AGREEMENT AND PLAN OF MERGER among JANONE INC., a Nevada. corporation, STI MERGER SUB INC., a Delaware corporation, SOIN THERAPEUTICS, LLC, a Delaware limited liability company, and A.MOL Soin, M.D. Dated December 28, 2022

EXECUTION VERSION

 

 

 

 

 

 

AGREEMENT AND PLAN OF MERGER

 

 

among

 

 

JANONE INC.,

a Nevada. corporation,

 

STI MERGER SUB INC.,

a Delaware corporation,

 

SOIN THERAPEUTICS, LLC,

a Delaware limited liability company, and

▇.▇▇▇ Soin, M.D.

 

 

 

 

Dated December 28, 2022

 

 

 

 

 

 

 

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TABLE OF CONTENTS

ARTICLE I THE NIERGER 2

ARTICLE II REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY 7

ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE ACQUIRER AND THE MERGER SUB 20

ARTICLE IV ADDITIONAL AGREEMENTS 23

 

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ARTICLE V CONDITIONS PRECEDENT 31

ARTICLE VI INDE:M:NIFICATION 33

ARTICLE VII TERMINATION 37

ARTICLE VIII GENERAL PROVISIONS 38

 

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Exhibit A



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Definitions



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Exhibits

 

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Exhibit B Exhibit C Exhibit D Exhibit E



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Form of Certificate of Merger

Company Closing Financial Certificate Template Required Actions

Form of Series S Convertible Preferred Stock Certificate of Designation

 

Schedules

 

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Company Disclosure Letter

 

 

 

 

iii

 

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AGREEMENT AND PLAN. OF MERGER

 

THISAGREEMENT AND PLAN OF MERGER (this “Agreement') is made and entered into as of December 28, 2022 (the "Agreement Date'), among JanOne Inc., a Nevada corporation ("Acquirer'), STI Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Acquirer ("Merger Sub"), Soin Therapeutics, UC, a Delaware limited liability company (the "Company'), and ▇▇▇▇ ▇▇▇▇ M.D. a resident of the State of Ohio (the “Sole Owner'). Certain other terms used herein are defined in Exhibit A.

 

RECITALS

 

 

 

 

 

 

 

Now, THEREFORE, in consideration of the foregoing and of the representations, warranties, covenants, and agreements contained in this Agreement, and for such other good and valuable consideration, the receipt and adequacy of which ate hereby confirmed, the parties, intending to be legally bound, agree as follows:

 

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ARTICLE!

THE MERGER

 

 

 

 

 

 

 

 

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parties to this Agreement adopt this Agreement as a "plan of reorganization" within the meaning of Sections 1.368-2(g) and 1368-3(a) of the Treasury Regulations.

 

(fu") the Certificate of Merger, executed by the Company;

 

 

Receipt by the Acquirer of any of the agreements, instruments, certificates, or documents delivered pursuant to this Section 1.2(a) shall not be deemed to be an agreement by the Acquirer or the Merger Sub that the information or statements contained therein are true, correct, or complete, and shall not diminish the Acquirer's or the Merger Sub's remedies hereunder if any of the foregoing agreements, instruments, certificates, or documents .are not true, correct, or complete.

 

 

 

 

 

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Agreement in accordance with the DGCL, and (III) directing that the adoption of this Agreement be submitted to its sole stockholder for consideration and recommending that its sole stockholder adopt this Agreement and approve the Merger, and (D) the resolutions of the Acquirer as the sole stockholder of the Merger Sub adopting this Agreement and approving the Merger;

 

 

 

 

 

 

 

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end that the provisions hereof shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any shares of stock, securities or assets thereafter deliverable pursuant to the Merger Consideration. The provisions of this Section 1.3(c) shall similarly apply to successive consolidations, mergers, sales, transfers or other dispositions.

 

 

 

 

 

(iii) The Merger Consideration Shares initially shall consist of 100,000 shares of Series S Conve1tible Preferred Stock. In the event that, based upon the conversion rights in favor of the Sole Owner as set forth in the Series S CoD, additional shares of Series S Convertible Preferred Stock are required to be issued to the Sole Owner to fulfill the obligations of the Acquirer thereunder, then the Acquirer shall promptly issue to the Sole Owner that number of additional shares thereof sufficient to fulfill such obligations. In the event that, based upon the conversion rights in favor of the Sole Owner as set forth in the Series S CoD, the number of authorized, but unissued, shares of Series S Convertible Preferred Stock shall be insufficient for the Acquirer to fulfill its obligations to the Sole Owner hereunder, then the Acquirer and, if required, the Sole Owner shall promptly take such action as is reasonably required to increase the number of authorized, but unissued, shares of Series S Convertible Preferred Stock to an amount sufficient to permit the Acquirer to fulfill its obligations hereunder. If, as of December 28, 2032, (i) any shares of Series S Convertible Preferred Stock from the $17 Million Tranche (as that term is defined in the Series S CoD) remain issued and outstanding, or (ii) any shares of Series S Convertible Preferred Stock from either the $3 Million Tranche or the $10 Million Tranche (as such terms are defined in the Series S CoD) remain issued and outstanding after the Sole Owner has converted shares of Series S Convertible Preferred Stock from the $3 Million Tranche and the $10 Million Tranche into Acquirer Common Stock having an aggregate value upon all such conversions of

$13,000,000, then the Sole Owner shall promptly thereafter return all such remaining shares to the Acquirer for cancellation without the receipt of any additional consideration therefor.

 

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT''), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE

 

 

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SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THATTHEY MAY BE REQUIRED TO BEAR THE FINANCIAL RJSKS OF THIS INVESTMENT FOR AN INDEFINITE PERJOD OF TIME. THE ISSUER OF THESE SECURJTIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE SECURJTIES ACT AND ANY APPLICABLE STATE SECURJTIES LAWS.

THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO CERTAIN INDEMNIFICATION OBLIGATIONS OF THE HOLDER IN FAVOR OF THE COMPANY, ALL AS SET FORTH IN THAT CERTAIN AGREEMENT AND PLAN OF MERGER, DATED AS OF DECEMBER 28, 2022, AMONG THE COMPANY, THE HOLDER, AND THE OTHER PARTIES THERETO. COPIES OF THAT AGREEJ.\IBNT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST_MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE COMPANY.

THE SECURITIES REPRESENTED HEREBY 111AY BE SUBJECT TO CANCELLATION AS OF DECEMBER 28, 2032, PURSUANT TO THE PROVISIONS OF THAT CERTAIN AGREEMENT AND PLAN OF MERGER, DATED AS OF DECEMBER 28, 2022, AMONG THE COMPANY, THE HOLDER, AND THE OTHER PARTIES_THERETO. COPIES OF T!-IAT AGREEMENT MAY BE OBTAINED AT NO COST BY WRITI'EN REQUEST_MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE COMPANY.

 

 

 

 

 

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withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to such Persons in respect of which such deduction and withholding was made.

 

ARTICLE II

REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY

 

Subject to the disclosures set forth in the disclosure letter of the Company delivered to the Acquirer concurrently with the execution of this Agreement (the "Company Disclosure Letter') (each of which disclosures, in order to be effective, shall clearly indicate the Section and, if applicable, the Subsection of this Ai-tide II to which it relates (unless and only to the extent that the relevance to other representations and warranties is reasonably apparent from the actual text of the disclosures without any reference to extrinsic documentation or any independent knowledge on the part of the reader regarding the matter disclosed), each of the Company and the Sole Owner, jointly and severally, represent and warrant to the Acquirer as follows:

 

 

 

 

 

 

 

 

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which the Sole Owner or the Company is a party and are not subject to or in violation of any preemptive or similar rights of any Person. The Company is not under any obligation to register under the Securities Act or any other Applicable Law any of the membership interests of the Company.

 

 

 

« Company Member Approval').

 

(6) The execution and delivery of this Agreement and the other Company Transaction Documents by the Company does not, and the consummation of the Transactions will not, (i) result in the creation of any Encumbrance on any of the material assets of the Company or any of the membership interests of the Company or (ii) conflict with, or result in any violation of or default under (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation, or acceleration of any obligation or loss of any benefit under, or require any consent, approval, or waiver from any Person pursuant to, (A) any provision of the Company's Governing Documents, in each case as amended to date, (B) any Contract of the Company or any Contract applicable to any of the assets of the Company ox (C) any Applicable Law.

(c) No consent, approval, Order, or authorization of, or registration, declaration, or filing with, or notice to, any Governmental Entity or any other Person is required by or with respect to the Company in connection with the execution and delivery of this Agreement or any other Company Transaction Document or the consummation of the Transactions, except for (i) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware and (ii) those that, if not obtained or made, would not reasonably be expected to materially adversely affect the ability of the Company to consummate the Transactions.

 

 

 

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any action that if taken after the Agreement Date would have required the prior written consent of the Acquirer pursuant to Section 4.1(a) - (y).

 

 

 

 

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(B) Proprietary Information and Technology.

 

 

 

 

 

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(d) bank accounts, credit or debit card numbers, with or without any required security code, access code, personal identification numbers or passwords, that in each case would permit access to an individual's financial account, and account information, including balances and transaction data; and (e) passwords or log-in credentials for accessing accounts.

 

 

 

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Intellectual Property used in the conduct of its business as now conducted. The Company does not have any obligation to disclose or otherwise share information related to its manufacturing processes with any third-party entity.

 

 

 

 

G) Activities with Governmental Entities or Universities. Except as provided in Section 2.100) of the Company Disclosure Letter, no academic institution, research center, or Governmental Entity (or any Person working for or on behalf of any such entity) has, or will be entitled to have, any right, title, or interest (including any "march-in" or co-ownership rights) in or to any Company Intellectual Property. Except as set forth in Section 2.1OG) of the Company Disclosure Letter, no funding, Intellectual Property, facilities, personnel, or other resources of any academic

 

 

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institution, research center, Governmental Entity has been used in connection with the conception, reduction to practice, development, or other creation of any Company Intellectual Property, in each case in a manner that would cause such institution, center, or Governmental Entity to have or be entitled to have any right, title, or interest in or to any Company Intellectual Property.

 

 

 

 

 

 

 

(g) The Company has not participated in, and is not currently participating in, a "Reportable Transaction" within the meaning of Section 6707A(c)(2) of the Code or Treasury Regulation Section 1.6011-4(6).

 

 

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G) The Company will not be required to include any item of income in, or exclude any item of deduction from, Taxable income for any Taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting or use of an improper method of accounting for a Taxable period ending on or prior to the Closing Date, (it) "closing agreement" described in Section 7121 of the Code (or any corresponding or similar provision of state, local, or foreign Tax law) executed on or prior to the Closing Date, (iii) intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local, or foreign Tax law), (iv) installment sale or open transaction disposition made on or prior to the Closing Date, or (v) prepaid amount received or deferred revenue accrued on or prior to the Closing Date.

 

 

 

 

 

foreign Tax laws (as applicable), and (iii) timely filed all withholding Tax Returns, for all periods

through and including the Closing Date. The Company is eligible for any payroll tax credit or deferral

 

 

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that it has claimed pursuant to the CARES Act. Schedule 2.11(o) of the Company Disclosure Letter sets forth any such tax credit or deferral that the Company has claimed.

 

 

 

 

 

 

 

 

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(A) the right to declare a default or exercise any remedy under any Material Contract, (B) the right to a rebate, chargeback, refund, credit, penalty, or change in delivery schedule under any Material Contract, (C) the right to accelerate the maturity or performance of any obligation of the Company under any Mate1ial Contract, or (D) the right to cancel, terminate, or modify any Material Contract. The Company has not received any written or, to the Company's knowledge, verbal, notice or other communication regarding any actual or possible violation or breach of, default under, or intention to cancel or modify any Material Contract (including under a force111ajeure or similar provision, including as a result of the COVID-19 Pandemic). The Company does not have any Liability for renegotiation of any Government Contract. True and complete copies of all Material Contracts have been made available to the Acquirer.

 

 

 

 

 

 

 

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▇▇▇▇▇▇▇, and Illegal Gratuities" set forth in 56 Fed. Reg. 46191 (September 10, 1991) and any amendments thereto. Additionally, neither the Company nor, to the knowledge of the Company, any officer, employee, or agent of the Company has been convicted of any crime or engaged in any conduct that would reasonably be expected to result in (i) debarment under 21 U.S.C. Section 335a or any similar applicable state or foreign Applicable Law or (ii) exclusion under 42 U.S.C. Section 1320a- 7 or any similar applicable state or foreign Applicable Law.

 

 

 

 

 

(i) inspection reports, (ii) notices of adverse :findings, warning or untitled letters, or minutes of meetings, or (iii) other correspondence concerning the Company Products, in each case in which any Governmental Entity asserted in writing that the operations of the Company may not be in compliance with Applicable Laws.

 

G) All applications, notifications, submissions, information, claims, reports, and statistics and other data that have been utilized by the Company, or prepared with the intention to be utilized by the Company, as the basis for or submitted in connection with any regulatory notifications, submissions, applications, filings, or Company Authorizations to the FDA or any other Governmental Entity relating to the Company Products were true, complete, and correct in all material respects as of the date of preparation and submission, as applicable, and/or any necessary or required updates, changes, corrections, or modification to such applications, notifications, submissions, information, and data have been submitted to the FDA or other Governmental Entity.

 

(k) Neither the Company nor any of its employees or agents acting on the Company's behalf has (i) made any offer to, or used any funds for, unlawful contributions, loans,

 

 

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donations, gifts, entertainment, bribe, rebate, payoff, influence payment, kickback, or other unlawful expenses, payments, or gifts of money or anything of value, in each case as prohibited under any Applicable Law; (.ii") made or agreed to make any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns; (iii) taken any action that would constitute a violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C.§§78dd-1, et seq, or the Anti-Kickback Statute, 42 U.S.C.§1320a-7b, the Physician Self-Referral Law, 42 U.S.C. §1395nn, or their equivalent in any jurisdiction where the Company conducts business; or (iv) made or agreed to make any other unlawful payment.

 

Q.) Except as set forth in Section 2.18(1) of the Company Disclosure Letter, the Company has not conducted or sponsored, and is not currently conducting or sponsoring, any clinical trials, nor have any clinical trials been conducted or sponsored on the Company's behalf. Each of the clinical trials set forth in Section 2.18(1) of the Company Disclosure Letter, was conducted or is being conducted in compliance with all Applicable Laws. Except as set forth in Section 2.180) of the

Company Disclosure Letter, the Company has not filed any investigational new drug application, nor has any investigational new drug application been filed on the Company's behalf. No investigational new drug application filed by or on behalf of the Company with the FDA or any comparable foreign Governmental Entity has been te1minated or suspended by the FDA or such Governmental Entity, and neither the FDA nor such Governmental Entity has commenced, or threatened to initiate, any action to place a clinical hold order on, or otherwise terminate, delay, or suspend, any proposed or ongoing clinical investigation conducted or proposed to be conducted by the Company.

 

 

 

ARTICLE III

representations and Warranties OF the acquirer and the merger SUB

 

Except as and to the extent disclosed in the Acquirer SEC Reports filed or furnished with the SEC on or after August 15, 2022 (the “Applicable Date') and publicly available as of the Agreement Date, the Acquirer and the Merger Sub, jointly and severally, represent and warrant to the Company and the Sole Owner as follows:

 

 

 

 

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execution and delivery of this Agreement by the other parties hereto, constitutes the valid and binding obligation of the Acquirer and the Merger Sub enforceable against each of them, respectively, in accordance with its terms, subject only to the effect, if any, of (i) applicable bankruptcy and other similar Applicable Law affecting the rights of creditors generally and (ii) rules of law governing specific performance, injunctive relief, and other equitable remedies.

 

 

 

 

 

 

 

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or warranty as to the Company, the Sole Owner or this Agreement, except as expressly set forth in

Article II of this Agreement (including the related portions of the Company Disclosure Letter).

 

 

 

ARTICLE IV

ADDITIONAL AGREEMENTS

 

 

 

 

 

 

 

(£) incur any Company Debt (other than trade payables or accruals in the ordinary course of business and consistent with past practice), issue any debt securities or assume, guarantee, endorse, or otherwise become responsible for the obligations for borrowed money of any Person, or make any loans or advances;

 

 

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$2,000 or capital expenditures that are in the aggregate in excess of $5,000;

 

G) (i) make any change with respect to accounting methods or practices or internal accounting control inventory, investment, credit, allowance, or Tax procedures or practices or (ii) increase or change any of the assumptions underlying, or methods of calculating, any bad debt, contingency, or other reserves;

 

(k) (i) make, revoke, or alter any Tax election, settle or compromise any Tax Liability or Tax contest, file any amended Tax Return, file any Tax Return being filed late or file any Tax Return that is not consistent with past practice or surrender any right to claim a Tax refund, offset, or other reduction in Tax Liability, (ii) extend any statute of limitations with respect to any Tax Return,

(iii) enter into any Tax sharing or similar agreement or closing agreement, (iv) assume any Liability for the Taxes of any other Person (whether by Contract or otherwise), or (v) consent to any extension or waiver of the limitation period applicable co any claim or assessment in respect of Taxes;

0) pay, discharge, or satisfy (i) any Liability to any Person who is a manager, officer, director, or member of the Company (other than compensation due for services as a manager, officer, or director) or (ii) any claim or Liability arising other than in the ordinary course of business consistent with past practice, other than the payment, discharge, or satisfaction of Liabilities reflected or reserved against in the Financial Statements, or defer payment of any accounts payable other than in the ordinary course of business consistent with past practice, or give any discount, accommodation, or other concession other than in the ordinary course of business consistent with past practice;

 

 

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any Company Intellectual Property;

 

(g) pay, lend, or advance any amount to, or sell, transfer, license, lease, or otherwise dispose of any properties or assets (real, personal, or mixed, tangible, or intangible) to, the Company's current or former securityholders, debtholders, employees, consultants, or other service providers, or any of their respective Affiliates, other than (i) cash compensation paid to employees, consultants, or other service providers at rates not exceeding the rates of compensation paid during the fiscal year last ended and (ii) advances for travel and other business-related expenses made in the ordinary course of business and consistent with past practice;

 

 

 

 

 

 

 

 

 

 

 

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periods ending on or before the Closing Date. The Acquirer shall provide income Tax Returns of the Company for any Taxable periods ending on or before the Closing Date to the Sole Owner at least 30 days before the due date for such Tax Returns, including any applicable extensions, for the Sole Owner to review and comment, which comments the Acquirer shall not unreasonably refuse to incorporate in the Tax Returns as filed.

 

 

as a reorganization within the meaning of Section 368(a) of the Code. This Agreement is intended to constitute, and the parties hereto hereby adopt this Agreement as, a plan of reorganization within the

meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a). Acquirer, Merger Sub and the Company shall treat and report the Transaction as a reorganization within the meaning of Section 368(a) of the Code (and any comparable state or local tax statute) for all Tax purposes, unless otherwise required pursuant to a "determination" within the meaning of Section 1313(a) of the Code. The provisions of this Section 4.4(d) shall survive the Closing and are intended to be for the benefit of and shall be enforceable by the Sole Owner.

 

 

 

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Straddle Period; provided, however, that the Sole Owner shall not be responsible for any Taxes resulting from Acquirer's or the Company's actions after the Closing on or subsequent to the Closing Date, and (B) in the case of all other Taxes, determined as though the taxable year of the Company terminated at the close of business on the date of the Effective Time. At the time that Acquirer and the Company provide a copy of the Tax Return for any Straddle Period to the Sole Owner pursuant to Section 4.4(b), they shall also provide a statement pursuant to this Section 4.4(£) calculating the amount of Taxes allocable to the portion of such taxable period ending on the Closing Date. Such statement shall be subject to the same review and dispute resolution procedures set forth in Section 4.4(b) for the Tax Return.

 

 

 

 

 

 

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announcement of any inquiry, expression of interest, proposal, or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain, or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal, or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ill) agree to, accept, approve, endorse, or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, (v) submit any Acquisition Proposal to the vote of the Sole Owner, or (vi) enter into any other transaction or series of transactions the consummation of which would impede, interfere with, prevent, or delay, or would reasonably be expected to impede, interfere with, prevent, or delay, the consummation of the Merger or the Transactions. The Company will, and will cause its Representatives to, (y) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the Agreement Date with respect to any Acquisition Proposal and (z) immediately revoke or withdraw access of any Person (other than the Acquirer and its Representatives) to any data room (virtual or actual) containing any non-public information with respect to the Company in connection with an Acquisition Proposal. If any of the Company's Representatives, whether in his or her capacity as such or in any other capacity, takes any action that the Company is obligated pursuant to this Section 4.10 not to authorize or permit such Representative to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section4.10.

"Acquisition Proposal' means, with respect to the Company, any agreement, offer, proposal, or bona fide indication of interest (other than this Agreement or any other offer, proposal or indication of interest by the Acquirer), or any public announcement of intention to enter into any such agreement or of (or intention to make) any offer, proposal or bona fide indication of interest, relating to, or involving: (A) any acquisition or purchase from the Company, or from the Sole Owner, by any Person or Group of any equity interest of the Company or any tender offer or exchange offer that if consummated would result in any Person or Group beneficially owning equity interests of the Company or any merger, consolidation, business combination, or similar transaction involving the Company, (B) any sale, lease, mortgage, pledge, exchange, transfer, license (other than in the ordinary course of business consistent with past practice), acquisition, or disposition of more than 10% of the assets of the Company in any single transaction or series of related transactions, (C) any liquidation, dissolution, recapitalization, or other significant corporate reorganization of the Company, or any extraordinary dividend, whether of cash or other property, or (D) any other transaction the consummation of which would impede, interfere with, prevent, or delay, or would reasonably be expected to impede, interfere with, prevent, or delay, the consummation of the Merger or the other Transactions.

 

 

 

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(ii) promptly furnish such information as the Acquirer may reasonably request in connection with such financial statements or related to the performance of the Acquirer's SEC reporting obligations relating to this Agreement or any of the Transactions.

 

ARTICLEV

CONDITIONS PRECEDENT

 

 

 

 

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such as "material", "materiality", "in all material respects", "1fate.t:ial Adverse Effect", "material and adverse" or any similar term or phrase (other than 2.S(b)) true and correct in all material respects when made and as of the Closing Date as though made on and as of such date (other than representations and warranties that address matters only as of a certain date which shall be true and correct in all material respects as of such certain date)

 

 

 

 

 

 

 

 

 

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of the Transactions shall be permitted by Applicable Law to which the Acquirer, the Merger Sub, and the Company is subject.

 

 

ARTICLE VI

INDEMNIFICATION

 

 

 

such date or dates);

 

 

 

 

 

 

 

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in connection with the Transactions other than as specifically set forth herein, or (C) any Person with respect to any plan, policy, or Contract providing for compensation to any Person in the form of Equity Interests of the Company; or

 

 

 

 

$1,000,000 (the “Indemnity Cap Amount").

 

(z) any failure of the Fundamental Representations to be true and correct) unless and until a Claim Certificate (together with any other delivered Claim Certificates) describing Indemnifiable Damages in an aggregate amount greater than $100,000 (the "Basket') has been delivered, in which case the Acquirer may make claims for indemnification, compensation, and reimbursement and shall cancel shares of the Series S Convertible Preferred Stock issued to the Sole Owner in an amount equal to all such Indemnifiable Damages (subject to the Indemnity Cap Amount) for such matters, less the Basket amount, in each case pursuant to the order set forth in Section 6.7 below. The Basket shall not apply to any other Indemnifiable Damages.

 

 

 

 

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relating to or arising out of Fundamental Representation shall commence at the Closing and terminate on the six (6) year anniversary of the Closing Date, and (iii) for Indemnifiable Damages relating to or arising out of all other matters shall commence at the Closing and terminate on the date that is 60 days following the expiration of the applicable statute of limitations; provided, ho111ever, that (y) no right to indemnification pursuant to Article VI in respect of any claim that is set forth in a Claim Certificate delivered on or prior to the expiration of such representations and warranties shall be affected by such expiration and (z) that such expiration shall not affect the rights of any Indemnified Person under Article VI or otherwise to seek recove1y of Indemnifiable Damages relating to or arising out of Fraud.

 

 

 

(i) stating that an Indemnified Person has incurred, paid, reserved, or accrued, or in good faith believes that it will incur, pay, reserve, or accrue, Indemnifiable Damages;

 

(li) stating the amount of such Indemnifiable Damages (which, in the case of Indemnifiable Damages not yet incurred, paid, reserved, or accrued, may be the maximum amount believed by the Acquirer in good faith to be incurred, paid, reserved, accrued, or demanded by a third party); and

 

 

 

 

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conditioned, or denied its consent to the amount of any such settlement or resolution, the Sole Owner shall not have any power or authority to object under this Article VI to the amount of any claim by or on behalf of any Indemnified Person for indemnity with respect to such settlement or resolution.

 

 

 

 

or by reason of the Indemnified Party's waiver of any condition set forth in Error! Reference source not found.(a).

 

ARTICLE VII

TERMINATION

 

 

 

 

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(cl) by the Company, by written notice to the Acquirer, if there shall have been an inaccuracy in any representation or warranty made by, or a breach of any covenant, agreement, or obligation of, the Acquirer herein and such inaccuracy or breach shall not have been cured within 30 days after receipt by the Acquirer of written notice of such inaccuracy or breach and, if not cured within such 30-day period and at or prior to the Closing, such breach would result in the failure of any of the conditions set forth in Section 5.2 to be satisfied; provided, that no such cure period shall be available or applicable to any such inaccuracy or breach that by its nature cannot be cured.

 

 

ARTICLE VIII

GENERAL PROVISIONS

 

 

 

JanOne Inc.

325E. Wam1Springs ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇

Attention: ▇▇▇▇ ▇▇▇▇▇ Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇ E-mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

 

with a mandatory copy (which shall not constitute notice) to:

 

 

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▇▇▇▇▇ ▇▇▇▇ PLC

▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇

Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇

E-mail: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇

▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ #▇▇▇

Dayton, Ohio 45459 Attention: ▇▇▇▇ ▇▇▇▇ Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇ E-mail: ▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇

with a mandatory copy (which shall not constitute notice) to: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP

▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇

Cincinnati, Ohio 45202-3957 Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇ Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇ E-mail: ▇▇▇@▇▇▇▇▇▇▇.▇▇▇

and

Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇ E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

 

Any notice given as specified in this Section 8.1 (i) if delivered personally or electronic mail transmission (provided that the sender of such e-mail does not receive a written notification of delivery failure) shall conclusively be deemed to have been given or served at the time of dispatch if sent or delivered on a Business Day or, if not sent or delivered on a Business Day, on the next following Business Day, (ii) if sent by commercial delivery service shall conclusively be deemed to have been delivered in accordance with such services' usual delivery terms, but, in no event, later than two Business Days after tender to such commercial delivery service, and (ii) if sent by registered or certified

mail (postage prepaid and return receipt requested) shall conclusively be deemed to have been delivered on the third Business Day after tender to the United States Postal Service.

 

 

 

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forms of such words, (ii) words using the singular or plural number also include the plural or singular number, respectively, (iii) the terms "hereof," "herein," "hereto," "hereunder," and derivative or similar words refer to this entire Agreement, (iv) references to clauses without a cross-reference to a Section or subsection are references to clauses within the same Section or, if more specific, subsection,

(v) references to a series of clauses are inclusive of the endpoint clauses (e.g., "clause (x) through (y)" is inclusive of clauses (x) and (y)), (vi) references to any Person include the predecessors, successors, and permitted assigns of that Person, (vii) references from or through any date shall mean, unless otherwise specified, from and including or through and including, respectively, and (viii) the phrases "provide to," "made available," and "deliver to" and phrases of similar import shall mean that a true, correct, and complete paper or electronic copy of the information or material referenced has been delivered to the party to whom such information or material is to be provided. The symbol "$" refers to United States Dollars. The word "extent'' in the phrase "to the extent" means the degree to which a subject or other thing extends and such phrase shall not mean simply "if." All references to "days" shall be to calendar days unless otherwise indicated as a ''Business Day." Any action otherwise required to be taken on a day that is not a Business Day shall instead be required to be taken on the next succeeding Business Day and, if the last day of a time period is a non-Business Day, such period shall be deemed to end on the next succeeding Business Day. Unless indicated otherwise, all mathematical calculations contemplated by this Agreement shall be rounded to the fifth decimal place, except in respect of payments, which shall be rounded to the nearest whole United States cent.

 

 

 

 

(a) constitute the entire agreement among the parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties

 

 

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hereto with respect to the subject matter hereof, except for the Confidentiality Agreement, which shall continue in full force and effect, and shall survive any termination of this Agreement in accordance with its terms and (b) are not intended to confer, and shall not be construed as conferring, upon any Person other than the parties hereto any rights or remedies hereunder (except that Article VI is intended to benefit the Indemnified Persons).

 

 

 

 

 

 

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or proceeding for the interpretation or enforcement hereof or thereof, that it is not subject thereto or that such action, suit, or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement or any such document may not be enforced in or by such courts. Further, the parties hereto irrevocably agree that all claims with respect to such action or proceeding shall be heard and determined in such Delaware Courts. The parties hereto hereby consent to and grant any such court jurisdiction over the person of such parties and over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 8.1 or in such other manner as may be permitted by Applicable Law, shall be valid and sufficient service thereof. A party hereto may apply either to a court: of competent jurisdiction for prejudgment remedies and emergency relief pending final determination of a claim pursuant to this Section 8.10.

 

 

[SIGNATURE PAGES NEXT]

 

 

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IN WTINESS WHEREOF, the Acquirer, the Merger Sub, the Company, and the Sole Owner have each caused this Agreement and Plan of Merger to be executed and delivered by thei.t respective managers, officers thereunto duly authorized or by an individual, as relevant, all as of the date first written above.

 

JANONEINC.

 

 

 

 

By: .,▇▇▇▇ ▇▇▇▇▇, Chief Executive 0-cer"

STI MERGER SUB INC.

 

 

By,---?

▇▇▇▇ ▇▇▇▇▇, Chief Executive Officer

 

 

[Signature Page to Agreement and Plan of Merger]

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IN WITNESS WHEREOF, tl1e Acquirer, the Merger Sub, the Company, and the Sole Owner have each caused this Agreement and Plan of Merger to be executed and delivered by their respective managers or officers thereunto duly authorized or by an individual, as relevant, all as of the date first written above.

 

SOIN THERAPEUTICS, LLC

 

 

[Signature Page to Agreement and Plan of Merger]

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EXHIBIT A

 

Definitions

 

As used herein, the following terms shall have the meanings indicated below:

 

"Acquirer Common Stock” means the shares of Common Stock, $0.001 par value per share, of the Acquirer.

 

"Affiliate' means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such Person, including any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such Person, in each case as of the date on which, or at any time during the period for which, the determination of affiliation is being made. For purposes of this definition, the term "control" (including the correlative meanings of the terms "controlled by" and "under common control with"), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities or by Contract or otherwise.

 

"Applicable Law' means, with respect to any Person, any federal, state, foreign, local, municipal or other law, statute, constitution, legislation, principle of common law, resolution, ordinance, code, edict, decree, rule, directive, guidance, license, permit, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity and any Orders applicable to such Person or such Person's Affiliates or to any of their respective assets, properties or businesses.

 

"Business” means the business of the Company as currently conducted, including the design, development, operation, production, marketing, sale, resale, licensing, and distribution of a low-dose naltrexone for treating chronic regional pain syndrome.

"Business Day' means a day (i) other than Saturday or Sunday and (ii) on which commercial banks are open for business in Las Vegas, Nevada or Dayton, Ohio.

 

"CARES Act' shall mean the Coronavirus Aid, Relief, and Economic Security Act.

 

"Code' means the United States Internal Revenue Code of 1986, as amended.

 

"Company Cash” means the aggregate amount of unrestricted cash and cash equivalents of the Company as of the Closing.

 

"Company Closing Financial Certificate' means a certificate, in the form attached hereto for informational purposes only as Exhibit C, executed and delivered by an officer of the Company and dated as of the Closing Date, certifying, as of the Closing, the amount of (i) Company Cash, and (ii) Company Debt, including an itemized list of each item of Company Debt with a description of the nature of such Company Debt and the Person to whom such Company Debt is owed.

 

 

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"Company Debt' means, without duplication: (i) all obligations (including the principal amount thereof or, if applicable, the accreted amount thereof and the amount of accrued and unpaid interest thereon) of the Company, whether or not represented by bonds, debentures, notes, or other securities (whether or not convertible into any other security), for the repayment of money borrowed, whether owing to banks, financial institutions, on equipment leases, or otherwise, (ii) all deferred indebtedness of the Company for the payment of the purchase price of property or assets purchased (other than accounts payable incurred in the ordinary course of business), (iii) all obligations of the Company to pay rent or other payment amounts under a lease that is required to be classified as a capital lease or a liability on the face of a balance sheet prepared in accordance with GAAP, (iv) all outstanding reimbursement obligations of the Company with respect to letters of credit, bankers' acceptances, or similar facilities issued for the account of the Company, (v) all obligations of the Company under any interest rate swap agreement, forward rate agreement, interest rate cap or collar agreement, or other financial agreement or arrangement entered into for the purpose of limiting or managing interest rate risks, (vi) all obligations secured by any Encumbrance existing on property owned by the Company, whether or not indebtedness secured thereby will have been assumed, (vii) all premiums, penalties, fees, expenses, breakage costs, and change of control payments required to be paid or offered in respect of any of the foregoing on prepayment (regardless if any of such are actually paid), as a result of the consummation of the Transactions or in connection with any lender consent, (viii) all underfunded liabilities, assuming contingencies are satisfied, under any Company Employee Plans, including defined benefit plans, or due to the application of any terms contemplated or agreed upon with any labor organization or similar arrangement, including the employer portion of any related payroll taxes with respect thereto, (ix) all guaranties, endorsements, assumptions, and other contingent obligations of the Company in respect of, or to purchase or to otherwise acquire, any of the obligations and other matters of the kind described in any of the clauses (i) through (viii) appertaining to third parties, and (x) all Pre-Closing Taxes and any other liabilities for Taxes incurred through or in accordance with the Closing (including the employer portion of employment-related Taxes arising in connection with any payment required pursuant to, o:r arising as a result of, this Agreement or the Transactions, and including any such Taxes that have been deferred pursuant to the CARES Act and any related interest), whether or not such liabilities for Taxes would be then due.

"Company Membership Interests' means, collectively, the membership interests of the Company and any other Equity Interests of the Company.

 

"Company Transaction Documents' means, collectively, this Agreement and each other Transaction Document to which the Company is or will be a party.

"Contract' means any written or oral legally binding contract, agreement, instrument, commitment, or undertaking of any nature (including leases, subleases, licenses, mortgages, notes, guarantees, sublicenses, subcontracts, letters of intent, and purchase orders).

"COVID-19' means the novel coronavirus 2019 referred to as COVID-19 and all

variants.

 

"COVID-19 Pandemic' means the epidemic, pandemic, or disease outbreak

associated with COVID-19.

 

"DGCE' means the General Corporation Law of the State of Delaware.

 

"DLLC' means Delaware's Limited Liability Company Act, 6 Del.C. § 18-101, et seq.

 

 

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"Encumbrance' means, with respect to any asset, any mortgage, easement, encroachment, equitable interest, right of way, deed of trust, lien (statutory or other), pledge, charge, security interest, title retention device, conditional sale or other security arrangement, or collateral assignment.

 

"Equity Interests' means, with respect to any Person, any capital stock of, or other ownership, membership, partnership, joint venture, or equity interest in, such Person or any indebtedness, securities, options, warrants, call, subscription, or other rights or entitlements of, or granted by, such Person or any of its Affiliates that are convertible into, or are exercisable or exchangeable for, or giving any Person any right or entitlement to acquire any such capital stock or other ownership, partnership, joint venture, or equity interest, in all cases, whether vested or unvested.

 

"Exchange Ad' means the Securities Exchange Act of 1934, as amended.

"Fundamental Representations' means the representations and warranties made by the Company in Section 2.1, but excluding the representations and warranties in the second sentence of Section 2.1 relating to foreign qualifications (Organization, Standing, Power, and Subsidiaries), Section 2.2(a) (Capital Structure), Section 2.3(a) (Authority), Section 2.9(a) (Title to, Condition and Sufficiency of, Assets; Real Property), and Section 2.17 (Transaction Fees) of this Agreement, including in any certificate delivered to the Acquirer pursuant to this Agreement that are within the scope of those covered by the foregoing Sections.

 

"Governing Documents" means, collectively, with respect to an entity, the entity's articles of incorporation, articles of organization, certificate of incorporation, certificate of formation, charter, bylaws, operating agreement, company agreement, or other certificates, instruments, documents, or agreements adopted to govern the formation or internal affairs of the entity, as applicable, including any and all amendments or restatements to such documents.

"Government Official' means (i) any official, employee, agent or representative of, or any Person acting in an official capacity for or on behalf of, any Governmental Entity, (ii) any political party, political party official, or candidate for political office, (iii) any official, employee, agent, or representative of, or any Person acting in an official capacity for or on behalf of, a company, business, enterprise, or other entity owned, in whole or in part, or controlled by any Governmental Entity or (iv) any official, employee, agent, or representative of, or any Person acting in an official capacity for or on behalf of, a public international organization.

 

"Governmental Entity' means any supranational, national, state, municipal, local, or foreign government, any court, tribunal, arbitrator, administrative agency, commission, regulatory authority, or other Government Official, authority, or instrumentality, in each case whether domestic or foreign, any stock exchange, local or supranational central bank or similar self-regulatory organization, or any quasi-governmental or private body exercising any executive, legislative, judicial, regulatory, Taxing, or other functions of, or pertaining to, government authority (including any governmental or political division, department, agency, commission, instrumentality, official, organization, unit, body or entity, and any court or other tribunal).

 

"Governmental Order' means any Order made, issued, or entered by or with any Governmental Entity.

 

"Group' has the meaning ascribed to such term under Section 13(cl) of the Exchange Act, the rules and regulations thereunder, and related case law.

 

 

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"IRS' means the United States Internal Revenue Service.

"knowledge' or "Knowledge' means, with respect to any fact, circumstance, event, or other matter in question, the actual knowledge of such fact, circumstance, event, or other matter, after reasonable inquiry, of (i) an individual, if used in reference to an individual or (ii) with respect to any Person that is not an individual, the executive officers of such Person.

 

"Legal Proceeding' means any private or governmental action, inquiry, claim, counterclaim, proceeding, suit, hearing, litigation, audit, or investigation, in each case whether civil, criminal, administrative, judicial, or investigative, or any appeal therefrom.

 

"Liabilities' (and, with correlative meaning, "Liability') means all debts, liabilities, commitments, and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, determined or determinable, liquidated or unliquidated, asserted or unasserted, known or unknown, whenever or however arising, including those arising under Applicable Law or any Legal Proceeding or Order of a Governmental Entity and those arising under any Contract, regardless of whether such debt, liability, commitment, or obligation would be required to be reflected on a balance sheet prepared in accordance with GAAP or disclosed in the notes thereto.

 

"Material Adverse Effect' means, with respect to any Person, any change, event, violation, inaccuracy, circumstance, or effect (each, an "Effect') that, individually or taken together with all other Effects, and regardless of whether such Effect constitutes an inaccuracy in the representations or warranties made by, or a breach of the covenants, agreements, or obligations of, such Person herein, is, or would reasonably be likely to be or become, materially adverse in relation

to the near-term or longer-term condition (financial or otherwise), assets (including intangible assets), liabilities, business, ope1-ati.ons, or results of operations of such Person and its subsidiaries (taken as a whole), except to the extent that any such Effect results from (i) any change, effect, or circumstance resulting from an action required or permitted by this Agreement, (ii) any change, effect, or circumstance resulting from the announcement of this Agreement, (ill) any change in general economic conditions, (iv) any change affecting the industry generally in which such Person operates,

(v) any change in Applicable Law, (vi) any condition caused by acts of terrorism or war (whether or

not declared) or any natural or man-made disaster or acts of God (including the COVID-19 Pandemic, any other pandemic, and any governmental response thereto); and (vii) any change in accounting principles; provided, that, in each case of clauses (i) - (vi), such changes do not affect such Person disproportionately as compared to such Person's competitors.

 

 

 

"Order' means any judgment, writ, decree, stipulation, determination, decision, award, rule, preliminary or permanent injunction, temporary restraining order, or other order.

 

"Permitted Encumbrances' means: (i) statutory liens for current Taxes that are not yet due and payable or liens for Taxes being contested in good faith by appropriate proceedings, (ii) statutory liens to secure obligations to landlords, lessors, or renters under leases or rental agreements, (iii) deposits or pledges made in connection with, or to secure payment of, workers' compensation, unemployment insurance, or similar programs mandated by Applicable Law, (iv) statutory liens in favor of carriers, warehousemen, mechanics, and materialmen, to secure claims for labor, materials or supplies, and other like liens, (v) liens in favor of customs and revenue authorities arising as a matter of Applicable Law to secure payments of customs duties in connection with the importation of goods,

 

 

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and (vi) transfer restrictions encumbering the Company Membership Interests under any relevant agreements and under applicable securities laws.

 

"Person'' means any natural person, company, corporation, limited liability company, general partnership, limited partnership, limited liability partnership, trust, estate, proprietorship, joint venture, business organization, Governmental Entity, or other entity.

 

"Personal Data" means any information that identifies, describes, relates to, is capable of being associated with, could reasonably be linked, directly or indirectly, with an identified or identifiable natural person or household, including a name, an identification number, unique personal identifier, biometric information, probabilistic identifier, location data, commercial information including products or services purchased, obtained, or considered, or other purchasing or consuming histories or tendencies, professional-, educational-, or employment-related information, inferences drawn from personal information and used to create a profile, Internet or other electronic network activity information, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, political, or social identity of that natural person, or any other piece of information that allows the identification of a natural person or is otherwise considered personally identifiable information, sensitive data, special categories of personal data, or personal information under Applicable Law, including Tracking Data.

 

'' Pre-Closing Taxes' means any (i) Taxes of the Company for a Pre-Closing Tax Period, (ii) Taxes of the Sole Owner (including capital gains Taxes arising as a result of the Transactions) or any of their Affiliates (excluding the Company) for any Tax period, (iii) Taxes for which the Company (or any predecessor of the foregoing) is held liable under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign law) by reason of such entity being included in any consolidated, affiliated, combined, or unitary group at any time on or before the Closing Date, and (iv) Taxes of any other Person for which the Company is liable if the agreement, event, or occurrence giving rise to such Liability occurred on or before the Closing Date. Notwithstanding anything to this Agreement to the contrary, Pre-Closing Taxes includes any payroll taxes and other Taxes of the Company arising in connection with any payment required pursuant to, or arising as a result of, this Agreement or the Transactions, whether or not such Tues are due and payable as of the Closing Date (and, for the avoidance of doubt, shall include any such Taxes that were deferred pursuant to the CARES Act).

 

"Pre-Closing Tax Period' means any Taxable period (or portion thereof) ending on or prior to the Closing Date.

 

"Representatives' means, with respect to a Person, such Person's managers, members, officers, directors, Affiliates, equity holders, or employees, or any investment banker, attorney, accountant, auditor, or other advisor or representative retained by any of them.

 

"SEC” means the United States Securities and Exchange Commission.

 

"Securities Act” means the Securities Act of 1933, as amended.

 

"Tax” (and, with correlative meaning, "Taxes' and "Taxable”) means (i) any net income, alternative, or add-on minimum tax, gross income, estimated, gross receipts, sales, use, ad valorem, value-added, transfer, franchise, fringe benefit, capital stock, profits, license, registration, withholding, payroll, social security (or equivalent), employment, unemployment, disability, excise, severance, stamp, occupation, premium, property (real, tangible, or intangible), environmental, or windfall profit tax, custom duty, imputed underpayment, or other tax, governmental fee, or other like

 

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assessment or charge of any kind whatsoever, together with any interest or any penalty, addition to tax, or additional amount (whether disputed or not) imposed by any Governmental Entity having or purporting to have responsibility for the imposition of any such tax (domestic or foreign) (each, a "Tax Authority”), (ii) any Liability for the payment of any amounts of the type described in clause (i) of this sentence as a result of being a member of an affiliated, consolidated, combined, unitary or aggregate group for any Taxable period, and (iii) any Liability for the payment of any amounts of the type described in clauses Q) or (ii) of this sentence as a result of being a transferee of or successor to any Person or as a result of any express or implied obligation to assume such Taxes or to indemnify any other Person.

 

"Tax Deductions' means the aggregate amount of any income Tax deductions attributable to (i) the Transaction Expenses, (ii) any business interest deduction carryforward pursuant to Section 163Q)(2) of the Code, and (iii) any "net operating loss" within the meaning of Section 172(c) of the Code (or any similar provision of state, local, or foreign law) of the Company with respect to any Pre-Closing Tax Period that is not attributable to any of the other subclauses in this defined term and is available to be carried forward to any Tax year or period (or portion thereof) of the Acquirer or its Affiliates (including the Company after the Closing Date) beginning after the Closing Date.

 

"Tax Return' means any return, statement, report, or form (including estimated Tax returns and reports, withholding Tax returns and reports, any schedule or attachment, and information returns, and reports), including any amendment thereof, filed or required to be filed with respect to Truces.

 

"Tracking Data" means (i) any .information or data collected in relation to online, artificial intelligence, or machine model training, mobile, or other electronic activities or communications to the extent that it can reasonably be associated, directly or indirectly, with a particular Person, user, computer, mobile, or other device, or instance of any application or mobile application, (ii) any information or data collected in relation to off-line activities or communications that can reasonably be associated, directly or indirectly, with or that derives from a particular Person, user, computer, mobile, or other device or instance of any application or mobile application, or (iii) any device or network identifier (including IP address or MAC address), device activity data, or data collected from a networked physical object.

"Transaction Document ' means, collectively, this Agreement and each other agreement or document referred to in this Agreement or to be executed in connection with any of the Transactions.

 

"Transaction Expense5' means all third-party fees, costs, expenses, payments, and expenditures incurred by or on behalf of the Company in connection with this Agreement and the Transactions, whether or not .incurred, billed, or accrued, including (1) any fees, costs, expenses, payments, and expenditures of legal counsel and accountants, (ii) the maximum amount of fees, costs, expenses, payments, and expenditures payable to brokers, finders, financial advisors, investment bankers, or similar Persons notwithstanding any future conversion rights in respect of shares of the Series S Convertible Preferred Stock, or other contingencies, (iii) all bonuses, severance obligations, or other compensatory amounts owed by the Company to any of their respective members, directors, officers, employees, and/or consultants in connection with the Transactions, that are unpaid as of the Closing and the employer portion of any related payroll truces with respect thereto, and (iv) any such fees, costs, expenses, payments, and expenditures incurred by Company members paid for or to be paid for by the Company.

 

 

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"Treasury Regulations' means the United States Treasury regulations promulgated under the Code.

 

 

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EXHIBITB

 

Certificate of Merger

 

[Please see attached.]

 

 

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EXHIBITC

 

 

[RESERVED]

 

 

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EXHIBITD

 

Required Actions

 

Filing of IRS Form 8332

 

 

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EXHIBITE

 

Certificate of Designation of Series S Convertible Preferred Stock

 

[Please see attached.]

 

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