule 13D filed with the Securities and Exchange Commission or in writing to the Secretary of the Corporation, (2) either has a term not exceeding one (1) year or is terminable by the holder of the shares subject thereto at any time and (3) does not involve any payment of cash, securities, property or other consideration to the holder of the shares subject thereto other than the mutual promise to vote shares in a designated manner;
(c) entering into a voting trust, agreement or arrangement (with or without granting a proxy) pursuant to a written agreement to which the Corporation is a party;
(d) in connection with a merger or consolidation of the Corporation with or into any other entity or in the case of any other transaction having an effect on shareholders substantially similar to that resulting from a merger or consolidation in each case that has been approved by the Board of Directors, the entering into a support, voting, tender or similar agreement or arrangement (in each case, with or without the grant of a proxy) that has also been approved by the Board of Directors;
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(e) the pledge of shares of Class B Common Stock by a shareholder that creates a mere security interest in such shares pursuant to a bona fide loan or indebtedness transaction for so long as such shareholder continues to exercise Voting Control over such pledged shares; provided, however, that a foreclosure on such shares or a similar action by the pledgee shall constitute a Transfer unless such foreclosure or similar action qualifies as a Permitted Transfer at such time;
(f) transferring to an Individual Retirement Account, as defined in Section 408(a) of the Internal Revenue Code, or a pension, profit sharing, stock bonus or other type of plan or trust of which such Qualified Shareholder is a participant or beneficiary and which satisfies the requirements for qualification under Section 401 of the Internal Revenue Code; provided that in each case such Qualified Shareholder has sole dispositive power and exclusive Voting Control with respect to the shares of Class B Common Stock held in such account, plan or trust, and provided, further, that in the event the Qualified Shareholder no longer has sole dispositive power and exclusive Voting Control with respect to the shares of Class B Common Stock held by such account, plan or trust, each such share of Class B Common Stock convert into one (1) fully paid and nonassessable share of Class A Common Stock;
(g) transferring to a corporation, partnership, or limited liability company in which such Qualified Shareholder directly or indirectly through one or more Permitted Entities owns shares, partnership interests, or membership interests, as applicable, with sufficient Voting Control such that the Qualified Shareholder retains sole dispositive power and exclusive Voting Control with respect to the shares of Class B Common Stock held by such corporation, partnership, or limited liability company; provided that in the event the Qualified Shareholder no longer owns sufficient shares, partnership interests, or membership interests or no longer has sufficient legally enforceable rights to ensure the Qualified Shareholder to retain sole dispositive power and exclusive Voting Control with respect to the shares of Class B Common Stock held by such corporation, partnership, or limited liability company, each such share of Class B Common Stock then held by such corporation, partnership, or limited liability company shall automatically convert into one (1) fully paid and nonassessable share of Class A Common Stock;
(h) entering into a trading plan pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934, as amended, with a broker or other nominee; provided, however, that a sale of such shares of Class B Common Stock pursuant to such plan shall constitute a “Transfer” at the time of such sale.
(xi) “Voting Control” shall mean, with respect to a share of Class B Common Stock the power (whether exclusive or shared) to vote or direct the voting of such share by proxy, voting agreement or otherwise.
10. Reservation of Stock. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Class A Common Stock, solely for the purpose of effecting the conversion of the shares of Class B Common Stock, such number of shares of Class A Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of Class B Common Stock into shares of Class A Common Stock.
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11. Protective Provision. The Corporation shall not, whether by merger, consolidation or otherwise, (i) amend, alter, repeal or waive Sections A3 through A10 of this Article IV (or adopt any provision inconsistent therewith) or (ii) authorize or issue any shares of any class or series of capital stock of the Corporation entitling the holder thereof to more than one (1) vote for each share thereof, without first obtaining the affirmative vote (or written consent if action by written consent of shareholders is permitted at such time under these Articles) of the holders of a majority of the then outstanding shares of Class B Common Stock, voting as a separate class, in addition to any other vote required by applicable law, these Articles or the Bylaws.
| B. | Preferred Stock |
1. The Corporation’s Board of Directors shall be authorized, without further shareholder approval and subject to any limitations prescribed by applicable law, to provide for the issuance of shares of Preferred Stock in such class or series as may be determined by the Board of Directors by filing Articles of Amendment or Amended and Restated Articles pursuant to the law of the Commonwealth of Massachusetts, to establish from time to time the number of shares to be included in each such class or series, and to fix the designation, powers, preferences and rights of the shares of each such class or series, including without limitation thereof, dividend rights, conversion rights, redemption privileges and liquidation preferences, all to the fullest extent now or hereafter permitted, and any qualifications, limitations or restrictions thereof, as shall be stated and expressed in such resolutions.
2. The number of authorized shares of Preferred 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 Common Stock, without a vote of the holders of the Preferred Stock, or of any class or series thereof, unless a vote of any such holders is required pursuant to the terms of any Preferred Stock provided in any such Articles of Amendment or Amended and Restated Articles. In case the number of shares of any class or series shall be so decreased, the shares constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such class or series.
| C. | Staggered Board of Directors |
1. The Board of Directors, other than those who may be elected by the holders of any class or series of Preferred Stock under specified circumstances, shall be divided into three classes: Class I, Class II and Class III.
2. Each Director shall serve for a term ending on the third annual meeting of shareholders following the annual meeting of shareholders at which such Director was elected; provided, however, that the directors first elected, assigned or appointed to Class I shall serve for a term ending on the Corporation’s first annual meeting of shareholders following the effectiveness of this provision in these Articles; the Directors first elected, assigned or appointed to Class II shall serve for a term ending on the Corporation’s second annual meeting of shareholders following the effectiveness of this provision in these Articles; and the directors first elected, assigned or appointed to Class III shall serve for a term ending on the Corporation’s third annual meeting of shareholders following the effectiveness of this provision in these Articles.
3. The Board of Directors is authorized to assign members of the Board of Directors already in office to such classes as it may determine at the time the classification of the Board of Directors becomes effective. The foregoing notwithstanding, each Director shall serve until such Director’s successor shall have been duly elected and qualified, or until such Director’s prior death, resignation, retirement, disqualification or other removal.
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4. Prior to the occurrence of the Voting Threshold Date, any newly created directorships resulting from an increase in the authorized number of directors and any vacancies occurring in the Board of Directors, shall be filled by the affirmative votes of the holders of a majority of the Common Stock for nominees designated by the holders of a majority of the Class B Common Stock. On and after the Voting Threshold Date, any newly created directorships resulting from an increase in the authorized number of directors and any vacancies occurring in the Board of Directors, shall be filled by vote of a majority of the remaining members of the Board of Directors, although less than a quorum, or by a sole remaining director, and not by shareholders. A director so elected shall be elected to hold office until the earlier of the expiration of the term of office of the director whom he or she has replaced, a successor is duly elected and qualified or the earlier of such director’s death, resignation or removal.
| D. | Approval by Shareholders of Certain Actions |
1. Amendment or Restatement of Articles. Unless a greater percentage vote, or action by one or more separate voting groups, is required by these Amended and Restated Articles of Organization (“Articles”), by the Bylaws of the Corporation, by the provisions of the MBCA, or by the Board of Directors of the Corporation acting pursuant to Section 10.03 of the MBCA, the approval and adoption of any amendment to these Articles or any Restated Articles of the Corporation shall require the affirmative vote of at least a majority of all shares entitled generally to vote on such matter by these Articles prior to the Voting Threshold Date, and the affirmative vote of two-thirds of all shares entitled generally to vote on such matter by these Articles on and after the Voting Threshold Date, ; provided, however, that as long as any shares of Class A Common Stock are outstanding, the Corporation shall not, without the prior affirmative vote of the holders of a majority of the outstanding shares of Class A Common Stock, voting as a separate class, in addition to any other vote required by applicable law or these Articles, directly or indirectly, whether by amendment, or through merger, recapitalization, consolidation or otherwise amend, alter, change, repeal or adopt any provision of these Articles (1) in a manner that is inconsistent with, or that otherwise alters or changes the powers, preferences, or special rights of the shares of Class A Common Stock so as to affect them adversely; or (2) to provide for each share of Class B Common Stock to have more than fifteen (15) votes per share or any rights to a separate class vote of the holders of shares of Class B Common Stock other than as provided by these Articles or the MBCA.
2. Merger or Share Exchange. Unless a greater percentage vote, or action by one or more separate voting groups, is required by these Articles, by the Bylaws of the Corporation, by the provisions of the MBCA, or by the Board of Directors of the Corporation acting pursuant to subsection (3) of Section 11.04 of the MBCA, the approval and adoption of plan of merger or share exchange shall require the affirmative vote of at least a majority of all shares entitled generally to vote on such matter by these Articles.
3. Sale or Lease of All or Substantially All Property. Unless a greater percentage vote, or action by one or more separate voting groups, is required by these Articles, by the Bylaws of the Corporation, by the provisions of the MBCA, or by the Board of Directors of the Corporation acting pursuant to subsection (b) of Section 12.02 of the MBCA, the approval of a sale, lease, exchange or disposition of all or substantially all property of the Corporation in accordance with Section 12.02 of the MBCA shall require the affirmative vote of at least a majority of all shares entitled generally to vote on such matter by these Articles.
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4. Voluntary Dissolution of the Corporation. Unless a greater percentage vote, or action by one or more separate voting groups, is required by these Articles, by the Bylaws of the Corporation, by the provisions of the MBCA, or by the Board of Directors of the Corporation acting pursuant to subsection (c) of Section 14.02 of the MBCA, the approval of a proposal to dissolve the Corporation in accordance with Section 14.02 of the MBCA shall require the affirmative vote of at least a majority of all shares entitled generally to vote on such matter by these Articles.
5. Domestication into Foreign Jurisdiction. Unless a greater percentage vote, or action by one or more separate voting groups, is required by these Articles, by the Bylaws of the Corporation, by the provisions of the MBCA, or by the Board of Directors of the Corporation acting pursuant to subsection (3) of Section 9.21 of the MBCA, the approval of a plan of domestication of the Corporation to a foreign jurisdiction in accordance with Section 9.21 of the MBCA shall require the affirmative vote of at least a majority of all shares entitled generally to vote on such matter by these Articles.
6. Entity Conversion. Unless a greater percentage vote, or action by one or more separate voting groups, is required by these Articles, by the Bylaws of the Corporation, by the provisions of the MBCA, or by the Board of Directors of the Corporation acting pursuant to subsection (3) of Section 9.52 of the MBCA, the approval of a plan of entity conversion to a domestic or foreign other entity in accordance with Section 9.52 of the MBCA shall require the affirmative vote of at least a majority of all shares entitled generally to vote on such matter by these Articles, and in addition, a majority of the shares of any voting group entitled to vote separately on the matter pursuant to the MBCA, by these Articles or by the Bylaws of the Corporation, or by action of the Board of Directors of the Corporation taken pursuant to Subsection (3) of Section 9.52 of the MBCA.
7. Choice of Forum. Unless the Corporation consents in writing to the selection of an alternative forum, the Business Litigation Session of the Superior Court for Suffolk County, Massachusetts and United States District Court for the District of Massachusetts sitting in Boston, Massachusetts shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim for breach of a fiduciary duty owed by any director, officer, employee, or agent of the Corporation to the Corporation or the Corporation's shareholders, (c) any action asserting a claim arising pursuant to any provision of the MBCA, the Articles, or the Bylaws of the Corporation, or (d) any action asserting a claim governed by the internal affairs doctrine, in each case subject to said courts having personal jurisdiction over the indispensable parties named as defendants therein, except that the United States District Court of Massachusetts in Boston shall be the sole and exclusive forum for any claim arising under the Securities Act of 1933, as amended. This provision will not apply to claims arising under the Securities Exchange Act of 1934, as amended, or other federal securities laws for which there is exclusive federal jurisdiction. Any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article IV.D.7.
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Article V - Restrictions
The restrictions, if any, imposed by the articles or organization upon the transfer of shares of any class or series of stock are: None.
Article VI - Other Lawful Provisions
The Corporation shall have all lawful powers of a corporation organized pursuant to the MBCA. In addition to, and not in limitation of, thereof:
| (a) | the Corporation shall have the right, power and authority to carry on any business, operation or activity to the same extent as might an individual, whether as a principal, agent, contractor, or otherwise, and either alone or in conjunction, joint venture, partnership or other arrangement with any other entity or natural person. |
| (b) | the Corporation shall have the right, power and authority to carry on any lawful business, operation or activity through one or more direct or indirect subsidiaries, whether wholly-owned or owned in part. |
| (c) | the Corporation shall have the right, power and authority to be a partner in any business enterprise which the Corporation would have the power to conduct directly or through a direct or indirect subsidiary. |
| (d) | The Board of Directors may make, amend, restate or repeal the Bylaws of the Corporation, in whole or in part, except with respect to any provision of such Bylaws which, by law or the terms of such Bylaws, requires the approval of the shareholders. |
| (e) | Meetings of the shareholders of the Corporation may be held anywhere in the United States or solely by means of remote communication, and subject to guidelines and procedures adopted by the Board of Directors, shareholders and proxyholders not physically present at a meeting of shareholders, may participate and be deemed present in person and capable of voting by means of remote communications. |
| (f) | Special meetings of the shareholders for any purpose or purposes may be called at any time by the Board of Directors, the Chairperson of the Board of Directors, or the Chief Executive Officer of the Corporation, and may not be called by any other person; provided that prior to the first date on which the Founders or their Permitted Transferees collectively beneficially own 20% or less of the number of shares of Class B Common Stock (as such number of shares is equitably adjusted in respect of any reclassification, stock dividend, subdivision, combination or recapitalization of the Class B Common Stock) collectively held by the Founders or their Permitted Transferees as of the Initial Public Offering Closing (the “Voting Threshold Date”), special meetings of shareholders for any purpose or purposes may be called by or at the request of the holders of a majority of the outstanding shares of Class B Common Stock. Business transacted at any special meeting of shareholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting. |
| (g) | No shareholder shall have the right to examine any property or any books, accounts or other writings of the Corporation if there is a reasonable ground for belief that such examination will, for any reason, be adverse to the interests of the Corporation. A vote of the Directors, refusing permission to make such examination and setting forth that in the opinion of the Directors such examination would be adverse to the interests of the Corporation, shall be prima facie evidence that such examination would be adverse to the interests of the Corporation. Every such examination shall be subject to such reasonable regulations as the Directors may establish with respect thereto. |
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| (h) | The Directors may specify the manner in which the accounts of the Corporation shall be kept and may determine what constitutes net earnings, profits and surplus, what amounts, if any, shall be reserved for any corporate purpose, and what amounts, if any, shall be declared as dividends. Unless the Directors specify otherwise, the excess of the consideration paid for any shares of capital stock with par value issued by it over such par value shall be paid-in surplus. The Directors may allocate to capital stock less than all of the consideration paid for any share of the Corporation’s capital stock without par value issued by the Corporation, in which case the balance of such consideration shall be paid-in surplus. All surplus shall be available for any corporate purpose, including the payment of dividends. |
| (i) | The purchase or other acquisition or retention by the Corporation of shares of its own capital stock shall not be deemed a reduction of its capital stock. Upon any reduction of capital or capital stock, no shareholder shall have any right to demand any distribution from the Corporation, except as and to the extent that the shareholders shall have provided at the time of the authorization of such reduction. |
| (j) | The Directors shall have the power to fix from time to time their compensation. |
| (k) | No person shall be disqualified from holding any office by reason of any interest. In the absence of fraud, any Director, officer, or shareholder of the Corporation, individually, or any individual having any interest in any concern which is a shareholder of the Corporation, or any concern in which any of such Directors, officers, shareholders or individuals has any interest, may be a party to or may be pecuniarily or otherwise interested in, any contract, transaction or other act of the Corporation, and |
| (1) | such contract, transaction or act shall not be in any way invalidated or otherwise affected by that fact; |
| (2) | no such Director, officer, shareholder or individual shall be liable to account to the Corporation for any profit or benefit realized through any such contract, transaction or act; and |
| (3) | any such Director of this Corporation may be counted in determining the existence of a quorum at any meeting of the Board of Directors or of any committee of the Board of Directors which shall authorize any such contract, transaction or act, and may vote to authorize the same. |
Provided, however, that any contract, transaction or act in which any Director or officer of the Corporation is so interested individually or as a director, officer, trustee or member of any concern which is not a direct or indirect subsidiary or affiliate of the Corporation, or in which any directors or officers are so interested as holders, collectively, of a majority of the shares of capital stock or other beneficial interest at the time outstanding in any concern which is not a direct or indirect subsidiary or affiliate of the Corporation, shall be duly authorized or ratified by a majority of the Directors who are not so interested, to whom the nature of such interest has been disclosed and who have made any findings required by law.
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For the purposes of this Article (a) the term “interest” shall mean and include any personal interest and any interest as a director, officer, shareholder, shareholder, trustee, member or beneficiary of any concern; (b) the term “concern” shall mean and include any Corporation, association, trust, partnership, limited liability company, firm, person or other entity other than this Corporation; and (c) the phrase “subsidiary or affiliate” shall mean and include any concern in which a majority of the directors, trustees, partners or controlling persons is elected or appointed by the Directors of this Corporation or is constituted of the Directors or officers of this Corporation.
To the extent permitted by law, the authorizing or ratifying vote of the holders of a majority of the shares of each class of the capital stock of the Corporation outstanding and entitled to vote for Directors at an annual meeting or special meeting duly called for the purpose (whether such vote is passed before or after judgment is rendered in a suit with respect to such contract, transaction or act) shall validate any contract, transaction or act of this Corporation, or of the Board of Directors or any committee thereof, with regard to all shareholders of this Corporation, whether of record at the time of such vote, and with regard to all creditors and other claimants of this Corporation; provided, however, that
| (A) | with respect to the authorization or ratification of any contract, transaction or act in which any of the Directors, officers or shareholders of this Corporation have an interest, the nature of such contract, transaction or act and the interest of any Director, officer or shareholder therein shall be summarized in the notice of any such annual or special meeting, or in a statement or letter accompanying such notice, and shall be fully disclosed at any such meeting; |
| (B) | the shareholders so voting shall have made any findings required by law; |
| (C) | shareholders so interested may vote at any such meeting except to the extent otherwise provided by law; and |
| (D) | any failure of the shareholders to authorize or ratify any such contract, transaction or act shall not be deemed in any way to invalidate the same or to deprive the Corporation, its Directors, officers or employees of their right to proceed with such contract, transaction or act. |
No contract, transaction or act of the Corporation shall be voidable by reason of any provision of this paragraph (k) which would be valid except for any such provision or provisions.
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| (l) | No Director of the Corporation shall be personally liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a Director to the extent provided by applicable law notwithstanding any provision of law imposing such liability; provided, however, that to the extent, and only to the extent, required by the MBCA (or any successor thereto), this provision shall not eliminate or limit the liability of a Director (i) for breach of the Director’s fiduciary duty of loyalty to the Corporation or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under the MBCA, or (iv) for any transaction from which the Director derived an improper personal benefit. This provision shall not be construed in any way so as to impose or create liability. The foregoing provisions of this Article VI, paragraph (j) shall not eliminate the liability of a Director for any act or omission occurring prior to the date on which this Article VI, paragraph (j) becomes effective. No amendment to or repeal of this Article VI, paragraph (j) shall apply to or have any effect on the liability or alleged liability of any Director of the Corporation for or with respect to any acts or omissions of such Director occurring prior to such amendment or repeal. |
| (m) | To the fullest extent permitted by the MBCA, the Corporation may indemnify each current and former officer and director against: (i) all actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or sustained by such person in or about the conduct of the Corporation’s business or affairs or in the execution or discharge of such person’s duties, powers, authorities or discretions, and (ii) without limitation to paragraph (i), all costs, expenses, losses or liabilities incurred by such person in defending (whether successfully or otherwise) any civil, criminal, administrative or investigative proceedings (whether threatened, pending or completed) concerning the Corporation or its affairs in any court or tribunal, whether in Massachusetts or elsewhere; provided, however, that no current or former officer or director shall be indemnified in respect of any matter arising out of his or her own actual fraud, failure to conduct himself or herself in good faith, willful default, or willful neglect. To the extent permitted by applicable law, the Corporation may make a payment, or agree to make a payment, whether by way of advance, loan or otherwise, for any legal costs incurred by a current or former officer or director in respect of any matter identified in paragraph (i) or paragraph (ii) above on condition that such person must repay the amount paid by the Corporation to the extent that it is ultimately found not liable to indemnify such person for those legal costs. |
| (n) | The Directors may, to the full extent permitted by the MBCA and applicable law as it presently exists, or may hereafter be amended from time to time, authorize an appropriate officer or officers to purchase and maintain at the Corporation’s expense insurance: (i) to indemnify the Corporation for any obligation which it incurs as a result of the indemnification of directors and officers under the provisions of this Article VI; and (ii) to indemnify and/or insure directors, officers and employees against liability to the fullest extent permitted by the MBCA and applicable law. |
| (o) | In a Contested Election Meeting, Directors shall be elected by a plurality of the votes cast at such Contested Election Meeting. A meeting of shareholders shall be a “Contested Election Meeting” if there are more persons nominated for election as Directors at such meeting than there are Directors to be elected at such meeting, determined as of the tenth day preceding the date of the Corporation’s first notice to shareholders of such meeting pursuant to the Corporation’s Bylaws (such date, the “Determination Date”); provided, however, that if, in accordance with the Corporation’s Bylaws, shareholders are entitled to nominate persons for election as Director for a period of time that ends after the otherwise applicable Determination Date, the Determination Date shall be as of the day immediately following the end of such period. |
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| (p) | Any action required or permitted to be taken at any annual or special meeting of the shareholders of the Corporation may be taken prior to the Voting Threshold Date without a meeting by the written consent of shareholders having not less than the minimum number of votes necessary to take such action at a meeting of the shareholders at which all shareholders entitled to vote thereon are present and voting; provided that, in accordance with these Articles and the Corporation’s Bylaws, (i) shareholders who own, in the aggregate, not less than a majority of all the votes entitled to be cast on any issue to be considered at any annual or proposed special meeting of the Corporation, as determined in accordance with these Articles, shall by written notice to the Secretary of the Corporation request that the Board of Directors fix a record date for the proposed action by shareholders including the information required by the Corporation’s Bylaws, (ii) the Corporation shall solicit written consents from all shareholders and (iii) such action shall be evidenced by a consent or consents in writing, setting forth the action to be taken, which shall be signed and delivered to the Secretary of the Corporation, and not revoked, by shareholders having the requisite votes; provided, further, however, that any such action shall be taken in accordance with, and subject to the Corporation’s Bylaws, the MBCA and applicable law. Following the Voting Threshold Date, except as provided in the last paragraph of this section, any action required or permitted to be taken by the shareholders must be effected at an annual or special meeting of the shareholders and may not be effected by written consent in lieu of a meeting. |
For purposes of determining whether shareholders own, in the aggregate, at least a majority of all the votes entitled to be cast on any issue to be considered at any annual or proposed special meeting of the Corporation, a shareholder shall be deemed to “own” only those outstanding shares of the Corporation’s stock as to which the shareholder possesses both (i) full voting and investment rights pertaining to the shares and (ii) the full economic interest in (including the opportunity for profit and risk of loss with respect to) such shares; provided that the number of shares calculated in accordance with clauses (i) and (ii) shall not include any shares (1) sold by such shareholder or any affiliate of such shareholder in any transaction that has not been settled or closed, (2) borrowed by such shareholder or any of its affiliates for any purpose(s) or purchased by such shareholder or any of its affiliates pursuant to an agreement to resell or (3) subject to any Derivative Position (as defined in the Corporation’s Bylaws) entered into by such shareholder or any of its affiliates whether such Derivative Position is to be settled with shares or with cash based on the notional amount or value of shares of outstanding stock of the Corporation, in any such case which Derivative Position has, or is intended to have, the purpose or effect of reducing in any manner, to any extent, or at any time in the future, such shareholder’s or affiliates’ full right to vote or direct the voting of any such shares, and/or hedging, offsetting or altering to any degree gain or loss arising from the full economic ownership of such shares by such shareholder or affiliate. A shareholder shall “own” shares held in the name of a nominee or other intermediary so long as the shareholder retains the right to instruct how the shares are voted with respect to the election of Directors and possesses the full economic interest in the shares. The terms “owned,” “owning,” and other variations of the word “own” shall have correlative meanings. Whether outstanding shares of the Corporation’s capital stock are owned for these purposes shall be determined by the Board of Directors in its reasonable discretion.
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Notwithstanding any provision of these Articles or the Corporation’s Bylaws to the contrary, shareholders may act without a meeting by unanimous written consent, and none of the foregoing provisions shall apply to such action. Any action by written consent must be a proper subject for shareholder action by written consent.
| (q) | No amendment or repeal of any provision of these Articles the Corporation’s Bylaws contemplating the indemnification of any Director or officer of the Corporation or of the relevant provisions of M.G.L. Chapter 156D shall affect or diminish the rights of any indemnified Director or officer with respect to any action or proceeding arising out of or relating to any actions occurring prior to the final adoption of such amendment or repeal. If the MBCA is subsequently amended to increase the scope of permitted indemnification, indemnification hereunder shall be provided to the full extent permitted or required by such amendment. |
| (r) | The Corporation hereby expressly elects not to be governed by the provisions of M.G.L. Chapter 110F. |
Notwithstanding the foregoing, the Corporation shall not engage in any business combination (as defined below), at any point in time at which time any class of the Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act, with any interested shareholder (as defined below) for a period of three (3) years following the time that such shareholder became an interested shareholder, unless:
| 1. | prior to such time, the Board of Directors approved either the business combination or the transaction that resulted in the shareholder becoming an interested shareholder, or |
| 2. | upon consummation of the transaction that resulted in the shareholder becoming an interested shareholder, the interested shareholder owned at least 90% of the voting stock (as defined below) of the Corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested shareholder) those shares owned (a) by persons who are directors and also officers and (b) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer, or |
| 3. | at or subsequent to such time, the business combination is approved by the Board of Directors and authorized or approved at an annual or special meeting of shareholders (and, notwithstanding anything to the contrary herein, not by written consent) by the affirmative vote of at least two-thirds of the then-outstanding voting stock of the Corporation that is not owned by the interested shareholder. |
Solely for purposes of this Section (r) of Article VI only, references to:
| 1. | “affiliate” means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another person. |
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| 2. | “associate,” when used to indicate a relationship with any person, means: (a) any corporation, partnership, unincorporated association or other entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of 20% or more of any class of voting stock; (b) any trust or other estate in which such person has at least a 20% beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity; and (c) any relative or spouse of such person, or any relative of such spouse, who has the same residence as such person. |
| 3. | “business combination,” when used in reference to the Corporation and any interested shareholder of the Corporation, means: |
| a. | any merger or consolidation of the Corporation or any direct or indirect majority-owned subsidiary of the Corporation (i) with the interested shareholder or (ii) with any other corporation, partnership, unincorporated association or other entity if the merger or consolidation is caused by the interested shareholder and as a result of such merger or consolidation this Section (r) of Article VI is not applicable to the surviving entity; |
| b. | any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), except proportionately as a shareholder of the Corporation, to or with the interested shareholder, whether as part of a dissolution or otherwise, of assets of the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation, which assets have an aggregate market value equal to 10% or more of either the aggregate market value of all the assets of the Corporation determined on a consolidated basis or the aggregate market value of all the then outstanding stock of the Corporation; |
| c. | any transaction that results in the issuance or transfer by the Corporation or by any direct or indirect majority-owned subsidiary of the Corporation of any stock of the Corporation or of such subsidiary to the interested shareholder, except: (i) pursuant to the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary, which securities were outstanding prior to the time that the interested shareholder became such; (ii) pursuant to a merger under Clause (7) of Section 11.04 or Section 11.05 of the MBCA; (iii) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary, which security is distributed, pro rata to all holders of a class or series of stock of the Corporation subsequent to the time the interested shareholder became such; (iv) pursuant to an exchange offer by the Corporation to purchase stock made on the same terms to all holders of said stock; or (v) any issuance or transfer of stock by the Corporation; provided, however, that in no case under items (iii) through (v) of this subsection (c) shall there be an increase in the interested shareholder’s proportionate share of the stock of any class or series of the Corporation or of the voting stock of the Corporation (except as a result of immaterial changes due to fractional share adjustments); |
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| d. | any transaction involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation that has the effect, directly or indirectly, of increasing the proportionate share of the stock of any class or series, or securities convertible into the stock of any class or series, of the Corporation or of any such subsidiary that is owned by the interested shareholder, except as a result of immaterial changes due to fractional share adjustments or as a result of any purchase or redemption or other transfer of any shares of stock not caused, directly or indirectly, by the interested shareholder; or |
| e. | any receipt by the interested shareholder of the benefit, directly or indirectly (except proportionately as a shareholder of the Corporation), of any loans, advances, guarantees, pledges or other financial benefits (other than those expressly permitted in subsections (a) through (d) above) provided by or through the Corporation or any direct or indirect majority-owned subsidiary. |
| 4. | “control,” including the terms “controlling,” “controlled by” and “under common control with,” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting stock, by contract, or otherwise. A person who is the owner of 20% or more of the outstanding voting stock of the Corporation, partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary. Notwithstanding the foregoing, a presumption of control shall not apply where such person holds voting stock, in good faith and not for the purpose of circumventing this Section (r) of Article VI, as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of such entity. |
| 5. | “Exempt Transferee” means (A) any person that acquires (other than in an Excluded Transfer) directly from a Founder or any of its affiliates or successors ownership of 5% or more of the voting stock of the Corporation, and is designated in writing by the transferor as an “Exempt Transferee” for the purpose of this Section (r) of Article VI; and (B) any person that acquires (other than in an Excluded Transfer) directly from a person described in clause (A) of this definition or from any other Exempt Transferee ownership of voting stock of the Corporation, and is designated in writing by the transferor as an “Exempt Transferee” for the purpose of this Section (r) of Article VI. |
| 6. | “Excluded Transfer” means (a) a transfer to a Person that is not an affiliate of the transferor, which transfer is by gift or otherwise not for value, including a transfer by dividend or distribution by the transferor, (b) a transfer in a public offering that is registered under the Securities Act, (c) a transfer to one or more broker-dealers or their affiliates pursuant to a firm commitment purchase agreement for an offering that is exempt from registration under the Securities Act, (d) a transfer made through the facilities of a registered securities exchange or automated interdealer quotation system and (e) a transfer made in compliance with the manner of sale limitations of Rule 144(f) under the Securities Act or any successor rule or provision. |
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| 7. | “interested shareholder” means any person (other than the Corporation or any direct or indirect majority-owned subsidiary of the Corporation) that (a) is the owner of 5% or more of the then outstanding voting stock of the Corporation, or (b) is an affiliate or associate of the Corporation and was the owner of 5% or more of the then outstanding voting stock of the Corporation at any time within the three (3) year period immediately prior to the date on which it is sought to be determined whether such person is an interested shareholder; and the affiliates and associates of such person; but “interested shareholder” shall not include (x) any Founder, any Exempt Transferee or any of their respective affiliates or successors or any “group,” or any member of any such group, of which any of such persons is a party under Rule 13d-5 of the Exchange Act, or (y) any person whose ownership of shares in excess of the 5% limitation set forth herein is the result of any action taken solely by the Corporation, provided that such person shall be an interested shareholder if thereafter such person acquires additional shares of voting stock of the Corporation, except as a result of further corporate action not caused, directly or indirectly, by such person. For the purpose of determining whether a person is an interested shareholder, the voting stock of the Corporation deemed to be outstanding shall include stock deemed to be owned by the person through application of the definition of “owner” below, but shall not include any other unissued stock of the Corporation that may be issuable pursuant to any other agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise. |
| 8. | “majority-owned subsidiary” of the Corporation (or specified person) means another person of which the Corporation (or specified person), directly or indirectly with or through one or more majority-owned subsidiaries, is the general partner or managing member of such other person or owns equity securities with a majority of the votes of all equity securities generally entitled to vote in the election of directors or other governing body of such other person. |
| 9. | “owner,” including the terms “own,” “owned,” and “ownership,” when used with respect to any stock, means a person that individually or with or through any of its affiliates or associates: |
| a. | beneficially owns such stock, directly or indirectly; or |
| b. | has (i) the right to acquire such stock (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that a person shall not be deemed the owner of stock tendered pursuant to a tender or exchange offer made by such person or any of such person’s affiliates or associates until such tendered stock is accepted for purchase or exchange; or (ii) the right to vote such stock pursuant to any agreement, arrangement or understanding; provided, however, that a person shall not be deemed the owner of any stock because of such person’s right to vote such stock if the agreement, arrangement or understanding to vote such stock arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made to ten (10) or more persons; or |
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| c. | has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in item (ii) of subsection (b) above of this definition), or disposing of such stock with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, such stock. |
| 10. | “person” means any individual, corporation, partnership, unincorporated association or other entity. |
| 11. | “stock” means, with respect to any corporation, capital stock and, with respect to any other entity, any equity interest. |
| 13. | “voting stock” means stock of any class or series entitled to vote generally in the election of directors and, with respect to any entity that is not a corporation, any equity interest entitled to vote generally in the election of the governing body of such entity. Every reference in this Section (r) of Article VI to a percentage of voting stock shall refer to such percentage of the votes of such voting stock. |
| (s) | The Corporation hereby expressly elects not to be governed by the provisions of M.G.L. Chapter 110D. If the provisions of Chapter 110D shall become applicable to control share acquisitions of the Corporation through amendment of these Bylaws or otherwise, the following provisions shall apply: |
| 1. | Redemption of Shares. The Corporation is authorized to redeem shares acquired in a control share acquisition to the extent and in accordance with the procedures specified in Section 6 of Chapter 110D and in this Article VI. |
| 2. | Additional Procedures. The additional procedures for redemption of shares as contemplated by this Article VI shall be: |
| a. | Fair value shall be determined by the Board of Directors or a committee of the Board of Directors of the Corporation, and the amount so determined shall be included in the notice of redemption given by the Corporation pursuant to Section 6 of Chapter 110D. |
| b. | The person whose shares are being redeemed (the “Holder”) may within ten days after the date of the notice of redemption advise the Corporation in writing that the Holder believes that the value so determined is not fair, and in such event the Corporation shall, within the 30-day period following its receipt of the Holder’s notice, permit the Holder to submit such written and oral evidence of value as the Holder may wish and the Board of Directors or committee considers appropriate. The Board of Directors or committee shall affirm or revise its determination of fair value within fifteen days after the completion of the 30-day period, and shall promptly advise the Holder in writing of its decision. |
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| c. | The notice of redemption shall specify a redemption date, which shall be 30 days after the date of the notice (or the first business day after the 30-day period), and a redemption office, which shall be the principal office of the Corporation or an office of a commercial bank specified by the Corporation in the notice. The redemption date so fixed shall not be deferred by a request of the Holder for a redetermination of fair value. The Holder shall cause the certificate or certificates representing the shares being redeemed to be delivered to the redemption office not later than the redemption date, duly endorsed or assigned for transfer, with signature guaranteed, if such an endorsement or assignment is required in the notice of redemption. |
| d. | The certificate or certificates representing the shares being redeemed having been deposited in accordance with item (iii) above, the redemption price shall be paid by the Corporation on the redemption date specified in its notice of redemption or such later date as the redemption price may be determined if the Holder has duly requested a redetermination of fair value. |
| e. | Notice of redemption having been given, from and after the redemption date the shares being redeemed shall no longer be deemed to be outstanding, and all rights of the Holder or Holders thereof as a shareholder or shareholders of the corporation shall cease, except the right to receive the redemption price. If the Corporation shall default in payment of the redemption price, interest shall accrue thereon from the date of default at the base or prime rate of the Corporation’s principal lending bank or, if none, the “base rate” or the “prime rate” as reported in the online edition of the Wall Street Journal as of 4:00 pm EST on any day for which interest shall accrue, and as in effect from time to time during the period of default. |
| f. | Notice given by the Corporation by first class mail or delivered in person on the basis of a good faith determination by the Corporation of the identity and address of the person who had made a control share acquisition shall be deemed to have been duly given. |
| g. | Any person who makes a control share acquisition of the Corporation shall be deemed to have consented to and shall be bound by the provisions of this Article VI and shall indemnify and hold the corporation harmless from and against any damage, loss or expense which the corporation may suffer as a result of any non-compliance with the provisions of this Article VI. |
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| (t) | (A) In recognition and anticipation that (i) certain directors, managers, principals, officers, employees and/or other representatives of the Founders and their Affiliates (as defined below) may serve as directors, officers or agents of the Corporation, (ii) the Founders and their Affiliates may now engage and may continue to engage in the same or similar activities or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, and (iii) members of the Board of Directors who are not employees of the Corporation or a majority owned subsidiary thereof (“Non-Employee Directors”) and their respective Affiliates may now engage and may continue to engage in the same or similar activities or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, the provisions of this section (t) of Article VI are set forth to regulate and define the conduct of certain affairs of the Corporation with respect to certain classes or categories of business opportunities as they may involve any of the Founders, the Non-Employee Directors or their respective Affiliates and the powers, rights, duties and liabilities of the Corporation and its directors, officers and stockholders in connection therewith. |
(B) None of (i) the Founders or any of their Affiliates or (ii) any Non-Employee Director (including any Non-Employee Director who serves as an officer of the Corporation in both his or her director and officer capacities) or his or her Affiliates (the Persons (as defined below) identified in (i) and (ii) above being referred to, collectively, as “Identified Persons” and, individually, as an “Identified Person”) shall, to the fullest extent permitted by law, have any duty to refrain from directly or indirectly (1) engaging in the same or similar business activities or lines of business in which the Corporation or any of its Affiliates now engages or proposes to engage or (2) otherwise competing with the Corporation or any of its Affiliates, and, to the fullest extent permitted by law, no Identified Person shall be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for breach of any fiduciary duty solely by reason of the fact that such Identified Person engages in any such activities. To the fullest extent permitted by law, the Corporation hereby renounces any interest or expectancy in, or right to be offered an opportunity to participate in, any business opportunity which may be a corporate opportunity for an Identified Person and the Corporation or any of its Affiliates, except as provided in Section C of this section (t) of Article VI. Subject to Section C of this section (t) of Article VI, in the event that any Identified Person acquires knowledge of a potential transaction or other business opportunity which may be a corporate opportunity for itself, herself or himself and the Corporation or any of its Affiliates, such Identified Person shall, to the fullest extent permitted by law, have no duty to communicate or offer such transaction or other business opportunity to the Corporation or any of its Affiliates and, to the fullest extent permitted by law, shall not be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for breach of any fiduciary duty as a stockholder, director or officer of the Corporation solely by reason of the fact that such Identified Person pursues or acquires such corporate opportunity for itself, herself or himself, offers or directs such corporate opportunity to another Person, or does not communicate information regarding such corporate opportunity to the Corporation or any Affiliate of the Corporation.
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(C) The Corporation does not renounce its interest in any corporate opportunity offered to any Non-Employee Director (including any Non-Employee Director who serves as an officer of the Corporation in both his or her director and officer capacities) if such opportunity is expressly offered to such Person solely in his or her capacity as a director or officer of the Corporation, and the provisions of Section (B) of this section (t) of Article VI shall not apply to any such corporate opportunity.
(D) In addition to and notwithstanding the foregoing provisions of this section (t) of Article VI, a corporate opportunity shall not be deemed to be a potential corporate opportunity for the Corporation if it is a business opportunity that (i) the Corporation is neither financially or legally able, nor contractually permitted, to undertake, (ii) from its nature, is not in the line of the Corporation’s business or is of no practical advantage to the Corporation or (iii) is one in which the Corporation has no interest or reasonable expectancy.
(E) Solely for purposes of this section (t) of Article VI, “Affiliate” shall mean (a) in respect of any Founder, any Person that, directly or indirectly, is controlled by such Founder, controls such Founder or is under common control with such Founder and shall include (i) any principal, member, director, manager, partner, stockholder, officer, employee or other representative of any of the foregoing (other than the Corporation and any entity that is controlled by the Corporation) and (ii) any funds or vehicles advised by Affiliates of such Founder, (b) in respect of a Non-Employee Director, any Person that, directly or indirectly, is controlled by such Non-Employee Director (other than the Corporation and any entity that is controlled by the Corporation) and (c) in respect of the Corporation, any Person that, directly or indirectly, is controlled by the Corporation.
(F) To the fullest extent permitted by law, any Person purchasing or otherwise acquiring or holding any interest in any shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this section (t) of Article VI.
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