CUSIP No. 17331Y109
Page 1 of 8 Pages
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ___)*
Citius Oncology, Inc.
(Name of Issuer)
Common Shares, $0.0001 par value per share
(Title of Class of Securities)
17331Y109
(CUSIP Number)
Leonard L. Mazur
Chief Executive Officer
11 Cranford Drive, 1st Floor
Cranford, New Jersey 07016
(908) 967-6677
with a copy to:
Alexander M. Donaldson, Esq.
Lorna A. Knick, Esq.
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
919-781-4000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 12, 2024
(Date of Event Which Requires Filing of This
Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f)
or 240.13d-1(g), check the following box. ☐
Note: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
| * | The remainder of this cover page shall be filled out for
a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP No. 17331Y109
Page 2 of 8 Pages
(1) |
|
Names of reporting persons
Citius Pharmaceuticals, Inc. |
(2) |
|
Check the appropriate box if a member of a group (see instructions)
(a) ☐ (b)
☐
Not Applicable |
(3) |
|
SEC use only
|
(4) |
|
Source of funds (see instructions)
OO(1) |
(5) |
|
Check if disclosure of legal proceedings is required pursuant
to Items 2(d) or 2(e)
Not Applicable |
(6) |
|
Citizenship or place or organization
Nevada |
Number of
shares
beneficially
owned by
each
reporting
person
with:
|
|
(7) |
|
Sole voting power
66,049,615 |
|
(8) |
|
Shared voting power
0 |
|
(9) |
|
Sole dispositive power
66,049,615 |
|
(10) |
|
Shared dispositive power
0 |
(11) |
|
Aggregate amount beneficially owned by each reporting person
66,049,615 |
(12) |
|
Check if the aggregate amount in Row (11) excludes certain shares
(see instructions)
|
(13) |
|
Percent of class represented by amount in Row (11)
92.6%(1) |
(14) |
|
Type of reporting person (see instructions)
CO |
|
(1) |
65,627,262 shares of Issuer Common Stock (as defined below) were acquired pursuant to the Agreement and Plan of Merger and Reorganization, dated as of October 23, 2023 (the “Merger Agreement”), by and among Citius Pharmaceuticals, Inc., a Nevada corporation (“Citius Pharma”), Citius Oncology, Inc., a Delaware corporation (now known as Citius Oncology Sub, Inc., “SpinCo”), TenX Keane Acquisition (now Citius Oncology, Inc., a Delaware corporation, the “Issuer”) and TenX Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of TenX Keane Acquisition. Pursuant to the Merger Agreement, at Closing (as defined in Item 3 below), the existing common stock of SpinCo, par value $0.0001 per share, all held by Citius Pharma, automatically converted into the right to receive an aggregate of 65,627,262 shares of Issuer Common Stock. Additionally, prior to the Closing, Citius Pharma purchased $1,077,026 of outstanding publicly traded rights of TenX Keane Acquisition, each such right representing the right to receive two-tenths of one TenX ordinary share, which automatically converted into an aggregate of 422,353 shares of Issuer Common Stock upon Closing. |
|
(2) |
The calculation of this percentage is based on an aggregate of 71,304,049 shares of Issuer Common Stock outstanding as of August 12, 2024. |
CUSIP No. 17331Y109
Page 3 of 8 Pages
SCHEDULE 13D
Item 1. Security and Issuer.
This statement on Schedule 13D (this “Statement”) relates
to common stock, par value $0.0001 per share, (the “Issuer Common Stock”), of Citius Oncology, Inc., a Delaware company (the
“Issuer” or “Citius Oncology”). Citius Oncology has its principal executive office at 11 Commerce Drive, 1st
Floor, Cranford, NJ.
Item 2. Identity and Background.
This statement is being filed by:
(a)-(c) Citius Pharmaceuticals, Inc., a Nevada corporation (the “Reporting
Person”), has a principal place of business at 11 Cranford Drive, 1st Floor, Cranford, New Jersey 07016. Citius Pharmaceuticals,
Inc. is a biopharmaceutical company dedicated to the development and commercialization of first-in-class critical care products.
(d) During the last five years, to the best of the knowledge of the
Reporting Person, none of the Reporting Person’s directors or executive officers (i) has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (ii) was a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such
laws.
(e) During the last five years, neither the Reporting Person, nor the
Reporting Person’s directors or executive officers (i) has been convicted in a criminal proceeding or (ii) was a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
(f) The Reporting Person is a Nevada corporation.
In accordance with the provisions of General Instruction C to Schedule
13D, information concerning the executive officers and members of the board of directors of the Reporting Person (collectively, the “Listed
Persons”), required by Item 2 of Schedule 13D is provided on Schedule 1 and is incorporated by reference herein. To the Reporting
Person’s knowledge, none of the persons listed on Schedule 1 as a director or executive officer of Citius Pharma has been, during
the last five years, (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or (ii) a party to
a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such laws. Each of the directors and executive officers of the Reporting Person
is a United States citizen.
Item 3. Source and Amount of Funds or Other Consideration.
The information set forth or incorporated by reference
in Item 6 of this Statement is incorporated by reference into this Item 3. On August 12, 2024, the Issuer completed the previously announced
business combination (the “Closing”) pursuant to that certain Merger Agreement and the related transaction documents described
therein, and among other things, upon Closing, Citius Pharma (formerly SpinCo’s sole shareholder) received 66,049,615 shares of
Issuer Common Stock (the “Business Combination”) in exchange for all of the shares of SpinCo. Prior to the Business Combination,
Citius Pharma purchased $1,077,026 of outstanding publicly traded rights of TenX Keane Acquisition in cash, each such right representing
the right to receive two-tenths of one TenX ordinary share, which automatically converted into an aggregate of 422,353 shares of Issuer
Common Stock upon Closing (the “Rights Purchase”).
CUSIP No. 17331Y109
Page 4 of 8 Pages
Item 4. Purpose of Transaction.
The information set forth or incorporated by reference
in Item 6 of this Statement is incorporated by reference into this Item 4. All of the Issuer Common Stock reported on this Statement were
acquired pursuant to (i) the Rights Purchase and (ii) in connection with the Business Combination, pursuant to the Merger Agreement. The
number of shares of Issuer Common Stock issued in connection with the Business Combination was equal to the Base Exchange Ratio (as defined
by the Merger Agreement), which was the quotient obtained by dividing (x) 67,500,000 by (y) the aggregate number of shares of SpinCo Common
Stock outstanding as of immediately prior to the effective time, less 1,872,738 shares of Issuer Common Stock issued as payment for financial
advisory fees. Citius Pharma intends to retain a controlling stake in the Issuer and exercise significant influence over the business
and operations of the Issuer until such time as Citius Pharma may seek to effectuate a distribution of the Issuer Common Stock to the
stockholders of Citius Pharma or another extraordinary corporate transaction, such as a merger, reorganization or otherwise, involving
the Issuer. Such a transaction may result in any of the items described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.
As of the date hereof, the directors and officers of Citius Pharma
are substantially the same as the directors and executive officers of the Issuer. Citius Pharma, as the controlling shareholder of the
Issuer, and its respective directors and executive officers who are also directors and executive officers of the Issuer, shall have influence
over the corporate activities of the Issuer, including activities which may relate to items described in subparagraphs (a) through (j)
of Item 4 of Schedule 13D.
The Reporting Person intends to further assess its investment in the
Issuer from time to time, on the basis of various factors, including, without limitation, the Issuer’s business performance, financial
condition, results of operations and prospects, general economic, market and industry conditions, as well as other developments and other
investment opportunities available to the Reporting Person and the Issuer. The Reporting Person seeks to maximize the value of its investment
in the Issuer. If the Reporting Person believes that further investment in the Issuer is attractive, the Reporting Person may acquire
(or seek to acquire) Issuer Common Stock or other securities of the Issuer or interests in the assets or businesses of the Issuer. Similarly,
the Reporting Person may determine to dispose of some or all of the Issuer Common Stock currently owned by the Reporting Person.
Depending upon the foregoing factors or any other factors that the
Reporting Person may deem relevant, the Reporting Person may (i) acquire additional securities of the Issuer in open market transactions
or privately negotiated transactions, (ii) make a proposal or proposals to acquire more (or potentially all) of the equity interests in
the Issuer, including, without limitation, directly from certain (or potentially all) of the security holders of the Issuer, and make
a shareholder proposal or proposals to request that the Issuer consider one or more extraordinary transactions, such as a merger (which
transactions may cause the Issuer to be deregistered under the Securities Act of 1933, as amended), (iii) dispose of part or all of its
investment in the Issuer in open market transactions, privately negotiated transactions, via extraordinary transactions such as a merger
or otherwise, and/or (iv) acquire assets or businesses of the Issuer or its subsidiaries, or an interest in assets or businesses of the
Issuer or its subsidiaries, in each case including, without limitation, through the formation of a joint venture, strategic partnership
or otherwise. Any acquisition or disposition may be effected by the Reporting Person at any time without prior notice, subject to applicable
law.
Except as disclosed in this Item 4, neither the Reporting Person nor,
to the best knowledge of the Reporting Person, without independent verification, any of the persons listed in Schedule I hereto, currently
has any plan or proposal that relates to, or would result in, any of the matters listed in Items 4(a)–(j) of Schedule 13D, although
the Reporting Person may, at any time and from time to time, review or reconsider its position and/or change its purpose and/or formulate
plans or proposals with respect thereto, as the Reporting Person may deem advisable in its sole discretion. The information set forth
in this Item 4 is subject to change from time to time and at any time, and there can be no assurances that the Reporting Person will or
will not take, or cause to be taken, any of the actions described above or any similar actions.
Item 5. Interest in Securities of the Issuer.
The responses of the Reporting Person to Rows (7) through (13) of its
cover pages to this Statement are incorporated herein by reference.
CUSIP No. 17331Y109
Page 5 of 8 Pages
The Reporting Person holds all 66,049,615 shares of
Issuer Common Stock directly, which represents approximately 92.6% of the Issuer Common Stock issued and outstanding. The percent of Issuer
Common Stock owned by the Reporting Person was calculated assuming 71,304,049 shares of Issuer Common Stock are issued and outstanding
as of the Closing on August 12, 2024. Schedule I lists the beneficially ownership of Issuer Common Stock by the directors and executive
officers of the Reporting Person. Aside from the Reporting Person’s acquisition of Issuer Common Stock pursuant to the Rights Purchase
and the Merger Agreement, the Reporting Person and, to the best knowledge of the Reporting Person, the directors and executive officers
of the Reporting Person have not effected any other transactions in the shares of the Issuer during the past 60 days.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to the Securities of the Issuer.
Merger Agreement
On August 12, 2024, the Issuer was formed and became a publicly traded
company pursuant to the Business Combination contemplated by the Merger Agreement. As described above, as consideration for the transactions
contemplated in the Merger Agreement, Citius Pharma, the sole shareholder of SpinCo, received 65,627,262 shares of Issuer Common Stock.
In connection with the Closing of the Business Combination, Citius
Pharma contributed to the Issuer $10 million, which was comprised of $3,800,111 in working capital of Issuer post-Closing, funding $6,199,889
of transaction expenses of the parties to the Merger Agreement, and $1,077,026 for the purchase of TenX rights by Citius Pharma prior
to the Closing of the transaction (which converted into 422,353 shares of Issuer Common Stock at Closing). Pursuant to the Merger Agreement,
Citius Pharma appointed the initial executive officers of the Issuer and seven of the eight initial members of the Board.
The foregoing description of the Merger Agreement does not purport
to be complete and is qualified in its entirety by reference to the full text of Merger Agreement, which is included as Exhibit 99.1.
and 99.2 to this Statement and incorporated herein by reference.
Amended & Restated Registration Rights Agreement
Concurrently with the completion of the Business Combination, the Issuer,
the Sponsor (as defined in the Merger Agreement), and Citius Pharma entered into the Amended & Restated Registration Rights Agreement
(the “A&R Registration Rights Agreement”). Pursuant to the A&R Registration Rights Agreement, the holders of Registrable
Securities (as such term is defined in the A&R Registration Rights Agreement) will be entitled to up to three demand registrations,
which will require the Issuer to effect the registration of all Registrable Securities as requested by the holders within 60 days of receipt
of such demand registration. In addition, the holders of Registrable Securities have certain customary “piggyback” registration
rights with respect to registration statements filed subsequent to the completion of the Business Combination. In addition, the Issuer
agreed to use its commercially reasonable efforts to file a registration statement for the resale of any or all of an individual holder’s
Registrable Securities, as requested in writing by such holder, within 120 days of the date of the A&R Registration Rights Agreement.
Additionally, the Sponsor and Citius Pharma have restrictions on transferring
Issuer Common Stock (or any security convertible into, or exercisable or exchangeable for Issuer Common Stock) beginning at Closing until
the date that is six months after Closing; provided that the restrictions may be lifted early if (a) the price of the Issuer Common Stock
equals or exceeds $12.00 per share for any 20 trading days within any 30-day trading period, or (b) the Issuer completes a transaction
that results in public shareholders having the right to exchange their Issuer Common Stock for cash, securities or other property.
The foregoing description of the A&R Registration Rights Agreement
does not purport to be complete and is qualified in its entirety by reference to the full text of the A&R Registration Rights Agreement,
a form of which is included as Exhibit 99.3 to this Statement and incorporated herein by reference.
CUSIP No. 17331Y109
Page 6 of 8 Pages
Item 7. Materials to be Filed as Exhibits.
Exhibit No. |
|
Description |
99.1 |
|
Agreement and Plan of Merger and Reorganization, dated as of October 23, 2023, by and among Citius Pharmaceuticals, Inc., Citius Oncology, Inc., TenX Keane Acquisition and TenX Merger Sub, Inc. |
|
|
|
99.2 |
|
Side Letter Agreement, dated as of August 12, 2024, by and by and among Citius Pharmaceuticals, Inc., Citius Oncology, Inc., TenX Keane Acquisition and TenX Merger Sub, Inc. |
|
|
|
99.3 |
|
Amended and Restated Registration Rights Agreement, dated as of August 12, 2024, by and between Citius Oncology, Inc. and the signatories thereto. |
|
|
|
CUSIP No. 17331Y109
Page 7 of 8 Pages
Signatures
After reasonable inquiry and to the best knowledge and belief of the
undersigned, such person certifies that the information set forth in this Statement with respect to such person is true, complete and
correct.
|
CITIUS PHARMACEUTICALS, INC. |
|
|
Date: August 16, 2024 |
By: |
/s/ Leonard Mazur |
|
Name: |
Leonard Mazur |
|
Title: |
Chairman and Chief Executive Officer |
CUSIP No. 17331Y109
Page 8 of 8 Pages
Schedule I
Directors and Executive Officers
The business address of each director and executive officer of each
Reporting Person is c/o Citius Pharmaceuticals, Inc., 11 Commerce Drive, 1st Floor, Cranford, NJ.
Citius Pharmaceuticals, Inc.
Name and Positions
Leonard Mazur, Co-Founder, Chief Executive
Officer and Chairman of Citius Pharmaceuticals, Inc.
| ● | Mr. Mazur’s beneficial ownership consists of 1,233,333 shares of
Issuer Common Stock that Mr. Mazur has the right to acquire pursuant to outstanding options that are exercisable within 60 days of August
12, 2024. |
Myron Holubiak, Co-Founder
and Executive Vice Chairman of Citius Pharmaceuticals, Inc.
Former Chief Executive Officer of Citius
Pharmaceuticals, Inc.
| ● | Mr. Holubiak’s beneficial ownership consists of 500,000 shares of
Issuer Common Stock that Mr. Holubiak has the right to acquire pursuant to outstanding options that are exercisable within 60 days of
August 12, 2024. |
Jaime Bartushak, Chief Financial Officer
and Chief Business Officer of Citius Pharmaceuticals, Inc.
| ● | Mr. Bartushak’s beneficial ownership consists of 466,667 shares of
Issuer Common Stock that Mr. Bartushak has the right to acquire pursuant to outstanding options that are exercisable within 60 days of
August 12, 2024. |
Myron S. Czuczman, MD, Chief
Medical Officer and Executive Vice President of Citius Pharmaceuticals, Inc.
| ● | Dr. Czuczman’s beneficial ownership consists of 466,667 shares of
Issuer Common Stock that Dr. Czuczman has the right to acquire pursuant to outstanding options that are exercisable within 60 days of
August 12, 2024. |
Suren Dutia, Director of Citius
Pharmaceuticals, Inc.
Senior Fellow of the Ewing Mario Kauffman
Foundation and
Senior Fellow of Skandalaris Center
for Entrepreneurial Studies at Washington University, St. Louis
| ● | Mr. Dutia’s beneficial ownership consists of 150,000
shares of Issuer Common Stock that Mr. Dutia has the right to acquire pursuant to outstanding options that are exercisable within 60
days of August 12, 2024. |
Eugene Holuka, MD Director
of Citius Pharmaceuticals, Inc.
Diplomate of the American Board of
Internal Medicine and Medical Director of the Bay Street Health Care Center,
Adjunct Clinical Professor at the
Touro College of Osteopathy, and
Physician at Staten Island University
Hospital
| ● | Dr. Holuka’s beneficial ownership consists of 150,000
shares of Issuer Common Stock that Dr. Holuka has the right to acquire pursuant to outstanding options that are exercisable within 60
days of August 12, 2024. |
Dennis McGrath, Director of
Citius Pharmaceuticals, Inc.
President and Chief Financial Officer,
PAVmed, Inc.
| ● | Mr. McGrath’s beneficial ownership consists of 150,000
shares of Issuer Common Stock that Mr. McGrath has the right to acquire pursuant to outstanding options that are exercisable within 60
days of August 12, 2024. |
Robert Smith, Director of Citius
Pharmaceuticals, Inc.
Senior Vice President, Global Gene
Therapy Business, Pfizer Inc.
| ● | Mr. Smith does not beneficially own shares of Issuer Common
Stock. |
Carol Webb, Director of Citius
Pharmaceuticals, Inc.
Former Company Group Chairman, Johnson
& Johnson
| ● | Ms. Webb’s beneficial ownership consists of 150,000
shares of Issuer Common Stock that Ms. Webb has the right to acquire pursuant to outstanding options that are exercisable within 60 days
of August 12, 2024. |
Exhibit 99.1
Execution Version
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
by and among
CITIUS
PHARMACEUTICALS, INC.,
CITIUS
ONCOLOGY, INC.,
TENX KEANE
ACQUISITION
and
TENX MERGER SUB, INC.
Dated as of October 23, 2023
THIS DOCUMENT IS INTENDED SOLELY TO FACILITATE DISCUSSIONS AMONG THE
PARTIES. THIS DOCUMENT IS NOT INTENDED TO CREATE, NOR WILL IT BE DEEMED TO CREATE, A LEGALLY BINDING OR ENFORCEABLE OFFER OR AGREEMENT
OF ANY TYPE OR NATURE, UNLESS AND UNTIL AGREED TO AND EXECUTED BY THE PARTIES.
TABLE OF CONTENTS
|
|
Page |
|
|
|
Article I - DEFINITIONS |
3 |
1.1 |
Definitions |
3 |
1.2 |
Interpretation |
3 |
|
|
|
Article II - THE MERGER |
5 |
2.1 |
The Merger |
5 |
2.2 |
Closing |
5 |
2.3 |
Closing Deliverables; Effective Time |
6 |
2.4 |
Certificate of Incorporation and Bylaws of the Surviving Corporation; Directors and Officers of the Surviving Corporation |
7 |
2.5 |
Governance Matters |
8 |
2.6 |
Tax Treatment of the Domestication and the Merger |
8 |
2.7 |
Adjustment to Parent Transaction Expenses |
8 |
|
|
|
Article III - CONVERSION OF SHARES |
10 |
3.1 |
Effect on Capital Stock and SpinCo Options |
10 |
3.2 |
Exchange Fund |
11 |
3.3 |
Appraisal Rights |
12 |
|
|
|
Article IV - REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
12 |
4.1 |
Organization of the Company |
12 |
4.2 |
Due Authorization |
13 |
4.3 |
Governmental Consents |
13 |
4.4 |
No Conflict |
13 |
4.5 |
Litigation and Proceedings |
14 |
4.6 |
Brokers’ Fees |
14 |
4.7 |
Internal Controls |
14 |
|
|
|
Article V – REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND SPINCO |
15 |
5.1 |
Organization of SpinCo |
15 |
5.2 |
Due Authorization |
16 |
5.3 |
Capitalization of SpinCo |
16 |
5.4 |
Subsidiaries |
17 |
5.5 |
Governmental Consents |
17 |
5.6 |
No Conflict |
17 |
5.7 |
Sufficiency of the SpinCo Assets |
17 |
5.8 |
Financial Statements |
18 |
5.9 |
No Undisclosed Liabilities |
19 |
5.10 |
Litigation and Proceedings |
19 |
5.11 |
Real Property |
19 |
5.12 |
Tax Matters |
20 |
5.13 |
Absence of Changes |
21 |
5.14 |
Material Contracts |
21 |
5.15 |
Employment Matters |
24 |
5.16 |
Compliance with Law; Permits |
26 |
5.17 |
Benefit Plans |
26 |
5.18 |
Intellectual Property |
28 |
5.19 |
Environmental Matters |
30 |
5.20 |
Affiliate Matters |
30 |
5.21 |
Brokers’ Fees |
31 |
5.22 |
Proxy Statement; Registration Statement |
31 |
5.23 |
Board and Shareholder Approval |
31 |
5.24 |
Healthcare Regulatory Matters |
31 |
5.25 |
Data Privacy |
32 |
5.26 |
Anti-Bribery, Anti-Corruption and Anti-Money Laundering |
33 |
5.27 |
Sanctions, Import, and Export Controls |
33 |
5.28 |
No Other Representations and Warranties |
34 |
|
|
|
Article VI - REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB |
34 |
6.1 |
Organization of Parent and Merger Sub |
34 |
6.2 |
Due Authorization |
35 |
6.3 |
Capital Stock and Other Matters |
36 |
6.4 |
Governmental Consents |
37 |
6.5 |
No Conflict |
37 |
6.6 |
Internal Controls; Listing; Financial Statements |
38 |
6.7 |
No Undisclosed Liabilities |
39 |
6.8 |
Litigation and Proceedings |
39 |
6.9 |
Tax Matters |
40 |
6.10 |
Absence of Changes |
42 |
6.11 |
Brokers’ Fees |
42 |
6.12 |
Proxy Statement; Registration Statement |
42 |
6.13 |
SEC Filings |
42 |
6.14 |
Trust Account |
43 |
6.15 |
Investment Company Act; JOBS Act |
44 |
6.16 |
Indebtedness |
44 |
6.17 |
Stock Market Quotation |
44 |
6.18 |
Business Activities |
44 |
6.19 |
Section 280G |
45 |
6.20 |
Sanctions, Import, and Export Controls |
45 |
6.21 |
No Other Representations and Warranties |
45 |
|
|
|
Article VII - COVENANTS |
46 |
7.1 |
Conduct of Business by Parent and Merger Sub Pending the Merger |
46 |
7.2 |
Conduct of the Company and SpinCo Business Pending the Merger |
47 |
7.3 |
Tax Matters |
50 |
7.4 |
Preparation of the Registration Statement and Proxy Statement; Parent Shareholders Meeting |
51 |
7.5 |
Reasonable Efforts |
55 |
7.6 |
Access to Information |
56 |
7.7 |
Permitted Activities and Exclusivity |
57 |
7.8 |
Public Announcements |
59 |
7.9 |
Section 16 Matters |
59 |
7.10 |
Control of Other Party’s Business |
59 |
7.11 |
Domestication |
59 |
7.12 |
NASDAQ Listing |
60 |
7.13 |
Takeover Statutes |
60 |
7.14 |
Sole Shareholder Approvals |
60 |
7.15 |
Financial Information |
60 |
7.16 |
Extension Proposal |
61 |
7.17 |
Equity Incentive Plan. |
63 |
7.18 |
Transfer of Certain Intellectual Property to SpinCo |
63 |
7.19 |
Insurance |
63 |
7.20 |
BLA Resubmission |
64 |
|
|
|
Article VIII – CONDITIONS TO THE MERGER |
64 |
8.1 |
Conditions to the Obligations of SpinCo, the Company, Parent and Merger Sub to Effect the Merger |
64 |
8.2 |
Additional Conditions to the Obligations of the Company and SpinCo |
64 |
8.3 |
Additional Conditions to the Obligations of Parent and Merger Sub |
66 |
|
|
|
Article IX - TERMINATION |
67 |
9.1 |
Termination |
67 |
9.2 |
Effect of Termination |
68 |
9.3 |
Termination Fee |
68 |
9.4 |
Fees and Expenses |
69 |
|
|
|
Article X - MISCELLANEOUS |
69 |
10.1 |
Trust Account |
69 |
10.2 |
Non-Survival of Representations, Warranties and Agreements |
70 |
10.3 |
Governing Law; Jurisdiction |
70 |
10.4 |
Notices |
71 |
10.5 |
Headings |
72 |
10.6 |
Entire Agreement |
72 |
10.7 |
Amendments and Waivers |
72 |
10.8 |
Assignment; Parties in Interest; Non-Parties |
72 |
10.9 |
Specific Performance |
73 |
10.10 |
WAIVER OF JURY TRIAL |
74 |
10.11 |
Severability |
74 |
10.12 |
Counterparts |
74 |
10.13 |
Disclosure Schedules |
74 |
EXHIBITS
Exhibit A |
Form of Parent Charter |
|
Exhibit B |
Form of Parent Bylaws |
|
Exhibit C |
Form of A&R Registration Rights Agreement |
|
Exhibit D |
Form of Parent Equity Incentive Plan |
|
Exhibit E |
Form of Amended and Restated Shared Services Agreement |
|
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
This AGREEMENT AND PLAN OF
MERGER AND REORGANIZATION, dated as of October 23, 2023 (this “Agreement”), is entered into by and among Citius
Pharmaceuticals, Inc., a Nevada corporation (the “Company”), Citius
Oncology, Inc., a Delaware corporation and wholly owned subsidiary of the Company (“SpinCo”), TenX
Keane Acquisition, a Cayman Islands exempted company (which will migrate to and domesticate as a Delaware corporation prior to
the Closing (as defined below)) (“Parent”), and TenX Merger Sub, Inc., a Delaware corporation and wholly owned Subsidiary
of Parent (“Merger Sub”). Each of the foregoing parties is referred to herein as a “Party” and collectively
as the “Parties.”
RECITALS
A. Parent
is a blank check company incorporated as a Cayman Islands exempted company for the purpose of effecting a merger, share exchange, asset
acquisition, share purchase, reorganization or similar business combination with one or more businesses.
B. At
least one day prior to the Closing Date (as defined below), as the first step in the consummation of the transactions contemplated herein
and subject to the conditions set forth in this Agreement, Parent shall migrate to and domesticate as a Delaware corporation (the “Domestication”)
in accordance with Section 388 of the Delaware General Corporation Law, as amended (the “DGCL”), and the Cayman Islands
Companies Act (As Revised) (the “CICA”).
C. Concurrently
with the Domestication, Parent shall file a certificate of incorporation with the Secretary of State of the State of Delaware and adopt
bylaws, substantially in the forms attached as Exhibits A and B hereto, respectively, with such changes as may be agreed
in writing by Parent and the Company.
D. In
connection with the Domestication, (i) each then-issued and outstanding ordinary share, par value $0.0001 each per share, in the capital
of Parent (the “Parent Common Stock”) shall convert automatically, on a one-for-one basis, into one share of common
stock, par value $0.0001 per share, of Parent after its domestication as a corporation incorporated in the State of Delaware (the “Domesticated
Parent Common Stock”); (ii) each then-issued and outstanding right to receive two-tenths of one share of Parent Common Stock
(the “Parent Rights”) shall convert automatically into a right to receive two-tenths of one share of Domesticated Parent
Common Stock (each, a “Domesticated Parent Right”); and (iii) each then-issued and outstanding unit of Parent (the
“Parent Units”) shall be cancelled and entitle the holder to one share of Domesticated Parent Common Stock and a Domesticated
Parent Right.
E. Following
the Domestication, (i) the Parties will effect the merger of Merger Sub with and into SpinCo, with SpinCo continuing as the surviving
corporation and changing its name to one as selected by SpinCo in its discretion (the “Merger”), upon the terms and
subject to the conditions set forth herein, and (ii) Parent will change its name to “Citius Oncology, Inc.”
F. Pursuant
to the Merger, shares of SpinCo Common Stock will be exchanged for shares of Domesticated Parent Common Stock, on the terms and subject
to the conditions set forth herein.
G. The
board of directors of Parent (the “Parent Board”) unanimously has (i) determined that it is in the best interests of
Parent and the shareholders of Parent, and declared it advisable, to enter into this Agreement providing for the Domestication and the
Merger in accordance with the DGCL and CICA, (ii) approved this Agreement and the Transactions, including the Domestication and the Merger,
on the terms and subject to the conditions of this Agreement, and (iii) adopted a resolution recommending that the Domestication be approved,
and the plan of merger set forth in this Agreement be adopted by the shareholders of Parent (the “Parent Board Recommendation”).
H. The
board of directors of Merger Sub has determined that the Merger and this Agreement are advisable, has approved this Agreement and the
Transactions, including the Merger, and has recommended the approval of this Agreement and the Merger to the sole stockholder of Merger
Sub.
I. Parent,
as the sole stockholder of Merger Sub, promptly following the execution and delivery of this Agreement, will approve and adopt this Agreement
and the Transactions.
J. The
board of directors of the Company (the “Company Board”) unanimously has approved this Agreement and the Transactions.
K. The
board of directors of SpinCo has determined that the Merger and this Agreement are advisable, has approved this Agreement and the Transactions,
including the Merger, and has recommended the approval of this Agreement and the Merger to the sole stockholder of SpinCo.
L. The
Company, as the sole stockholder of SpinCo, promptly following the execution and delivery of this Agreement, will approve and adopt this
Agreement and the Transactions.
M. In
accordance with the terms of this Agreement, Parent shall provide an opportunity to holders of the Parent Common Stock to have their outstanding
shares redeemed on the terms and subject to the conditions set forth in this Agreement and Parent’s Governing Documents in connection
with obtaining the Parent Shareholder Approval .
N. At
the Effective Time, Parent, the Sponsor, and the other Persons named as parties therein shall amend and restate that certain Registration
Rights Agreement, dated October 13, 2022, by and among Parent, the Sponsor and the other Persons party thereto, substantially in the form
attached hereto as Exhibit C (as so amended and restated, and with such further changes as may be agreed in writing by Parent and
the Company, the “A&R Registration Rights Agreement”), to, among other things, include a six (6) month lockup on
shares issued to directors and officers of the Company and SpinCo.
O. As
a material inducement to the Company’s and SpinCo’s willingness to enter into this Agreement, concurrently with the execution
and delivery of this Agreement, Sponsor and Parent are entering into a Sponsor Support Agreement with the Company and SpinCo (the “Sponsor
Support Agreement”).
P. It
is the intention of the Parties that, for U.S. federal income Tax (as defined below) purposes, the Domestication qualify as a “reorganization”
under Section 368(a)(1)(F) of the Code, the Merger qualify as a “reorganization” within the meaning of Section 368(a)(1)(A)
of the Code, the Company, Merger Sub and Parent be parties to such reorganization (within the meaning of Section 368(b) of the Code) under
Section 368(a)(1)(A), and this Agreement constitutes a “plan of reorganization” within the meaning of the regulations promulgated
under the Code.
AGREEMENT
In consideration of the premises and mutual covenants
contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties
agree as follows:
Article
I
DEFINITIONS
1.1 Definitions.
Unless otherwise provided herein, terms with initial capital letters used in this Agreement will have the meanings ascribed to such terms
in Annex A attached hereto, which is incorporated herein and made a part hereof.
1.2 Interpretation.
(a) Unless
the context of this Agreement otherwise requires:
(i) (A)
words of any gender include each other gender and neuter form and the use herein shall not limit any provision of this Agreement; (B)
words using the singular or plural number also include the plural or singular number, respectively; (C) derivative forms of defined terms
will have correlative meanings; (D) the terms “hereof,” “herein,” “hereby,” “hereto,”
“herewith,” “hereunder” and derivative or similar words refer to this entire Agreement; (E) the terms “Article,”
“Section,” “Annex,” “Exhibit,” “Schedule,” and “Disclosure Schedule” refer
to the specified Article, Section, Annex, Exhibit, Schedule or Disclosure Schedule of this Agreement and references to “paragraphs”
or “clauses” shall be to separate paragraphs or clauses of the Section or subsection in which the reference occurs; and (F)
the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without
limitation”.
(ii) any
Law defined or referred to in this Agreement or in any agreement or instrument that is referred to herein means such Law as from time
to time amended, modified or supplemented, in whole or in part, including (in the case of statutes) by succession of comparable successor
Laws and the related regulations, or enforcement procedures thereunder and published interpretations thereof, and references to any Contract
or instrument (excluding any Contracts, documents or instruments disclosed in the Disclosure Schedules) are to that Contract or instrument
as from time to time amended, modified, supplemented, or the terms thereof waived to the extent permitted by, and in accordance with,
the terms thereof; provided, that for purposes of any representations and warranties contained in this Agreement that are made
as of a specific date or dates, references to any Law shall be deemed to refer to such Law, as amended, and the related regulations, or
enforcement procedures thereunder and published interpretations thereof, in each case, as of such date or dates.
(iii) references
to any federal, state, local, or foreign statute or Law shall include all regulations promulgated thereunder; and
(iv) references
to any Person include references to such Person’s successors and permitted assigns, and in the case of any Governmental Authority,
to any Person succeeding to its functions and capacities.
(b) The
language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent. The Parties acknowledge
that each Party and its attorney has reviewed and participated in the drafting of this Agreement and that any rule of construction to
the effect that any ambiguities are to be resolved against the drafting Party, or any similar rule operating against the drafter of an
agreement, shall not be applicable to the construction or interpretation of this Agreement.
(c) No
reference in the Disclosure Schedules to or disclosure of a possible breach or violation of any Contract or Law shall be construed as
an admission by any Party or any of its Affiliates, in any Action, that such Party or any such Affiliate, or any third party, is or is
not in breach or violation of, or in default in, the performance or observance of any term or provisions of any Contract or any Law.
(d) Whenever
this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. If any action
is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action may be deferred
until the next Business Day.
(e) When
calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement,
the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business
Day, the period shall end on the next succeeding Business Day.
(f) The
phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply
“if”, and the word “or” shall be disjunctive but not exclusive.
(g) The
term “writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words
(including electronic media) in a visible form.
(h) All
accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP, unless the context otherwise
requires.
(i) All
monetary figures shall be in United States dollars unless otherwise specified.
(j) No
reference in this Agreement to dollar amount thresholds shall be deemed to be evidence of a SpinCo Material Adverse Effect, Company Material
Adverse Effect or Parent Material Adverse Effect, as applicable.
(k) The
phrases “furnished,” “provided,” “delivered” or “made available” to a Party, or similar
formulations, when used with respect to information or documents means that such information or documents (i) have been physically or
electronically delivered directly to such Party or its legal counsel or financial advisors or made available to such Party (without material
redactions) in the electronic data room hosted by the providing Party in connection with the Transactions, or (ii) are Parent SEC Filings
or Company SEC Documents and have been made publicly available on the SEC’s EDGAR database by Parent or the Company, as applicable,
and in each of clause (i) and (ii), not later than forty-eight (48) hours prior to the execution of this Agreement (and continuously available
to such Party and its legal counsel and financial advisors through the date hereof).
Article
II
THE MERGER
2.1 The
Merger. On the Closing Date, upon the terms and subject to the conditions of this Agreement, Parent and Merger Sub shall cause Merger
Sub to be merged with and into SpinCo in accordance with the applicable provisions of the DGCL. The Merger shall become effective at the
time the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware, or such later time as Parent and SpinCo
shall agree and specify in the Certificate of Merger (such time as the Merger becomes effective being the “Effective Time”).
At the Effective Time, the separate corporate existence of Merger Sub shall cease, and SpinCo shall continue as the surviving corporation
after the Merger (sometimes referred to herein as the “Surviving Corporation”). The Merger will have the effects set
forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of, and subject to, the immediately
preceding sentence, from and after the Effective Time, all property, rights, privileges, immunities, powers, franchises, licenses, and
authority of SpinCo and the Merger Sub will vest in the Surviving Corporation, and all debts, liabilities, obligations, restrictions,
and duties of each of SpinCo and the Merger Sub will become the debts, liabilities, obligations, restrictions, and duties of the Surviving
Corporation. As a result of the Merger, SpinCo shall become a direct, wholly owned Subsidiary of Parent. References herein to “SpinCo”
with respect to the period from and after the Effective Time shall be deemed to be references to the Surviving Corporation. At the Effective
Time, the effects of the Merger shall be as provided in this Agreement, the Certificate of Merger, and the applicable provisions of the
DGCL.
2.2 Closing.
Unless the Transactions have been abandoned and this Agreement terminated pursuant to Section 9.1, then upon the terms and subject
to the conditions set forth in this Agreement, the closing of the Merger (the “Closing”) shall take place by electronic
exchange of documents and signatures on the third (3rd) Business Day after the conditions set forth in Article VIII
(other than those that are to be satisfied at or immediately prior to the Closing, but subject to the satisfaction or, to the extent permitted
by applicable Law, waiver of such conditions at the Closing) have been satisfied or, to the extent permitted by applicable Law, waived,
unless another date, time or place is agreed to in writing by the Company and Parent. The date on which the Closing actually occurs is
hereinafter referred to as the “Closing Date.”
2.3 Closing
Deliverables; Effective Time.
(a) At
the Closing, the Company or SpinCo, as applicable, will deliver or cause to be delivered to Parent or Merger Sub:
(i) a
certificate signed by an authorized officer of the Company, dated as of the Closing Date, certifying that, to the knowledge and belief
of such authorized officer, the conditions specified in Section 8.3(a), (b), (c) and (e) have been satisfied;
(ii) the
A&R Registration Rights Agreement, duly executed by the parties set forth on Section 2.3(a)(ii) of the Company Disclosure Schedule;
(iii)
duly executed counterparts to each of the other Transaction Documents to be entered into by the Company or SpinCo, as applicable;
(iv) an
IRS Form W-9, duly executed by the Company;
(v) copies
of resolutions and actions taken by the Company’s and SpinCo’s board of directors in connection with the approval of this
Agreement and the Transactions;
(vi) the
Amended and Restated Shared Services Agreement, duly executed by the Company and SpinCo;
(vii) all
other documents, instruments or certificates required to be delivered by the Company at or prior to the Closing pursuant to Section
8.3; and
(viii) such
other documents or certificates as is reasonably determined by Parent and its legal counsel to be required in order to consummate the
Transactions.
(b) At
the Closing, Parent will deliver or cause to be delivered:
(i) to
the Exchange Agent, the shares of Domesticated Parent Common Stock to be paid in respect of shares of SpinCo Common Stock in accordance
with Section 3.1(a);
(ii) to
the Company, a certificate signed by an authorized officer of Parent, dated the Closing Date, certifying that, to the knowledge and belief
of such authorized officer, the conditions specified in Section 8.1(f) and Section 8.2(a), (b), (c), (e)
and (f) have been satisfied;
(iii) to
the Company, the A&R Registration Rights Agreement, and other Transaction Documents to be entered into by the Parent and the Sponsor,
as applicable, duly executed by a duly authorized representative of Parent and the Sponsor;
(iv) to
the Company, the written resignations of all of the directors and officers of Parent (other than those Persons identified as the initial
directors and officers, respectively, of Parent after the Effective Time, in accordance with the provisions of Section 2.5), effective
as of the Effective Time;
(v) to
the Company, copies of resolutions and actions taken by Parent’s and Merger Sub’s board of directors and stockholders in connection
with the approval of this Agreement and the Transactions;
(vi) to
the Company, all other documents, instruments or certificates required to be delivered by Parent at or prior to the Closing pursuant to
Section 8.2; and
(vii) such
other documents or certificates as is reasonably determined by the Company and its legal counsel to be required in order to consummate
the Transactions.
(c) At
least two (2) Business Days prior to the Closing, Parent will deliver to the Company a written statement setting forth Parent’s
good faith estimate of (i) all Parent Transaction Expenses as of the Closing (“Parent Estimated Transaction Expenses”)
(in each case with reasonable detail reports including the respective amounts and wire transfer instructions for the payment thereof,
together with corresponding invoices), and (ii) the resulting amount, if any, Sponsor would be obligated to pay to Parent assuming such
Parent Estimated Transaction Expenses were the final Parent Transaction Expenses for purposes of Section 2.7.
(d) On
the Closing Date, in connection with the Effective Time, Parent will pay or cause to be paid, by wire transfer of immediately available
funds, all Parent Estimated Transaction Expenses, and Parent shall cause the Sponsor to pay in full, by wire transfer of immediately available
funds to Parent, any Parent Estimated Transaction Expenses in excess of $500,000.
(e) On
the Closing Date, SpinCo and Merger Sub shall file a certificate of merger relating to the Merger (the “Certificate of Merger”)
with the Secretary of State of the State of Delaware in accordance with the relevant provisions of the DGCL and shall make all other filings
or recordings required under the DGCL.
(f) On
the Closing Date, in connection with the Effective Time, the Company will pay or cause to be paid, by wire transfer of immediately available
funds to Parent, $10,000,000 as a capital contribution to Parent for purposes of funding working capital of the Surviving Corporation.
(g) The
Closing and the Effective Time shall occur no sooner than the date that is the day after the completion of the Domestication.
2.4 Certificate
of Incorporation and Bylaws of the Surviving Corporation; Directors and Officers of the Surviving Corporation.
(a) The
certificate of incorporation of Merger Sub in effect immediately prior to the Effective Time shall be the certificate of incorporation
of the Surviving Corporation until amended in accordance with applicable Law, except the name of the Surviving Corporation shall be as
provided in Section 2.4(b) and the reference to the incorporator shall be deleted.
(b) The
bylaws of Merger Sub in effect immediately prior to the Effective Time shall be the bylaws of the Surviving Corporation until amended
in accordance with applicable Law, except the name of the Surviving Corporation shall be such name as selected by SpinCo in its absolute
discretion.
(c) From
and after the Effective Time, until successors are duly elected or appointed and qualified in accordance with applicable Law, (i) the
directors of SpinCo as of immediately prior to the Effective Time shall be the directors of the Surviving Corporation and (ii) the officers
of SpinCo as of immediately prior to the Effective Time shall be the officers of the Surviving Corporation.
2.5 Governance
Matters.
(a) The
Parties shall use commercially reasonable efforts to ensure that the individuals listed on Section 2.5(a) of the Company Disclosure
Schedule are nominated and elected as directors of Parent effective immediately after the Closing.
(b) Subject
to the terms of Parent’s Governing Documents, Parent shall take all such action within its power as may be necessary or appropriate
such that immediately following the Effective Time (i) the Parent Board shall have a majority of “independent” directors for
purposes of NASDAQ and (ii) the initial officers of Parent shall be as set forth on Section 2.5(b) of the Company Disclosure Schedule,
in each case, each of whom shall serve in such capacity in accordance with the terms of Parent’s Governing Documents following the
Effective Time.
2.6 Tax
Treatment of the Domestication and the Merger. It is the intention by the Parties that, for U.S. federal income Tax purposes, the
Domestication qualify as a “reorganization” under Section 368(a)(1)(F) of the Code, the Merger qualify as a “reorganization”
within the meaning of Section 368(a) of the Code, and SpinCo, Merger Sub and Parent be parties to such Merger reorganization within the
meaning of Section 368(b) of the Code. The Parties hereby adopt this Agreement as a “plan of reorganization” within the meaning
of Sections 1.368-2(g) and 1.368-3(a) of the Treasury Regulations. All of the Parties agree to cooperate and use their best efforts in
order to qualify the Merger as a reorganization under Section 368(a)(1)(A) of the Code, to not take any action that could reasonably be
expected to cause the Merger to fail to so qualify, and to report the Merger for federal, state and any local income Tax purposes in a
manner consistent with such characterization.
2.7 Adjustment
to Parent Transaction Expenses.
(a) Within
ninety (90) days following the Closing Date, the Surviving Corporation will prepare and deliver to Sponsor a statement (the “Closing
Statement”) containing the actual amount of all Parent Transaction Expenses (including those invoiced following the Closing).
The Surviving Corporation shall provide Sponsor with reasonable access to its books and records as may be reasonably requested by Sponsor
to verify the information contained in the Closing Statement.
(b) Dispute
Resolution.
(i) Within
thirty (30) days following Sponsor’s receipt of the Closing Statement, Sponsor will deliver written notice to the Surviving Corporation
of any dispute with respect to the Closing Statement, setting forth such disputed item in reasonable detail (a “Closing Statement
Dispute”). If the Sponsor does not notify the Surviving Corporation of any Closing Statement Dispute within such thirty (30)-day
period, then the Closing Statement and the determinations and calculations of the Parent Transaction Expenses set forth therein will be
final, conclusive and binding on the Parties. If Sponsor delivers to the Surviving Corporation a Closing Statement Dispute, then Sponsor
and the Surviving Corporation will negotiate in good faith to resolve all disputed matters set forth in the Closing Statement Dispute.
If Sponsor and the Surviving Corporation, notwithstanding such good faith effort, fail to resolve the Closing Statement Dispute within
thirty (30) days (or longer, as mutually agreed to by such Parties in writing) after Sponsor delivers to the Surviving Corporation notice
of the Closing Statement Dispute, then Sponsor and the Surviving Corporation will mutually agree on and jointly engage an independent
auditor that is experienced in such matters (the “Independent Auditor”), to promptly resolve any and all unresolved
matters of the Closing Statement Dispute.
(ii) The
Independent Auditor shall consider only those items and amounts set forth in the Closing Statement Dispute that are identified by either
Sponsor or the Surviving Corporation as being items that Sponsor and the Surviving Corporation are unable to resolve. As promptly as practicable
thereafter, Sponsor and the Surviving Corporation will each prepare and submit a written presentation to the Independent Auditor (each
of which will be shared with the other party, but not until such time that both Parties have submitted their presentations) and will use
commercially reasonable efforts to cause the Independent Auditor to make a final determination with respect to the Parties’ respective
positions based upon the applicable language, definitions and Exhibits of this Agreement, and the presentations by Sponsor and the Surviving
Corporation.
(iii) In
resolving any disputed item, the Independent Auditor will be bound by the terms of this Agreement, will serve as an expert and not an
arbitrator, and will not assign a value to any item greater than the greatest value for such item claimed by either party or less than
the smallest value for such item claimed by either Party. Except as Sponsor and the Surviving Corporation may otherwise agree, all communications
between any party or its respective Representatives, on the one hand, and the Independent Auditor, on the other hand, will be in writing
with copies simultaneously delivered to the non-communicating Party (except in such cases where both Parties are submitting a presentation).
The fees, costs and expenses of the Independent Auditor will be borne by Sponsor and the Surviving Corporation in inverse proportion,
as determined by the Independent Auditor, as they may prevail on the matter resolved by the Independent Auditor. Absent fraud, all determinations
made by the Independent Auditor will be final, conclusive and binding on the Parties. The Parties agree that judgment may be entered upon
the determination of the Independent Auditor in any court having jurisdiction over the party against which such determination is to be
enforced.
(iv) If
the Parent Transaction Expenses (as finally determined pursuant to Section 2.7(b)) is greater than the Parent Estimated Transaction
Expenses and greater than $500,000, then Sponsor will pay by wire transfer of immediately available funds to Parent, an amount in cash
equal to (A) the amount by which the Parent Transaction Expenses exceeds $500,000 minus (B) the amount, if any, that Sponsor paid
at Closing in respect of Parent Estimated Transaction Expenses.
(v) Any
payment required pursuant to this Section 2.7(b) will be made within five (5) Business Days after the date of final determination
of the Parent Transaction Expenses in accordance with Section 2.7(b).
(vi) Each
party will reasonably cooperate with and make available to the other party and its respective accountants and other Representatives all
information, records, data and working papers, and will permit access to its records, facilities and personnel, as may be reasonably requested
in connection with this Section 2.7(b). including the resolution of any matters or disputes hereunder.
Article
III
CONVERSION OF SHARES
3.1 Effect
on Capital Stock and SpinCo Options. At the Effective Time, by virtue of the Merger and without any action on the part of any party
to this Agreement or any holder of the capital stock of the Company, SpinCo, Merger Sub or Parent:
(a) SpinCo
Common Stock and Merger Sub Common Stock.
(i) Each
share of SpinCo Common Stock issued and outstanding and held by the Company as of immediately prior to the Effective Time (the “Outstanding
SpinCo Shares”) shall be automatically converted into the right to receive a number of fully paid and non-assessable shares
of Domesticated Parent Common Stock equal to the Base Exchange Ratio, subject to adjustment in accordance with Section 3.1(a)(iii),
with any fractional shares of Domesticated Parent Common Stock rounded down to the nearest whole share for no additional consideration
(the “Merger Consideration”). Each Outstanding SpinCo Share, when converted in accordance with this Section 3.1(a)(i),
shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and the holder thereof shall cease to have
any rights with respect thereto, except the right to receive the Merger Consideration and any dividends or distributions and other amounts
payable in accordance with Section 3.2(b).
(ii) Each
share of SpinCo Common Stock held by SpinCo as treasury stock as of immediately prior to the Effective Time shall automatically be canceled
and shall cease to exist and no stock or other consideration shall be issued or delivered in exchange therefor or in respect thereof.
(iii) The
Aggregate Parent Common Stock Consideration and the resulting Base Exchange Ratio shall be adjusted to the extent appropriate to reflect
the effect of any stock split, split-up, reverse stock split, stock dividend or distributions of Parent Common Stock, or securities convertible
into any such securities, reorganization, recapitalization, reclassification or other like change with respect to Parent Common Stock
having a record date occurring on or after the date of this Agreement and prior to the Effective Time; provided, that nothing in
this Section 3.1(a)(iii) shall be construed to permit Parent to take or to permit any of its Subsidiaries to take any action with
respect to its securities that is prohibited by the terms of this Agreement.
(iv) At
the Effective Time, all of the shares of common stock, par value $0.01 per share, of Merger Sub (“Merger Sub Common Stock”)
issued and outstanding immediately prior to the Effective Time shall be automatically converted into one fully paid and nonassessable
share of common stock, par value $0.001 per share, of the Surviving Corporation.
(b) SpinCo
Options. As of the Effective Time, Parent shall assume each SpinCo Option that is outstanding (whether vested or unvested) as of the
Effective Time (such assumed options are referred to as the “Domesticated Parent Options”). The Domesticated Parent
Options will continue to have, and be subject to, the same terms and conditions (including with respect to vesting and termination-related
provisions) set forth in the applicable option documents (including the SpinCo Equity Incentive Plan and stock option agreement or other
document evidencing such SpinCo Option) immediately prior to the Effective Time, except that (i) each SpinCo Option will be exercisable
from and after the Effective Time for that whole number of shares of Domesticated Parent Common Stock (rounded down to the nearest whole
share) equal to the number of shares of SpinCo Common Stock subject to such SpinCo Option, multiplied by the Base Exchange Ratio, and
(ii) the exercise price per share for each such share of Domesticated Parent Common Stock shall be equal to the exercise price per share
of such SpinCo Option in effect immediately prior to the Effective Time, divided by the Base Exchange Ratio (the exercise price per share,
as so determined, being rounded up to the nearest full cent). The assumption of the SpinCo Options by Parent is intended to satisfy the
requirements of Treasury Regulations Section 1.424-1 (to the extent such SpinCo Options were intended to qualify as incentive stock options
within the meaning of Code Section 422) and of Treasury Regulations Section 1.409A-1(b)(5)(v)(D) (for SpinCo Options not so qualifying).
(c) Parent
Securities. Each share of Domesticated Parent Common Stock, each Domesticated Parent Right and each Domesticated Parent Unit that
is issued and outstanding immediately prior to and at the Effective Time shall remain outstanding immediately following the Effective
Time, except to the extent as otherwise provided in the Parent Governing Documents or Rights Agreement (including in respect of automatic
conversion of the Domesticated Parent Rights or redemption of the Domesticated Parent Common Stock).
3.2 Exchange
Fund.
(a) At
or substantially concurrently with the Effective Time, Parent shall issue, and shall deposit, or shall cause to be deposited, with the
Exchange Agent, for the benefit of the holders of Outstanding SpinCo Shares, for exchange in accordance with this Section 3.2,
the number of Domesticated Parent Common Stock in book-entry form sufficient to represent the Merger Consideration (the “Exchange
Fund”). Parent shall cause the Exchange Agent to distribute, immediately following the Effective Time, pursuant to irrevocable
instructions from the Parent, the Merger Consideration out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose.
(b) Distributions
After the Effective Time. Subject to the following sentence, no dividends or other distributions declared after the Effective Time
with respect to Domesticated Parent Common Stock shall be paid with respect to any shares of Domesticated Parent Common Stock that are
not able to be delivered by the Exchange Agent promptly after the Effective Time, whether due to a legal impediment to such delivery or
otherwise. Subject to the effect of abandoned property, escheat, Tax or other applicable Laws, following the delivery of any such previously
undelivered shares of Domesticated Parent Common Stock, there shall be paid to the record holder of such shares of Domesticated Parent
Common Stock, without interest, at the time of delivery, to the extent not previously paid, the amount of dividends or other distributions
with a record date after the Effective Time theretofore paid with respect to such shares of Domesticated Parent Common Stock.
(c) No
Liability. None of the Company, the Surviving Corporation, Parent, Merger Sub, the Exchange Agent or any other Person shall be liable
for shares of Domesticated Parent Common Stock (or dividends or distributions with respect thereto or with respect to SpinCo Common Stock)
or cash properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(d) Closing
of Transfer Books. From and after the Effective Time, the stock transfer books of SpinCo shall be closed, and no transfer shall be
made of any shares of capital stock of SpinCo that were outstanding as of immediately prior to the Effective Time.
(e) Tax
Withholding. Parent, the Company, SpinCo, Merger Sub and the Exchange Agent shall each be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement such amounts as are required to be deducted and withheld with respect to the
making of such payment under the Code, or under any provision of state, local or foreign Tax Law. To the extent that amounts are so deducted
or withheld and paid over to the appropriate Governmental Authority, such deducted or withheld amounts will be treated for all purposes
of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made.
3.3 Appraisal
Rights. In consideration of the benefits to be received by the Company pursuant to this Agreement, the Company waives any rights to
appraisal that may otherwise be available under the DGCL in connection with the Merger.
Article
IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
As an inducement to Parent
and Merger Sub to enter into this Agreement, except as otherwise disclosed or identified in the Company Disclosure Schedule, the Company
hereby represents and warrants to Parent and Merger Sub as follows:
4.1 Organization
of the Company. The Company has been duly incorporated and is validly existing and in good standing as a Nevada corporation. The Company
has all requisite power and authority to own, lease and operate its properties and assets in the manner in which such assets and properties
are now owned, leased and operated and to conduct its business as it is now being conducted. The Company has made available to Parent
and Merger Sub true and complete copies of the Governing Documents of the Company as in effect on the date hereof. The Company is duly
licensed or qualified and in good standing (or equivalent status as applicable) in each jurisdiction in which the properties and assets
owned or leased by it or the character of its activities require it to be so licensed or qualified or in good standing (or equivalent
status as applicable).
4.2 Due
Authorization. The Company has all requisite power and authority to execute and deliver this Agreement and the Transaction Documents
to which it is or will be a party, to carry out its obligations hereunder and thereunder, and to consummate the Transactions. The execution
and delivery by the Company of this Agreement and the Transaction Documents to which it is or will be a party as of the Effective Time
and the consummation of the Transactions have been duly authorized by all necessary and proper action on its part, and no other action
on the part of the Company is necessary to authorize this Agreement or the Transaction Documents to which it is or will be a party as
of the Effective Time or consummate the Transactions. Each of this Agreement and the Transaction Documents to which the Company is or
will be a party as of the Effective Time has been or will be duly and validly executed and delivered by it and (assuming that this Agreement
or such other applicable Transaction Documents to which each of Parent and Merger Sub is or will be a party as of the Effective Time constitutes
a legal, valid and binding obligation of each of Parent and Merger Sub (as applicable)), constitutes or will when executed and delivered
constitute the legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally
and subject to general principles of equity (regardless of whether considered in a proceeding at law or in equity) (collectively, the
“Remedies Exception”).
4.3 Governmental
Consents. No Consent of, with or to any Governmental Authority is required to be obtained or made by the Company in connection with
the execution or delivery by the Company of this Agreement or the Transaction Documents to which it is or will be a party or the consummation
by the Company of the Transactions, except for or in compliance with (a) any Premerger Notification and Report Form required under and
in compliance with the HSR Act or other filings in connection therewith; (b) the filing of the Certificate of Merger and the Parent Charter
with the Secretary of State of the State of Delaware pursuant to the provisions of the DGCL; (c) the rules and regulations of NASDAQ;
(d) applicable requirements of state securities or “blue sky” Laws, the Securities Act and the Exchange Act; and (e) Consents
described in Section 5.5 and Consents set forth on Section 4.3 of the Company Disclosure Schedule.
4.4 No
Conflict. Subject to the receipt of the Consents set forth in Section 4.3, the execution and delivery by the Company of this
Agreement and the Transaction Documents to which it is or will be a party as of the Effective Time and the consummation by the Company
of the Transactions do not and will not as of the Closing Date, (a) violate any provision of, or result in a conflict with or the breach
of, any Law applicable to the Company or by which any of its assets or properties is bound; (b) with or without lapse of time or the giving
of notice or both, require a consent or approval under, conflict with, result in a violation or breach of, or give to others any rights
of amendment, suspension, revocation of, constitute a default under, result in the acceleration of, create in any party the right to accelerate,
terminate, amend, suspend, revoke, or cancel any Contract to which the Company is a party or by which its assets or properties are bound,
or result in the creation of any Lien on any assets or properties of the Company; or (c) breach or violate any provision of the Governing
Documents of the Company, except, in the case of each of clauses (a) and (b), to the extent that such conflicts, breaches, defaults or
other matters would not (i) materially and adversely affect the ability of the Company to carry out its obligations under, and to consummate
the transactions contemplated by, this Agreement and the Transaction Documents or (ii) materially and adversely affect the ability of
the Company to conduct the SpinCo Business.
4.5 Litigation
and Proceedings. Other than disclosed in the Company SEC Documents there are no Actions pending or, to the Knowledge of the SpinCo
Group, threatened, by or against the Company or any of its Subsidiaries (other than SpinCo or with respect to the SpinCo Assets) that,
individually or in the aggregate, would reasonably be expected to result in a Company Material Adverse Effect. Neither the Company nor
any of its Subsidiaries (other than SpinCo or with respect to the SpinCo Assets) is subject to any Order nor, to the Knowledge of the
SpinCo Group, are there any such Orders threatened to be imposed by any Governmental Authority that, in each case, would reasonably be
expected to result, individually or in the aggregate, in a Company Material Adverse Effect.
4.6 Brokers’
Fees. Except for Maxim Group LLC, no broker, investment banker, or other Person is entitled to any brokerage fee, finders’ fee
or other similar commission in connection with the transactions contemplated by this Agreement, including for which Parent or any of its
Subsidiaries, including Merger Sub or the Surviving Corporation, would be liable, based on arrangements made on behalf of the Company
or any of its Affiliates. The Company is solely responsible for the fees and expenses of Maxim Group LLC arising from the Company’s
engagement with Maxim Group LLC.
4.7 Internal
Controls. (a) The Company has established and
maintains a system of internal controls over financial reporting (as defined in Rule 13a-l5(f) or 15d-15(f), as applicable, under the
Exchange Act (collectively, “Internal Controls”)) that are designed to
provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability
for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv)
the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. The Internal Controls are overseen by the audit committee of the Company Board (the “Company
Audit Committee”). Since September 30, 2019, the Company’s principal executive officer
and its principal financial officer have disclosed to the Company’s independent auditor and the Company Audit Committee (a) any
significant deficiency or material weakness in the Company’s Internal Controls and (b) any fraud involving management or other
employees who have a significant role in the Company’s Internal Controls. Since September 30, 2019, neither the Company nor any
of its Subsidiaries has received any written complaint, allegation, assertion or claim regarding the impropriety of any accounting or
auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or their respective internal accounting
controls.
(b)
The financial statements and notes contained or incorporated by reference in the Company SEC Documents (the “Company Financial
Statements”) (i) fairly present in all material respects the financial condition and the results of operations, changes in stockholders’
equity and cash flows of the Company and its Subsidiaries as at the respective dates of, and for the periods referred to, in such financial
statements, all in accordance with GAAP, and (ii) comply in all material respects with the applicable accounting requirements and with
the rules and regulations of Regulation S-X or Regulation S-K, as applicable, subject, in the case of interim financial statements, to
normal recurring year-end adjustments (the effect of which will not, individually or in the aggregate, be material) and the omission of
notes to the extent permitted by Regulation S-X or Regulation S-K, as applicable. The Company has no off-balance sheet arrangements (as
defined by Regulation S-K) that are not disclosed in the Company SEC Documents.
(c) Neither
the Company (including any employee thereof) nor the Company’s independent auditors has identified or been made aware of (i) any
significant deficiency or material weakness in the system of internal accounting controls utilized by the Company, (ii) any Actual Fraud,
whether or not material, that involves the Company’s management or other employees who have a role in the preparation of financial
statements or the internal accounting controls utilized by the Company or (iii) any claim or allegation regarding any of the foregoing.
4.8 Company
SEC Filings. Since September 30, 2020, the Company has timely filed
or furnished all statements, prospectuses, registration statements, forms, reports and documents required to be filed by it with the SEC
pursuant to the Exchange Act or the Securities Act. Each of the Company’s SEC filings since September 30, 2020, as of the respective
date of such filing (or if amended or superseded by a filing prior to the date of this Agreement or the Closing Date, then on the date
of such filing), complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act, the Sarbanes-Oxley
Act and any rules and regulations promulgated thereunder applicable to such Company SEC filings. As of the respective date of its filing
(or if amended or superseded by a filing prior to the date of this Agreement or the Closing Date, then on the date of such filing), no
Company SEC filings since September 30, 2020 contained any untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading.
As of the date hereof, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company
SEC filings. To the Knowledge of the Company, none of the Company SEC filings filed on or prior to the date hereof is subject to ongoing
SEC review or investigation.
Article
V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND SPINCO
As an inducement to Parent
and Merger Sub to enter into this Agreement, except as otherwise disclosed or identified in (a) with respect to Sections 5.8 and
5.9 the Company SEC Documents filed and publicly available on the SEC’s EDGAR database at least two (2) Business Days prior
to the date hereof (excluding any disclosures of factors or risks contained or references therein under the captions “Risk Factors”
or “Forward-Looking Statements” to the extent they are forward-looking statements and any other similar general, predictive
or cautionary statements) or (b) the corresponding section or subsection of the SpinCo Disclosure Schedule, the Company and SpinCo hereby
represent and warrant as follows:
5.1 Organization
of SpinCo. SpinCo has been duly incorporated and is validly existing and in good standing as a Delaware corporation and has all requisite
power and authority to own, lease and operate its assets in the manner in which such assets are now owned, leased or operated and to conduct
its business as it has been and is now being conducted. SpinCo has made available to Parent and Merger Sub true and complete copies of
the Governing Documents of SpinCo. SpinCo is duly licensed or qualified and in good standing (or equivalent status as applicable) in each
jurisdiction in which the properties and assets owned or leased by it or the character of its activities require it to be so licensed
or qualified or in good standing (or equivalent status as applicable).
5.2 Due
Authorization. SpinCo has all requisite power and authority to execute and deliver this Agreement and the Transaction Documents to
which it is or will be a party, to carry out its obligations hereunder and thereunder, and to consummate the Transactions (subject, in
the case of the Merger, to the SpinCo Shareholder Approval). The execution and delivery by SpinCo of this Agreement and the Transaction
Documents to which it is or will be a party as of the Effective Time and the consummation by SpinCo of the Transactions have been or will
be duly and validly authorized and approved by all necessary and proper action and, except for the SpinCo Shareholder Approval, no other
action on the part of SpinCo is necessary to authorize this Agreement or the Transaction Documents to which it is or will be a party at
the Effective Time. Each of this Agreement and the Transaction Documents to which it is or will be a party at the Effective Time has been,
or when executed and delivered will be, duly and validly executed and delivered by SpinCo and (assuming that this Agreement or such other
applicable Transaction Document to which Parent or Merger Sub is or will be a party at the Effective Time constitutes a legal, valid and
binding obligation of Parent or Merger Sub (as applicable)) constitutes or will constitute a legal, valid and binding obligation of SpinCo,
enforceable against SpinCo in accordance with its terms, subject to the Remedies Exception.
5.3 Capitalization
of SpinCo.
(a) (i)
The authorized capital stock of SpinCo consists of 100,000,000 shares of SpinCo Common Stock, (ii) the issued and outstanding shares of
capital stock of SpinCo consists of 67,500,000 shares of SpinCo Common Stock, and (iii) no shares of SpinCo Common Stock are being held
by SpinCo in its treasury. All of the issued and outstanding shares of SpinCo Common Stock are owned, of record and beneficially, by the
Company and have been duly authorized and validly issued, are fully paid and nonassessable, free and clear of all Liens (other than Liens
imposed by applicable securities Laws) and have not been issued in violation of any preemptive or similar rights.
(b) Except
as set forth in Section 5.3(b) of the SpinCo Disclosure Schedule, there are no (i) outstanding options, warrants, rights or other
securities convertible into or exchangeable or exercisable for shares of capital stock of SpinCo, or any other commitments or agreements
providing for the issuance, sale, repurchase or redemption of shares of capital stock of SpinCo, (ii) obligations of any kind which may
require SpinCo to issue, purchase, redeem or otherwise acquire any of its shares of capital stock or to provide funds to, or make any
investment (in the form of a loan, capital contribution or otherwise) in, any other Person or (iii) voting trusts, proxies or other agreements
or understandings with respect to the voting shares of capital stock of SpinCo.
(c) The
books and records of SpinCo contain a true, correct and complete listing of: (i) the name and address of each Person owning SpinCo Common
Stock and (ii) the certificate number of each certificate evidencing shares of capital stock issued by SpinCo, the number of shares evidenced
by each such certificate, the date of issuance thereof and, in the case of cancellation, the date of cancellation.
5.4 Subsidiaries.
SpinCo has no Subsidiaries. Without limiting the generality of the foregoing, SpinCo does not control, own or possess, directly or indirectly,
or have any interest or participation (direct or indirect) in, any other Person.
5.5 Governmental
Consents. No Consent of, with or to any Governmental Authority is or will be required to be obtained or made by SpinCo in connection
with the execution or delivery by SpinCo of this Agreement or the Transaction Documents to which SpinCo is or will be a party at the Effective
Time or the consummation by SpinCo of the Transactions, except for or in compliance with: (a) any Premerger Notification and Report Form
required under and in compliance with the HSR Act or other filings in connection therewith, (b) the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware pursuant to the provisions of the DGCL; (c) the rules and regulations of NASDAQ;
(d) applicable requirements of state securities or “blue sky” Laws, the Securities Act and the Exchange Act; and (e) Consents
described in Section 4.3 and Consents set forth on Section 5.5 of the SpinCo Disclosure Schedule.
5.6 No
Conflict. Subject to the receipt of the Consents described in Section
5.5, the execution and delivery by SpinCo of this Agreement and the Transaction Documents to which SpinCo is or will be a party at
the Effective Time and the consummation by SpinCo of the Transactions do not and will not: (a) violate any provision of, or result in
a conflict with, or the breach of, any Law applicable to SpinCo or by which any of its assets or properties is bound; (b) with or without
lapse of time or the giving of notice or both, require a consent or approval under, conflict with, result in a violation or breach of,
or give to others any rights of amendment, suspension, revocation of, constitute a default under, result in the acceleration of, create
in any party the right to accelerate, terminate, amend, suspend, revoke, or cancel any Contract to which SpinCo is a party or by which
its assets or properties are bound; (c) result in the creation of any Lien upon any of the properties or assets of SpinCo; or (d) violate
any provision of the Governing Documents of SpinCo, except, in the case of clauses (a), (b) and (c), to the extent that such conflicts,
breaches, defaults or other matters would not (i) materially and adversely affect the ability of the SpinCo to carry out its obligations
under, and to consummate the transactions contemplated by, this Agreement and the Transaction Documents or (ii) materially and adversely
affect the ability of the SpinCo to conduct the SpinCo Business.
5.7 Sufficiency
of the SpinCo Assets.
(a) Except
as set forth in Section 5.7 of the SpinCo Disclosure Schedule, on the Closing Date, assuming receipt of all consents, approvals
and authorizations relating to the matters set forth in Section 4.3 and Section 5.5, the SpinCo Assets, taking into account
the Shared Services Agreement, the Amended and Restated Shared Services Agreement, and the license granted pursuant to Section 7.18(c),
constitute all the properties, assets and rights forming a part of, used, held or intended to be used in, the SpinCo Business, and constitute
all of the assets, properties and rights reasonably necessary for Parent and the Surviving Corporation to conduct the SpinCo Business
immediately following the Closing in all material respects and in substantially the same manner as it is conducted on the date hereof.
(b) The
Company has caused the SpinCo Assets that are material tangible assets or personal property (“Tangible Personal Property”)
to be maintained in accordance with good business and industry practice, and such SpinCo Assets are in good operating condition and repair
and are suitable for the purposes for which they are used and intended to be used, ordinary wear and tear excepted.
(c) Except
for Permitted Liens, SpinCo has good, valid and marketable title to, or a valid leasehold in, license to or other legal right to use,
as the case may be, all of the SpinCo Assets, free and clear of any Liens other than Permitted Liens.
(d) The
operation of the SpinCo Business as it is now conducted is not dependent upon the right to use the Tangible Personal Property of Persons
other than the Company or its Subsidiary, except for such Tangible Personal Property that is owned by, leased, licensed, or otherwise
duly and validly contracted to the Company or one of its Subsidiaries for use in connection with the SpinCo Business. Any leases related
to the Tangible Personal Property are valid and binding against the Company or one of its Subsidiaries, as applicable, and to the Knowledge
of the SpinCo Group, the counterparty thereto, and are in full force and effect and are enforceable in accordance with their terms, subject
to the Remedies Exception. No event has occurred which (whether with or without notice, lapse of time or both or the happening or occurrence
of any other event) would constitute a material default on the part of the Company or its respective Subsidiary under any lease related
to the Tangible Personal Property, and to the Knowledge of the SpinCo Group, no event has occurred which (whether with or without notice,
lapse of time or both or the happening or occurrence of any other event) would constitute a material default by any other party under
any such lease, and none of the Company or its Subsidiaries has received written notice of any such condition. Neither the Company nor
any of its Subsidiaries has waived any material rights under any license or lease related to the Tangible Personal Property. To the Knowledge
of the SpinCo Group, no event has occurred which either entitles, or, on notice or lapse of time or both, would entitle the other party
to any license or lease related to the Tangible Personal Property with the Company or any of its Subsidiaries to declare a default or
to accelerate, or which does accelerate, the maturity of any obligations of the Company or its Subsidiaries under any such license or
lease.
5.8 Financial
Statements.
(a) Set
forth on Section 5.8(a) of the SpinCo Disclosure Schedule are copies of the SpinCo Financial Statements. Each of the SpinCo Financial
Statements fairly presents, and each of the Subsequent Period SpinCo Financial Statements will fairly present, in all material respects,
the financial condition and results of operations and cash flows of the SpinCo Business, as of the dates indicated therein and for the
periods referred to therein; provided, that the SpinCo Financial Statements, the Subsequent Period SpinCo Financial Statements
and the representations and warranties in this Section 5.8 are qualified by the fact that (i) the SpinCo Business has not operated
on a separate standalone basis and has historically been reported within the Company Financial Statements, and (ii) the SpinCo Financial
Statements assume, and the Subsequent Period SpinCo Financial Statements will assume, certain allocated charges and credits, which do
not necessarily reflect amounts that would have resulted from arm’s-length transactions or that the SpinCo Business would incur
on a standalone basis, including after the Closing. The SpinCo Financial Statements were prepared in accordance with GAAP and were derived
from the financial reporting systems and the Company Financial Statements.
(b) There
are no outstanding loans or other extensions of credit made by SpinCo to any executive officer (as defined in Rule 3b-7 under the Exchange
Act) or director of SpinCo. SpinCo has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.
5.9 No
Undisclosed Liabilities. There are no Liabilities of the Company or any of its Subsidiaries (excluding SpinCo) (in each case primarily
with respect to the SpinCo Business) and SpinCo (excluding any Liabilities related or attributable to Taxes as set forth on Section
5.9 of the SpinCo Disclosure Schedule) whether or not of a type required to be reflected or reserved for on a consolidated balance
sheet of the Company or related to the SpinCo Business or in the notes thereto prepared in accordance with GAAP, except for (a) Liabilities
reflected or reserved for in the Company Financial Statements or the SpinCo Financial Statements or disclosed in any notes thereto; (b)
Liabilities that have arisen since the Balance Sheet Date in the ordinary course of the operations of the SpinCo Business and consistent
with past practice; (c) Liabilities arising out of or in connection with this Agreement, the Transaction Documents and the Transactions;
(d) Liabilities set forth in Section 5.9 of the SpinCo Disclosure Schedule; (e) Liabilities that are executory obligations arising
in the ordinary course of business under any SpinCo Material Contract (and not as a result of any breach thereof) or (f) Liabilities that,
individually or in the aggregate, would not reasonably be expected to be material to SpinCo.
5.10 Litigation
and Proceedings. There are no Actions pending or, to the Knowledge of the SpinCo Group, threatened against SpinCo or the Company with
respect to the SpinCo Business or affecting any of the SpinCo Assets. Neither SpinCo nor the Company (solely in respect of the SpinCo
Assets) is subject to any Order (nor, to the Knowledge of the SpinCo Group, are there any such Orders threatened to be imposed by any
Governmental Authority) which has materially and adversely affected SpinCo or the SpinCo Business or would reasonably be expected to materially
or adversely affect the legality, validity or enforceability of this Agreement, any Transaction Document or the consummation of the Transactions
contemplated hereby or thereby.
5.11 Real
Property. SpinCo does not own, and at no time previously has owned, any real property. With respect to the Company Real Property,
(i) the Company or its applicable Subsidiary has good and valid title (or the applicable local equivalent) or a valid and enforceable
leasehold interest, as applicable, in such Company Real Property, free and clear of any Liens, subject to the Remedies Exception and other
than Permitted Liens, and (ii) neither the Company nor any of its Subsidiaries has received (A) written notice of any pending condemnation,
expropriation, eminent domain or similar Action affecting all or any portion of such Company Real Property (to the extent relating to
or affecting the SpinCo Business) or (B) written notice of default or breach of any Company Leased Property. To the Knowledge of the SpinCo
Group, no event has occurred which, with notice, lapse of time or both, would constitute a material default or breach of any Company Leased
Property by the Company or its Subsidiaries. A complete and correct list of the Company Real Property is provided in Section 5.11 of
the SpinCo Disclosure Schedule.
5.12 Tax
Matters.
(a) Except
as would not, individually or in the aggregate, have a SpinCo Material Adverse Effect:
(i) (A)
All Tax Returns required to be filed by the Company and SpinCo or with respect to SpinCo or the SpinCo Business have been filed (taking
into account applicable extensions), (B) all such Tax Returns are true, correct and complete, and (C) all Taxes, whether or not shown
as due on such Tax Returns, in respect of SpinCo and the SpinCo Business have been paid, in the case of each of clauses (A) through (C),
except to the extent adequate reserves therefor in accordance with GAAP have been provided on the SpinCo Financial Statements;
(ii) The
Company and SpinCo have each made available to Parent and Merger Sub true, correct and complete copies of all Tax Returns filed by or
with respect to the SpinCo Business for tax years ending on or after December 31, 2021.
(iii) (A)
No Governmental Authority has asserted any written claim, assessment or deficiency for Taxes against the Company, SpinCo or the SpinCo
Business, except for deficiencies or proposed deficiencies that have been satisfied by payment, settled or withdrawn, and (B) no claim,
audit or other proceeding by any Governmental Authority is pending or threatened in writing with respect to any Taxes of the Company,
SpinCo or the SpinCo Business;
(iv) The
Company and SpinCo have no outstanding waivers or extensions of any applicable statute of limitations to assess any amount of Taxes. There
are no outstanding requests by the Company or SpinCo for any extension of time within which to file any material Tax Return or within
which to pay any Taxes shown to be due on any Tax Return;
(v) SpinCo
has no Liability for Taxes of any other Person (other than the Company or any of its Subsidiaries) whether under Treasury Regulations
Section 1.1502-6, as a transferee or successor, or by contract (other than commercial contracts the primary purpose of which is not Taxes),
or by operation of Law or otherwise;
(vi) Within
the past two (2) years, SpinCo has not constituted either a “distributing corporation” or a “controlled corporation”
(within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section
355 of the Code;
(vii) SpinCo
has not participated in, and is currently not participating in, a “listed transaction” within the meaning of Treasury Regulations
Section 1.6011-4(b)(2);
(viii) There
are no Liens for Taxes (other than Permitted Liens) upon the assets of SpinCo or the SpinCo Business;
(ix) SpinCo
is not a party to or bound by any Tax indemnity agreement, Tax sharing agreement or Tax allocation agreement or similar agreement, arrangement
or practice with respect to Taxes (including advance pricing agreement, closing agreement or other agreement relating to Taxes with any
taxing authority), except for any commercial contracts the primary purpose of which is not Taxes; and
(x) SpinCo
has not requested and is not the subject of or bound by any private letter ruling, technical advice memorandum, closing agreement or similar
ruling, memorandum, or agreement with any taxing authority with respect to any material Taxes of SpinCo, nor is any such request outstanding.
(b) Neither
the Company nor any of its Subsidiaries has taken or agreed to take any action or knows of any fact, agreement, plan or other circumstance
that could reasonably be expected to prevent or impede the Tax-Free Status.
(c) The
representations and warranties set forth in this Section 5.12 and, to the extent relating to Tax matters, Section 5.17,
constitute the sole and exclusive representations and warranties of the Company and SpinCo regarding Tax matters.
5.13 Absence
of Changes.
(a)
Since the Balance Sheet Date until the date of this Agreement there has not been any SpinCo Material Adverse Effect;
(b) Except
in connection with the Transaction Process or as contemplated by this Agreement and the other Transaction Documents, since the Balance
Sheet Date and through the date hereof, the Company and its Subsidiaries, including SpinCo, have, in all material respects, conducted
the SpinCo Business in the ordinary course of business and consistent with past practice.
(c) Except
as disclosed on Section 5.13(c) of the SpinCo Disclosure Schedule, since the Balance Sheet Date, the Company has not, nor has any
of its Subsidiaries, including SpinCo, taken any action that, if taken during the period from the date of this Agreement through the Closing,
would require the consent of Parent or Merger Sub pursuant to Section 7.2.
5.14 Material
Contracts.
(a) Section
5.14(a) of the SpinCo Disclosure Schedule sets forth a true, correct and complete list of, and the Company or SpinCo has made available
to the Parent and the Merger Sub, true, correct and complete copies of, each Contract in effect to which SpinCo is a party or to which
the Company or any of its Subsidiaries is a party to the extent it relates primarily to the SpinCo Business or the SpinCo Assets or by
which the SpinCo Business or the SpinCo Assets are bound (each, a “SpinCo Material Contract”):
(i) any
Contract that relates to the purchase or sale of goods or services pursuant to which the SpinCo Business has received more than $500,000
or paid more than $500,000 in the past twelve (12) months;
(ii) (A)
any Contract to which SpinCo is a party, that by its terms calls for aggregate payments by the Company or any of its Subsidiaries under
such Contract of more than $500,000 per year or $1,200,000 in the aggregate over the length of the Contract, and (B) any Contract to which
the Company or its Subsidiary (other than SpinCo) is a party, that by its terms calls for aggregate payments by the Company or any of
its Subsidiaries under such contract of more than $500,000 per year or $1,200,000 in the aggregate over the length of the contract, which
payments solely relate to the SpinCo Business;
(iii) any
Contract that contains covenants that materially limit the ability of SpinCo (A) to compete in any line of business or with any Person
or in any geographic area or to sell, or provide any service or product or solicit any Person, including any non-competition covenants,
exclusivity restrictions, rights of first refusal or (B) to purchase or acquire an interest in any other Person;
(iv) any
Contract that limits or purports to limit in any material respect the ability of the SpinCo Business to compete with any Person or in
any line of business or in any geographic region in the world;
(v) any
Contract that grants exclusive rights to a customer or a supplier or (to the extent material to the SpinCo Business) any other commercial
counterparty that will relate to or affect the SpinCo Business after the Closing;
(vi) any
Contract that requires any future capital expenditures by the SpinCo Business in excess of $500,000 that will not be paid prior to the
Closing;
(vii) any
Contract that requires any continuing indemnification obligations or milestone, earn out or similar payments to be made by the SpinCo
Business in excess of $1,000,000 in the aggregate that will not be paid prior to the Closing;
(viii) any
Contract that relates to the creation, incurrence, assumption or guarantee of any indebtedness for borrowed money or any bonds, debentures,
notes or similar instruments, in each case, in excess of $500,000;
(ix) any
Contract pursuant to which (A) any Person grants to SpinCo or, with respect to the SpinCo Business, to the Company or any of its Subsidiaries
other than SpinCo, any license, right, permission, consent, non-assertion or release with respect to any Intellectual Property that is
material to the SpinCo Business, other than (1) non-exclusive click-wrap, shrink-wrap or off-the-shelf software licenses that are commercially
available on standard and reasonable terms to the public generally with license, maintenance, support and other fees of less than $200,000
in any twelve (12)-month period, (2) non-disclosure agreements entered into in the ordinary course of business consistent with past practice
and (3) non-exclusive licenses granted by any suppliers or service providers to SpinCo in the ordinary course of business consistent with
past practice solely for the receipt of services from such supplier or service provider, and solely where such licenses are ancillary
to the primary purpose of such Contract, or (B) the Company or any of its Subsidiaries (excluding SpinCo) (in each case solely with respect
to the SpinCo Business) or SpinCo grants any license, right, permission, consent, non-assertion or release with respect to any Intellectual
Property that is material to the SpinCo Business, other than (1) non-exclusive licenses granted to customers of SpinCo in the ordinary
course of business consistent with past practice, (2) non-exclusive licenses granted to any suppliers or service providers by SpinCo in
the ordinary course of business consistent with past practice and (3) non-disclosure agreements entered into in the ordinary course of
business consistent with past practice;
(x) any
Contract to which the Company or any of its Subsidiaries (excluding SpinCo) (in each case solely with respect to the SpinCo Business)
or SpinCo is a party with any Governmental Authority or any university, college, research institute, or other educational institution
that provides for the provision of funding by or to SpinCo or the Company or any of its other Subsidiaries, in each case, for any research
or development activities involving the invention, creation, conception or development of any Intellectual Property that is material to
the SpinCo Business;
(xi) any
lease, sublease, occupancy agreement or license for real property;
(xii) any
Contract that contains “most favored nation” pricing provisions for the benefit of the relevant counterparty that will relate
to or affect the SpinCo Business after the Closing;
(xiii) any
joint venture, strategic alliance, joint development, partnership or similar arrangement;
(xiv) any
Contract relating to the acquisition or disposal or divestiture of, or investment in, any joint venture, partnership or similar arrangement
or any material assets or businesses;
(xv) any
Contract providing for (or providing an option for) any merger, consolidation or other business combination with any other Person or the
acquisition or disposition of any other entity or its business or material assets or the sale of the Company, SpinCo, their material assets
or the SpinCo Business;
(xvi) any
Contract that is between SpinCo and any of its directors, executive officers, shareholders or Affiliates, including the Company, including
all non-competition, severance and indemnification agreements;
(xvii) any
Contract that provides another Person with a power of attorney;
(xviii) any
prime contract, subcontract, purchase order, task order, delivery order, teaming agreement, joint venture agreement, strategic alliance
agreement, basic ordering agreement, pricing agreement, letter contract or other similar arrangement of any kind where the counterparty
or the ultimate customer is, or the work performed under such contract was funded by, a Governmental Authority; and
(xix) any
Contract not otherwise described in any other subsection of this Section 5.14(a) that would be required to be filed by SpinCo as
a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) if SpinCo were subject to
the reporting requirements of the Exchange Act as of the date hereof.
(b) Except
as disclosed in Section 5.14(b) of the SpinCo Disclosure Schedule, (i) each SpinCo Material Contract is valid and binding on the
Company or its applicable Subsidiary, including SpinCo and, to the Knowledge of the SpinCo Group, the counterparty thereto, and is in
full force and effect and enforceable in accordance with its terms, subject to the Remedies Exception; (ii) neither the Company nor its
applicable Subsidiary, including SpinCo is, and to the Knowledge of the SpinCo Group, no counterparty thereto is, in breach of, or default
under, any SpinCo Material Contract in any material respect; (iii) to the knowledge of the SpinCo Group, as applicable, no event has occurred
that with the passage of time or giving of notice or both would constitute such a breach or default by a counterparty to a SpinCo Material
Contract, or permit termination or acceleration by the Company or SpinCo, under such SpinCo Material Contract; (iv) no other party to
a SpinCo Material Contract has notified the Company or SpinCo in writing that it is terminating or considering terminating its business
with the Company (solely in respect of the SpinCo Business) or SpinCo or is planning to materially reduce its future business with the
Company (solely in respect of the SpinCo Business) or SpinCo; and (v) neither the Company nor SpinCo has waived any material rights under
a SpinCo Material Contract.
5.15 Employment
Matters.
(a) Since
their respective dates of formation, neither the Company nor any of its Subsidiaries, including SpinCo, is or has been a party to any
agreement with any trade union, works council, employee representative body or labor organization (covered by the National Labor Relations
Act) that represents (or that otherwise governs or relates to the employment of) any employees of the Company or its Subsidiaries, including
SpinCo. To the Knowledge of the SpinCo Group, (i) no petition for recognition of a labor organization or other body for the representation
of the employees of the Company and its Subsidiaries is pending or threatened, and (ii) there has not during the last three (3) years
been any (or threat of any), and there are no pending and no Person has threatened to commence any, strike, slowdown, work stoppage, lockout,
picketing, labor dispute, union organizing activity, or any similar activity or dispute, in each case affecting the SpinCo Business or
SpinCo.
(b) There
are no pending, or to the Knowledge of the SpinCo Group, anticipated or threatened, unfair labor or other employment-related practice
charges, complaints or other grievances or Actions by or before any Governmental Authority, arising under any applicable Law governing
labor or employment, in each case in respect of which SpinCo or the SpinCo Business will have any material Liability at the Effective
Time.
(c) There
are no Actions pending or, or to the Knowledge of the SpinCo Group, threatened involving the Company or any of its Subsidiaries (excluding
SpinCo) (in each case solely with respect to the SpinCo Business) or SpinCo, or any of their respective employees or former employees
(with respect to their status as an employee or former employee, as applicable) including any harassment, discrimination, retaliatory
act, or similar claim.
(d) Since
its formation, SpinCo has had no employees and all employee or consulting services necessary for the operation of the SpinCo Business
have been provided by the Company or one of its Subsidiaries pursuant to the Shared Services Agreement. For the past three (3) years,
the Company has been in compliance in all material respects with all Laws relating to terms and conditions of employment, employment practices,
employment discrimination and harassment, civil rights, the Worker Adjustment and Retraining Notification Act and any similar state or
local plant closures and mass layoffs Laws, wages (including minimum wage and overtime), hours of work, withholdings and deductions, classification
and payment of employees, independent contractors and consultants, employment equity, occupational health and safety, workers’ compensation,
immigration, and workforce reduction with respect to any employee or independent contractor providing services to the SpinCo Business
or in respect of which SpinCo will have any material Liability at the Effective Time.
(e) Except
as would not reasonably be expected to result in material Liability to the SpinCo Business (taken as a whole), neither the Company nor
any of its Subsidiaries, including SpinCo, has incurred or is liable for, and no circumstances exist under which the Company or any of
its Subsidiaries would reasonably be expected to incur or be liable for with respect to any Person that provides services to SpinCo as
an employee or independent contractor, any liability arising from (i) the failure to pay wages (including overtime wages), (ii) the misclassification
of employees as independent contractors or (iii) the misclassification of employees as exempt from the requirements of the Fair Labor
Standards Act or similar state Laws.
(f) Section
5.15(f) of the SpinCo Disclosure Schedule sets forth a complete and accurate list of all current employees of the Company or any of
its Subsidiaries who provide services to SpinCo or the SpinCo Business, showing each employee’s name, job title or description,
employer, location, and salary level (including any bonus, commission, deferred compensation or other remuneration payable, and detailing
the extent of their allocation to SpinCo or the SpinCo Business). Except as set forth on Section 5.15(f) of the Company Disclosure
Schedule, (A) no such employee is a party to a written employment agreement or contract with the Company or any of its Subsidiaries
and each is employed “at will”, and (B) the Company, or one of its Subsidiaries, has paid in full to all such employees all
wages, salaries, commission, bonuses and other compensation due to such employees, including overtime compensation, and there are no severance
payments which are or could become payable by the Company, or the Subsidiary, to any such employees under the terms of any written or
oral agreement, or commitment or any Law, custom, trade or practice. Each such employee has entered into the Company’s or one of
its Subsidiary’s standard form of employee non-disclosure, inventions and restrictive covenants agreement with the Company or such
Subsidiary, a copy of which has been provided to the Parent by the Company. The Company has provided to Parent and Merger Sub true and
complete copies of each employment agreement with such employee.
(g) Section
5.15(g) of the SpinCo Disclosure Schedule contains a list of all independent contractors (including consultants) currently engaged
by the Company who provide services to SpinCo or the SpinCo Business, along with the position, the entity engaging such Person, date of
retention and rate of remuneration, and details of the extent of their allocation to SpinCo or the SpinCo Business for each such Person.
All of such independent contractors are a party to a written agreement or contract with the Company or one of its Subsidiaries. Each such
independent contractor has entered into customary covenants regarding confidentiality and assignment of inventions and copyrights in such
Person’s agreement with the Company or one of its Subsidiaries, a copy of which has been provided to the Parent by the Company.
For the purposes of applicable Law, including the Internal Revenue Code of 1986, as amended, all independent contractors who are currently,
or within the last three (3) years have been, engaged by the Company or one of its Subsidiaries are bona fide independent contractors
and not employees of the Company or such Subsidiary. Except as set forth on Section 5.15(g) of the SpinCo Disclosure Schedule,
each independent contractor is terminable on fewer than thirty (30) days’ notice, without any obligation of the Company or SpinCo
to pay severance or a termination fee. The Company has provided to Parent and Merger Sub true and complete copies of each service or other
agreement with such independent contractor.
5.16 Compliance
with Law; Permits.
(a) Except
as set forth on Section 5.16(a) of the Company Disclosure Schedule, and for Environmental Laws (which are addressed exclusively
as set forth in Section 5.19(a)), the Company and its Subsidiaries (excluding SpinCo) (in each case solely with respect to the
SpinCo Business) and SpinCo are, and, during the past two (2) years, have (i) been in compliance with all applicable Laws, except where
noncompliance has not been and would not reasonably be expected to materially and adversely affect SpinCo or the SpinCo Business and (ii)
not received notice from any Governmental Authority alleging any material non-compliance with or material violation of any applicable
Law or that the Company or any of its Subsidiaries (excluding SpinCo) (in each case solely with respect to the SpinCo Business) or SpinCo
is subject to any inspection, investigation, survey, audit or other review.
(b) Except
as set forth on Section 5.16(b) of the Company Disclosure Schedule and except with respect to Permits required under applicable
Environmental Laws (which are addressed exclusively in Section 5.19(a)), (i) the Company and its Subsidiaries (excluding SpinCo)
(in each case solely with respect to the SpinCo Business) and SpinCo hold all Permits necessary to conduct the SpinCo Business consistent
with past practice and in compliance with applicable Law (the “SpinCo Permits”) and (ii) the SpinCo Permits are valid
and in full force and effect and the Company or its applicable Subsidiary is in compliance with the terms thereof.
(c) Section
5.16(c) of the SpinCo Disclosure Schedule sets forth a list of each SpinCo Permit.
5.17 Benefit
Plans.
(a) Except
as set forth on Section 5.17(a) of the SpinCo Disclosure Schedule, there are no SpinCo Benefit Plans. No Company Benefit Plan or
SpinCo Benefit Plan is (i) an employee benefit plan subject to Section 302 or Title IV of ERISA or Section 412, 430 or 4971 of the Code;
(ii) an employee benefit plan for which SpinCo could incur liability under Section 4069 of ERISA in the event such plan has been or were
to be terminated or (iii) a plan in respect of which SpinCo or the Company could incur liability under Section 4212(c) of ERISA. There
are no other employee benefit plans, including any multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) or
single employer pension plan (within the meaning of Section 4001(a)(15) of ERISA), for which SpinCo could incur liability under Section
4063 or 4064 of ERISA. Neither SpinCo nor the Company have any express or implied commitment, (1) to create, incur liability with respect
to, or cause to exist, any other SpinCo Benefit Plan, or (2) to modify, change or terminate any SpinCo Benefit Plan, other than with respect
to a modification, change or termination required by applicable Law. SpinCo does not have any express or implied commitment to enter into
any contract or agreement to provide compensation or benefits to any individual.
(b) With
respect to each SpinCo Benefit Plan, the Company has made available to Parent true and complete copies of, to the extent applicable, (i)
the current plan document (including all amendments thereto), (ii) the most recent summary plan description including any summary of material
modifications provided to participants, (iii) the last filed Form 5500 series and all schedules thereto, (iv) the most recent determination,
opinion or advisory letter issued by the IRS and (v) any material, non-routine communications with any Governmental Authority in the past
three (3) years.
(c) Each
SpinCo Benefit Plan has been operated, funded and administered in all material respects in accordance with its terms and in material compliance
with applicable Law, including ERISA and the Code. Except as set forth on Section 5.17(c) of the SpinCo Disclosure Schedule, there
are no pending or threatened Actions or audits (other than routine claims for benefits) involving any SpinCo Benefit Plan.
(d) With
respect to each SpinCo Benefit Plan (i) all required contributions have been made or properly accrued, (ii) there have been no “prohibited
transactions” (as that term is defined in Section 406 of ERISA or Section 4975 of the Code) and (iii) all reports, returns, and
similar documents required to be filed with any Governmental Authority or distributed to any SpinCo Benefit Plan participant have been
timely filed or distributed. SpinCo has complied with its obligations under any plan, program or arrangement that is sponsored, maintained
or administered by any Governmental Authority.
(e) Except
as set forth on Section 5.17(e) of the SpinCo Disclosure Schedule the consummation of the Transactions shall not, either alone
or in combination with another event: (i) entitle any current or former employee of or consultant to SpinCo, including those operating
the SpinCo Business pursuant to the Shared Services Agreement, to severance pay, unemployment compensation or any other benefits or payments;
or (ii) accelerate the time of payment, funding or vesting, or increase the amount of any payments or benefits due to any employee of
or consultant to SpinCo, including those operating the SpinCo Business pursuant to the Shared Services Agreement.
(f) Except
as set forth in Section 5.17(f) of the SpinCo Disclosure Schedule, no SpinCo Benefit Plan provides for, and SpinCo does not have
any current or contingent Liability in respect of, post-retirement or other postemployment health or welfare benefits.
(g) Neither
the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby or by the Transaction Documents
shall, either alone or in combination with any other event(s), result in the payment of any amount to any current or former employee,
director, officer or independent contractor of SpinCo that could, individually or in combination with any other such payment, constitute
an “excess parachute payment” as defined in Section 280G(b)(1) of the Code.
(h) Each
SpinCo Benefit Plan that is a “nonqualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of
the Code and the guidance thereunder) is in material compliance in both form and operation with Section 409A of the Code, and no Taxes
are owed (or will be owed, as applicable) under Section 409A(a)(1) for any such plan or arrangement. SpinCo is not under any obligation
to reimburse or gross up any employer or other service provider in respect of any Taxes, including under Section 409A of the Code or Sections
280G or 4999 of the Code.
5.18 Intellectual
Property.
(a) Section
5.18(a) of the SpinCo Disclosure Schedule sets forth a list of, as of the date hereof, all SpinCo Owned Intellectual Property that
is the subject of any registration, issuance, or application for registration or issuance, with any Governmental Authority or Internet
domain name registrar (specifying for each such item (i) the record owner (and, if different from the record owner, the beneficial owner),
(ii) the jurisdiction in which such item has been issued, registered or filed, (iii) the issuance, registration or application date and
(iv) the issuance, registration or application number) (any Intellectual Property set forth or required to be set forth on Section
5.18(a) of the SpinCo Disclosure Schedule, collectively, the “SpinCo Registered Intellectual Property”).
(b) All
SpinCo Registered Intellectual Property that is material to the SpinCo Business is subsisting, and, to the Knowledge of the SpinCo Group,
valid and enforceable. Except as scheduled in Section 5.18(b) of the SpinCo Disclosure Schedule, to the Knowledge of the SpinCo
Group, none of the SpinCo Registered Intellectual Property has been or is subject to any interference, derivation, reexamination, including
ex parte reexamination, inter partes reexamination, inter partes review or post grant review, cancellation or opposition proceeding.
(c) SpinCo
solely and exclusively owns all rights, title and interest in and to the SpinCo Owned Intellectual Property, in each case, free and clear
of all Liens (other than Permitted Liens and the license granted pursuant to Section 7.18(c)) and to the Knowledge of the SpinCo
Group, SpinCo has valid and enforceable rights to use and exploit, pursuant to a written SpinCo Contract, all other Intellectual Property
(except for such other Intellectual Property in the public domain for which no license is necessary) used or practiced by the SpinCo Business
that is material to the SpinCo Business. The SpinCo Intellectual Property constitutes all Intellectual Property (except for such other
Intellectual Property in the public domain for which no license is necessary) used in, and necessary and sufficient for, the conduct and
operation of the SpinCo Business, as currently conducted; provided, that the foregoing representation shall not in any way be construed
as a representation of non-infringement or other violation of the Intellectual Property rights of any Person.
(d) To
the Knowledge of the SpinCo Group, in the past three (3) years, none of the Company or any of its Subsidiaries (excluding SpinCo) (in
each case solely with respect to the SpinCo Business) or SpinCo, the conduct of the SpinCo Business, or any SpinCo Owned Intellectual
Property has infringed, misappropriated (or constituted or resulted from a misappropriation of), or otherwise violated, or is infringing,
misappropriating (or constitutes or results from the misappropriation of), or otherwise violating any Intellectual Property of any Person.
To the Knowledge of the SpinCo Group, none of the Company or any of its Subsidiaries (excluding SpinCo) (in each case solely with respect
to the SpinCo Business) or SpinCo has received from any Person in the past three (3) years any written notice charge, complaint, claim
or other assertion: (i) of any infringement, misappropriation or other violation of any Intellectual Property of any Person or (ii) challenging
the ownership, use, validity or enforceability of any SpinCo Owned Intellectual Property, in each case of clauses (i) and (ii) that is
material to the SpinCo Business as currently conducted.
(e) To
the Knowledge of the SpinCo Group, no other Person has infringed, misappropriated, diluted or violated, or is infringing, misappropriating,
diluting or violating, any SpinCo Owned Intellectual Property or any SpinCo Licensed Intellectual Property exclusively licensed to the
Company or any of its Subsidiaries, in each case, that is material to the SpinCo Business. No such claims have been made in writing or,
to the Knowledge of the SpinCo Group, otherwise made against any Person by the Company or any of its Subsidiaries (excluding SpinCo) (in
each case solely with respect to the SpinCo Business) or SpinCo in the past three (3) years.
(f) To
the Knowledge of the SpinCo Group, the Company and its Subsidiaries (excluding SpinCo) (in each case solely with respect to the SpinCo
Business) and SpinCo have taken and currently take reasonably adequate and commercially reasonable steps to maintain the secrecy and confidentiality
of all Trade Secrets included in the SpinCo Owned Intellectual Property and all Trade Secrets of any Person to whom, the Company or any
of its Subsidiaries (excluding SpinCo) (in each case solely with respect to the SpinCo Business) or SpinCo, has a confidentiality obligation
with respect to such Trade Secrets. No Trade Secret material to the SpinCo Business has been authorized by SpinCo, the Company or any
of its Subsidiaries, to be disclosed (or, to the Knowledge of the SpinCo Group, has been disclosed) to any Person other than (i) pursuant
to a written agreement reasonably restricting the disclosure and use of such Trade Secret or (ii) to a Person who otherwise has a duty
to protect such Trade Secret.
(g) Each
of the past and present employees of, and individuals acting on a consultant or independent contractor basis for, SpinCo, the Company
or any of its Subsidiaries who has been or is engaged in inventing, creating, conceiving or developing any Intellectual Property that
is material to the SpinCo Business as currently conducted for the Company or any of its Subsidiaries (excluding SpinCo) (in each case
solely with respect to the SpinCo Business) or SpinCo, has executed and delivered to the Company or such Subsidiary or SpinCo, as applicable,
a written agreement, pursuant to which such Person (x) agreed to hold all confidential information of the SpinCo Business in confidence
both during and after such Person’s employment or retention, as applicable, and (y) assigned to SpinCo, the Company or such Subsidiary,
as applicable, all of such Person’s rights, title and interest in and to all Intellectual Property invented, created, conceived
or developed in the course of such Person’s employment or engagement thereby (each, a “Personnel IP Contract”).
To the Knowledge of the SpinCo Group, there is no uncured breach by any such Person with respect to any Intellectual Property that is
material to the SpinCo Business as currently conducted under any such Personnel IP Contract.
(h) No
funding, facilities or personnel of any Governmental Authority or any university, college, research institute or other educational institution
has been or is being used to invent, create, conceive or develop, in whole or in part, (i) any SpinCo Owned Intellectual Property or (ii)
to the Knowledge of the SpinCo Group, any SpinCo Licensed Intellectual Property exclusively licensed to SpinCo, the Company or any of
its Subsidiaries, in each case of clauses (i) and (ii), that is material to the SpinCo Business as currently conducted, except for any
such funding or use of facilities or personnel that (A) does not result in such Governmental Authority, university, college, research
institute or other educational institution obtaining or retaining, or having the right to obtain or retain ownership of, or use rights
to (except for use rights during the term of the applicable SpinCo Contract with such Governmental Authority, university, college, research
institute or other educational institution), any SpinCo Owned Intellectual Property, or (B) does not require or otherwise obligate SpinCo,
the Company or any of its Subsidiaries to grant or offer to any Governmental Authority, university, college, research institute or other
educational institution any license or other right to, or covenant not to assert with respect to, any SpinCo Owned Intellectual Property
(except for use rights during the term of the applicable SpinCo Contract with such Governmental Authority, university, college, research
institute or other educational institution).
(i) Neither
the execution of this Agreement or any of the other Transaction Documents nor the consummation of the Transactions will result in the
loss or impairment of, or any Lien on, the payment of any additional consideration, or the reduction of any amount(s) payable in connection
with, any material SpinCo Intellectual Property.
5.19 Environmental
Matters.
(a) Except
as would not otherwise reasonably be expected to have, individually or in the aggregate, a SpinCo Material Adverse Effect:
(i) With
respect to the operation of SpinCo and the SpinCo Business, the Company and its Subsidiaries are, and during the past three (3) years
the Company and its Subsidiaries have been, in compliance with applicable Environmental Laws, which compliance includes obtaining, maintaining,
and complying with all Permits required under Environmental Laws for the operation of the SpinCo Business, all of which Permits are in
full force and effect;
(ii) With
respect to the operation of SpinCo and the SpinCo Business, the Company and its Subsidiaries have not received written notice from any
Governmental Authority or Person alleging any non-compliance with or Liability under any applicable Environmental Law by the Company or
any of its Subsidiaries;
(iii) No
Actions pursuant to any Environmental Law to the extent affecting SpinCo, the SpinCo Business or any SpinCo Assets are pending or threatened
in writing against the Company or any of its Subsidiaries; and
(b) Neither
the Company nor any of its Subsidiaries has Released Hazardous Materials at, on, upon, into or from any Company Real Property at concentrations
or under conditions that would result in the Company or any Subsidiary incurring any Liability that is material to SpinCo under Environmental
Laws.
(c) Except
for the representations and warranties expressly set forth in this Section 5.19, none of the Company, SpinCo, or any other Person
makes any other express or implied representation or warranty with respect to Environmental Laws or Permits thereunder, and none of the
other representations and warranties contained in this Agreement or in any certificate, document or instrument delivered pursuant to this
Agreement will be deemed to be given in relation to Environmental Laws Permits thereunder.
5.20 Affiliate
Matters. Except for Contracts set forth in Section 5.20 of the SpinCo Disclosure Schedule, and Contracts for employment, compensation
or benefit agreements or arrangements with directors, officers and employees made in the ordinary course of business or pursuant to SpinCo
Benefit Plans or Company Benefit Plans, SpinCo is not a party to any SpinCo Affiliate Contract.
5.21 Brokers’
Fees. Except for Maxim Group LLC, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’
fee or other similar commission, for which Parent, Merger Sub or SpinCo would be liable in connection with the transactions contemplated
by this Agreement or any other Transaction Document.
5.22 Proxy
Statement; Registration Statement. None of the information regarding any of the Company or any of its Subsidiaries (including SpinCo),
the SpinCo Business, or the Transactions to be provided by the Company or SpinCo specifically for inclusion in, or incorporation by reference
into, the Proxy Statement or the Parent Registration Statement will, in the case of the Proxy Statement or any amendment or supplement
thereto, at the time of the first mailing of the Proxy Statement and of any amendment or supplement thereto, or, in the case of the Parent
Registration Statement, at the time such registration statement becomes effective, on the date of the Parent Shareholders Meeting, or
at the Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not false or misleading.
5.23 Board
and Shareholder Approval. Each of the Company Board and the board of directors of SpinCo (the “SpinCo Board”),
at a meeting duly called and held or by written consent, has by unanimous vote of all directors present or unanimous consent, approved
this Agreement and the other Transaction Documents and authorized and approved the execution, delivery and performance hereof and thereof
and the consummation of the Transactions, including the Merger. Each of the Company and the SpinCo Board at a meeting duly called and
held or by written consent, has by unanimous vote of all directors present or unanimous consent, declared this Agreement advisable. The
SpinCo Shareholder Approval is the only approval of the shareholders of SpinCo required to approve the Transactions.
5.24 Healthcare
Regulatory Matters.
(a) The
Company and SpinCo are, and have been since their formation, in compliance with all applicable Healthcare Laws, except where such failure
to so comply would not reasonably be expected to materially and adversely impact the SpinCo Business. Neither the Company nor SpinCo has
received any written notice from any Regulatory Authority alleging any material violation of any applicable Healthcare Law. To the Knowledge
of the SpinCo Group, there are no Actions pending or threatened against the Company or any of its Subsidiaries (excluding SpinCo) (in
each case solely with respect to the SpinCo Business) or SpinCo or any of the SpinCo Products or alleging any material violation by the
Company, SpinCo, the SpinCo Business or the SpinCo Products of any such applicable Healthcare Law.
(b) Except
as set forth in Section 5.24(b) of the SpinCo Disclosure Schedule, (i) SpinCo does not hold any Regulatory Authorization, and (ii)
SpinCo does not have any application for a Regulatory Authorization pending with the FDA or any other applicable Regulatory Authority.
(c) Except
as set forth in Section 5.24(c) of the SpinCo Disclosure Schedule, (i) the Company does not hold any Regulatory Authorization in
relation to the SpinCo Business, and (ii) the Company, in relation to the SpinCo Business, does not have any application for a Regulatory
Authorization pending with the FDA or any other applicable Regulatory Authority.
(d) None
of the Company and its Subsidiaries or any person acting on behalf of any of the Company and its Subsidiaries has with respect to any
SpinCo Product: (i) been subject to a shutdown or import or export prohibition imposed by any Regulatory Authority; or (ii) received any
FDA Form 483, or other written notice of inspectional observations, “warning letters,” “untitled letters” or any
similar written correspondence from any Regulatory Authority in respect of such Entity or its business operations, alleging or asserting
material noncompliance with any applicable Healthcare Law or Regulatory Authorization. No Regulatory Authority has threatened such action.
(e) To
the Knowledge of the SpinCo Group, neither SpinCo nor the Company has (i) made an untrue statement of a material fact or a fraudulent
claim or statement to any Regulatory Authority with respect to the SpinCo Business or the SpinCo Products, (ii) failed to disclose a material
fact required to be disclosed to any Regulatory Authority with respect to the SpinCo Business or the SpinCo Products or (iii) committed
an act, made a disclosure, or failed to commit an act or make a disclosure, including with respect to any scientific data or information,
that, at the time of such action, failure to act, disclosure or failure to disclose (as applicable), would reasonably be expected to provide
a basis for the FDA to invoke its policy respecting “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities”,
set forth in 56 Fed. Reg. 46191 (September 10, 1991), and any amendments thereto, or for the FDA or any other Regulatory Authority to
invoke any similar policy, in each case with respect to the SpinCo Business or the SpinCo Products. None of the Company, SpinCo nor, to
the Knowledge of the SpinCo Group, any of their officers, employees or agents has been convicted of any crime or engaged in any conduct
that has resulted in, or would reasonably be expected to result in, debarment from participation in any program related to pharmaceutical
products pursuant to 21 U.S.C. Section 335a (a) or (b) or exclusion from participation in any federal health care program.
5.25 Data
Privacy.
(a) The
Company and its Subsidiaries (excluding SpinCo) (in each case solely with respect to the SpinCo Business) and SpinCo are and have for
the past three (3) years been, in material compliance with all Privacy Requirements. During the past three (3) years, neither the Company
or any of its Subsidiaries (excluding SpinCo) (in each case solely with respect to the SpinCo Business) or SpinCo has received any written
notice of any claims, charges, investigations, or regulatory inquiries related to or alleging the violation of any Privacy Requirements.
(b) The
Company and its Subsidiaries (excluding SpinCo) (in each case solely with respect to the SpinCo Business) and SpinCo, have (i) implemented,
and for the past three (3) years have maintained, commercially reasonable technical and organizational safeguards to protect Personal
Information in its possession or under its control, and (ii) taken commercially reasonable steps to ensure that any third party with access
to any Personal Information collected by or on behalf of the Company or any of its Subsidiaries (excluding SpinCo) (in each case solely
with respect to the SpinCo Business) or SpinCo has implemented and maintained commercially reasonable safeguards with respect to such
third party’s processing of Personal Information.
(c) During
the past three (3) years, to the Knowledge of the SpinCo Group: (i) there have been no material breaches, security incidents, misuse of
or unauthorized access to or disclosure of any Personal Information (“Security Incident”) maintained by the Company
or its Subsidiaries (excluding SpinCo) (in each case solely with respect to the SpinCo Business) or SpinCo; nor (ii) has any Person processing
Personal Information on behalf of the Company or any of its Subsidiaries (excluding SpinCo) (in each case solely with respect to the SpinCo
Business) or SpinCo experienced any Security Incidents with respect to such Personal Information. The Company and its Subsidiaries (excluding
SpinCo) (in each case solely with respect to the SpinCo Business) and SpinCo have implemented reasonable disaster recovery and business
continuity plans.
(d) To
the Knowledge of the SpinCo Group, the transfer of Personal Information in connection with the Transactions will not violate in any material
respect any Privacy Requirements.
5.26 Anti-Bribery,
Anti-Corruption and Anti-Money Laundering. None of the Company or its Subsidiaries (excluding SpinCo) (in each case solely with respect
to the SpinCo Business) or SpinCo or, to the Knowledge of the SpinCo Group, any of their respective directors, officers, employees, agents,
or any other Person acting for or on behalf of the SpinCo Business has, directly or indirectly (a) made, offered, or promised to make
or offer any payment, loan, or transfer of anything of value including any reward, advantage or benefit of any kind, to or for the benefit
of any Government Official, candidate for public office, political party, or political campaign, for the purpose of (i) influencing any
act or decision of such Government Official, candidate, party or campaign, (ii) inducing such Government Official, candidate, party or
campaign to do or omit to do any act in violation of a lawful duty, (iii) obtaining or retaining business for or with any Person, (iv)
expediting or securing the performance of official acts of a routine nature, or (v) otherwise securing any improper advantage; (b) paid,
offered, or promised to pay or offer any bribe, payoff, influence payment, kickback, unlawful rebate, or other similar unlawful payment
of any nature; (c) made, offered or promised to make or offer any contributions, gifts, entertainment, or other unlawful expenditures;
(d) established or maintained any fund of corporate monies or other properties; (e) created or caused the creation of any false or inaccurate
books and records of the Company or its Subsidiaries (excluding SpinCo) (in each case solely with respect to the SpinCo Business) or SpinCo;
or (f) otherwise violated any provision of the Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1, et seq., the Money
Laundering Control Act, the Currency and Foreign Transactions Reporting Act, The Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, or any other Laws relating to corruption, bribery, or money laundering,
in each case of clauses (a)-(e), in a manner that would result in a violation of any of the Laws described in clause (f). None of the
Company or its Subsidiaries (excluding SpinCo) (in each case solely with respect to the SpinCo Business) or SpinCo has made any disclosure
to any Governmental Authority relating to corruption, bribery, or money laundering Laws, been the subject of any investigation or inquiry
regarding compliance with such Laws; or been assessed any fine or penalty under such Laws.
5.27 Sanctions,
Import, and Export Controls. None of the Company or its Subsidiaries (excluding SpinCo) (in each case solely with respect to the SpinCo
Business) or SpinCo or, to the Knowledge of the SpinCo Group, any of their respective directors, officers, employees, agents, or any other
Person acting for or on behalf of the SpinCo Business or SpinCo (a) is a Person with whom transactions are prohibited or limited under
any economic sanctions Laws, including those administered by the U.S. government (including, without limitation, the Department of the
Treasury’s Office of Foreign Assets Control, the Department of State, or the Department of Commerce), the United Nations Security
Council, the European Union, or His Majesty’s Treasury, or (b) has violated any Laws relating to economic sanctions within the last
five (5) years. Within the past five (5) years, none of the Company or its Subsidiaries (excluding SpinCo) (in each case solely with respect
to the SpinCo Business) or SpinCo has violated any Laws related to or made any disclosure to any Governmental Authority relating to sanctions,
customs, import, or export control Laws; to the Knowledge of the SpinCo Group, been the subject of any investigation or inquiry regarding
compliance with such Laws; or been assessed any fine or penalty under such Laws.
5.28 No
Other Representations and Warranties.
(a) Except
as expressly set forth in Article IV and this Article V, neither the Company nor any of its Affiliates (including SpinCo)
is making, and each of the Company and its Affiliates (including SpinCo) expressly disclaims, any representation or warranty, express
or implied, with respect to the Company, its Affiliates (including SpinCo) or the SpinCo Business or with respect to any other information
provided, or made available, to Parent or any of its Affiliates or Representatives in connection with the Transactions, including information,
documents, projections, forecasts or other material made available to Parent, its Affiliates or Representatives in any “data rooms,”
management presentations or otherwise in connection with the Transactions.
(b) Each
of the Company and SpinCo acknowledges that it is not relying on, and that Parent and its Affiliates have not made, any representation
or warranty except as specifically set forth in Article VI.
Article
VI
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
As an inducement to the Company
and SpinCo to enter into this Agreement, except as otherwise disclosed or identified in the corresponding section or subsection of the
Parent Disclosure Schedule, Parent and Merger Sub hereby represent and warrant to the Company and SpinCo as follows:
6.1 Organization
of Parent and Merger Sub.
(a) Parent
has been duly incorporated and is validly existing and in good standing as a Cayman Islands exempted company and has all requisite power
and authority to own, lease and operate its assets in the manner in which such assets are now owned, leased and operated and to conduct
its business as it is now being conducted. Parent has made available to the Company true and complete copies of the Governing Documents
of Parent. Parent is duly licensed or qualified and in good standing (or equivalent status as applicable) in each jurisdiction in which
the assets owned or leased by it or the character of its activities require it to be so licensed or qualified or in good standing (or
equivalent status as applicable).
(b) Merger
Sub is a corporation duly incorporated, validly existing and in good standing under the Laws of Delaware. Merger Sub is a wholly owned
Subsidiary of Parent. The copies of the Governing Documents of Merger Sub which were previously furnished or made available to the Company
are true and complete copies of such documents as in effect on the date of this Agreement.
6.2 Due
Authorization.
(a) Each
of Parent and Merger Sub has all requisite power and authority to execute and deliver this Agreement and the Transaction Documents to
which it is or will be a party at the Effective Time and (subject to the receipt of the Consents described in Section 6.4, the
Parent Shareholder Approval and the Merger Sub Shareholder Approval) to consummate the Transactions. The execution and delivery by each
of Parent and Merger Sub of this Agreement and the Transaction Documents to which it is or will be a party at the Effective Time and the
consummation by each of Parent and Merger Sub of the Transactions have been duly and validly authorized and approved by all necessary
and proper corporate action on its part, and, except for the Parent Shareholder Approval and the Merger Sub Shareholder Approval, no other
corporate action on the part of Parent or Merger Sub is necessary to authorize this Agreement or the Transaction Documents to which it
is or will be a party at the Effective Time. Each of this Agreement and the Transaction Documents to which it is or will be a party at
the Effective Time has been, or when executed and delivered will be, duly and validly executed and delivered by Parent and (assuming that
this Agreement or such other applicable Transaction Documents to which each of the Company or SpinCo is or will be a party at the Effective
Time constitutes a legal, valid and binding obligation of each of the Company and SpinCo (as applicable)) constitutes or will constitute
a legal, valid and binding obligation of Parent and Merger Sub (as applicable), enforceable against Parent and Merger Sub (as applicable)
in accordance with its terms, subject to the Remedies Exception.
(b) Assuming
that a quorum (as determined pursuant to Parent’s Governing Documents) is present:
(i) each
of those Transaction Proposals identified in clauses (A), (B) and (C) of Section 7.4(e)(ii) shall require
approval by a special resolution under the CICA (being the affirmative vote of the holders of at least two-thirds of the ordinary shares
who, being present and entitled to vote at the Parent Shareholders Meeting, vote at the Parent Shareholders Meeting);
(ii) each
of those Transaction Proposals identified in clauses (D), (E), (F) and (I), of Section 7.4(e)(ii),
in each case, shall require approval by an ordinary resolution (being the affirmative vote of the holders of a majority of the ordinary
shares who, being present and entitled to vote at the Parent Shareholders Meeting, vote at the Parent Shareholders Meeting); and
(iii) each
of those Transaction Proposals identified in clauses (G) and (H), of Section 7.4(e)(ii), in each case, shall require
approval by the number of holders of Parent Common Stock required to approve such Transaction Proposals under applicable Law and the Governing
Documents of Parent.
(c) The
foregoing votes are the only votes of any of Parent’s share capital necessary in connection with entry into this Agreement by Parent
and Merger Sub and the consummation of the Transactions, including the Closing.
(d) At
a meeting duly called and held, or by written resolutions of the Parent Board signed by all directors of the Parent in lieu of a meeting,
the Parent Board has unanimously approved the Transactions as a Business Combination.
6.3 Capital
Stock and Other Matters.
(a) As
of the date of this Agreement, the authorized share capital of Parent is 151,000,000 shares, divided into (i) 150,000,000 shares of Parent
Common Stock, 8,941,000 of which are issued and outstanding as of the date of this Agreement, of which the ownership of the Sponsor and
the directors, officers and five (5) percent equity holders of the Parent is set forth in Section 6.3(a) of the Parent Disclosure Schedule,
and (ii) 1,000,000 preferred shares of par value $0.0001 each, of which no shares are issued and outstanding as of the date of this Agreement
((i) and (ii) collectively, the “Parent Securities”). The foregoing represents all of the issued and outstanding Parent
Securities as of the date of this Agreement. All issued and outstanding Parent Securities (i) have been duly authorized and validly issued
and are fully paid and non-assessable; (ii) have been offered, sold and issued in compliance with applicable Law, including federal and
state securities Laws, and all requirements set forth in (1) Parent’s Governing Documents, and (2) any other applicable Contracts
governing the issuance of such securities; and (iii) are not subject to, nor have they been issued in violation of, any purchase option,
call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of any applicable Law,
Parent’s Governing Documents or any Contract to which Parent is a party or otherwise bound.
(b) As
of the date of this Agreement, 6,994,000 Parent Rights are issued and outstanding, of which the ownership of the Sponsor, and the directors,
officers and five (5) percent equity holders of the Parent are set forth in Section 6.3(b) of the Parent Disclosure Schedule. As
of immediately following the Domestication, all Parent Rights will convert into 6,994,000 Domesticated Parent Rights. All outstanding
Parent Rights have been or are (i) duly authorized and validly issued and constitute valid and binding obligations of Parent, enforceable
against Parent in accordance with their terms, subject to the Remedies Exemption; (ii) offered, sold and issued in compliance with applicable
Law, including federal and state securities Laws, and all requirements set forth in (1) Parent’s Governing Documents and (2) any
other applicable Contracts governing the issuance of such securities; and (iii) not subject to, nor have they been (or will be) issued
in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under
any provision of any applicable Law, Parent’s Governing Documents or any Contract to which Parent is a party or otherwise bound.
Except for Parent’s Governing Documents and this Agreement, there are no outstanding Contracts of Parent to repurchase, redeem or
otherwise acquire any Parent Securities. Subject to the terms of conditions of the Rights Agreement, at the Closing, each Domesticated
Parent Right will automatically convert into two-tenths (2/10) of one share of Domesticated Parent Common Stock.
(c) Except
as disclosed in the Parent SEC Filings, as set forth in Section 6.3(c) of the Parent Disclosure Schedule, or as contemplated by
this Agreement or the other documents contemplated hereby, Parent has not granted any outstanding options, stock appreciation rights,
warrants, rights or other securities convertible into or exchangeable or exercisable for Parent Securities, or any other commitments or
agreements providing for the issuance of additional shares, the sale of treasury shares, for the repurchase or redemption of any Parent
Securities or the value of which is determined by reference to the Parent Securities, and there are no Contracts of any kind which may
obligate Parent to issue, purchase, redeem or otherwise acquire any of its Parent Securities. Parent is not a party to any voting trusts,
voting agreements, proxies, shareholder agreements or other agreements with respect to the voting or transfer of Parent Common Stock or
any of the equity interests or other securities of Parent.
(d) Subject
to obtaining the Parent Shareholder Approval, the shares of Domesticated Parent Common Stock comprising the Merger Consideration, when
issued in accordance with the terms hereof, shall be duly authorized and validly issued, fully paid and non-assessable and issued in compliance
with all applicable state and federal securities Laws and not subject to, and not issued in violation of, any Lien, purchase, option,
call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of applicable Law,
Parent’s Governing Documents, or any Contract to which Parent is a party or otherwise bound.
(e) Parent
has no Subsidiaries apart from Merger Sub, and does not own, directly or indirectly, any Interest or other interest or investment (whether
equity or debt) in any Person, whether incorporated or unincorporated (each, an “Investment”). Parent is not party
to any Contract that obligates Parent to invest money in, loan money to or make any capital contribution to any other Person.
6.4 Governmental
Consents. No consent, waiver, approval or authorization of, or designation, declaration or filing with, or notification to, any Governmental
Authority or other Person is required on the part of Parent or Merger Sub with respect to Parent’s or Merger Sub’s execution
or delivery of this Agreement or the consummation of the Transactions, except for or in compliance with (a) any Premerger Notification
and Report Form required under and compliance with the HSR Act; (b) the filing of the Certificate of Merger with the Secretary of State
of the State of Delaware pursuant to the provisions of the DGCL; (c) the rules and regulations of NASDAQ; (d) applicable requirements
of state securities or “blue sky” Laws, the Securities Act and the Exchange Act; (e) in connection with the Domestication,
the filing of a certificate of domestication and the Parent Charter with the Secretary of State of the State of Delaware pursuant to the
provisions of the DGCL and the applicable requirements and required approval of the Cayman Registrar; and (f) as otherwise disclosed on
Section 6.4 of the Parent Disclosure Schedule.
6.5 No
Conflict. Subject to the receipt of the Consents described in Section 6.4 and the Parent Shareholder Approval, the execution
and delivery by each of Parent and Merger Sub of this Agreement and the other Transaction Documents to which it is or will be a party
at the Effective Time and the consummation by Parent and Merger Sub of the Transactions do not and will not as of the Closing Date: (a)
violate any provision of, or result in the material breach of, any Law applicable to Parent and the Parent Subsidiaries or by which any
of its assets or properties is bound; (b) with or without lapse of time or the giving of notice or both, require a consent or approval
under, conflict with, result in a violation or breach of, or constitute a default under, result in the acceleration of, or create in any
party the right to accelerate, terminate or cancel any Parent Material Contract; (c) result in the creation of any Lien upon any of the
properties or assets of Parent or Merger Sub; or (d) violate any provision of the Governing Documents of Parent, or Merger Sub, except,
in the case of clauses (a) and (b), to the extent that such conflicts, breaches, defaults or other matters would not materially and adversely
affect the ability of Parent and Merger Sub to carry out their respective obligations under, and to consummate the transactions contemplated
by, this Agreement and the Transaction Documents. None of Parent, Merger Sub, or Sponsor is a “foreign person” in which a
“foreign government” has a “substantial interest,” as such terms are defined in 31 C.F.R. Part 800.
6.6 Internal
Controls; Listing; Financial Statements.
(a) Except
as not required in reliance on exemptions from various reporting requirements by virtue of Parent’s status as an “emerging
growth company” within the meaning of the Securities Act, as modified by the Jumpstart Our Business Startups Act of 2012 (“JOBS
Act”), Parent has established and maintains disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange
Act). Such disclosure controls and procedures are designed to ensure that material information relating to Parent, including its consolidated
Subsidiaries, if any, is made known to Parent’s principal executive officer and its principal financial officer by others within
those entities as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant
to Sections 302 and 906 of the Sarbanes-Oxley Act, particularly during the periods in which the periodic reports required under the Exchange
Act are being prepared. To the Parent’s Knowledge, such disclosure controls and procedures are effective in timely alerting Parent’s
principal executive officer and principal financial officer to material information required to be included in Parent’s periodic
reports required under the Exchange Act. Parent has established and maintained a system of internal controls over financial reporting
(as defined in Rule 13a-15 under the Exchange Act) that are designed to and, to the Parent’s Knowledge, are sufficient to provide,
reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements
for external purposes in accordance with GAAP, including policies and procedures sufficient to provide reasonable assurance: (i) that
Parent maintains records that in reasonable detail fairly reflect, in all material respects, its transactions and dispositions of assets
of Parent; (ii) that transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP;
(iii) that receipts and expenditures are being made only in accordance with authorizations of management and Parent Board; and (iv) regarding
prevention or timely detection of unauthorized acquisition, use or disposition of its assets that could have a material effect on its
financial statements. Parent has not received written notice from any Governmental Authority or Person alleging, and to the Parent’s
Knowledge there have been no, significant deficiencies or material weakness in Parent’s internal control over financial reporting
(whether or not remediated). Since June 30, 2023, there has been no change in Parent’s control over financial reporting that has
materially affected, or is reasonably likely to materially affect, Parent’s internal control over financial reporting.
(b) As
of the date hereof, each director and executive officer of Parent has filed with the SEC on a timely basis all statements required by
Section 16(a) of the Exchange Act and the rules and regulations promulgated thereunder. The Parent has not taken any action prohibited
by Section 402 of the Sarbanes-Oxley Act.
(c) The
financial statements and notes contained or incorporated by reference in the Parent SEC Filings (the “Parent Financial Statements”)
(i) accurately and fairly present in all material respects the financial condition and the results of operations, changes in stockholders’
equity and cash flows of Parent as at the respective dates of, and for the periods referred to, in such financial statements, all in accordance
with GAAP, and (ii) comply in all material respects with the applicable accounting requirements and with the rules and regulations of
Regulation S-X or Regulation S-K, as applicable, subject, in the case of interim financial statements, to normal recurring year-end adjustments
(the effect of which will not, individually or in the aggregate, be material) and the omission of notes to the extent permitted by Regulation
S-X or Regulation S-K, as applicable. Parent has no off-balance sheet arrangements (as defined by Regulation S-K) that are not disclosed
in the Parent SEC Filings. No financial statements other than those of Parent are required by GAAP to be included in the Parent Financial
Statements.
(d) There
are no outstanding loans or other extensions of credit made by Parent to any executive officer (as defined in Rule 3b-7 under the Exchange
Act) or director of Parent. Parent has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.
(e) Neither
Parent (including any employee thereof) nor Parent’s independent auditors has identified or been made aware of (i) any significant
deficiency or material weakness in the system of internal accounting controls utilized by Parent, (ii) any Actual Fraud, whether or not
material, that involves Parent’s management or other employees who have a role in the preparation of the Parent Financial Statements
or the internal accounting controls utilized by Parent or (iii) any claim or allegation regarding any of the foregoing.
6.7 No
Undisclosed Liabilities. Except for the Parent Transaction Expenses, there is no liability, debt or obligation of or claim or judgment
against Parent or Merger Sub (whether direct or indirect, absolute or contingent, accrued or unaccrued, known or unknown, liquidated or
unliquidated, or due or to become due), except for liabilities and obligations (i) reflected or reserved for on the financial statements
or disclosed in the notes thereto included in Parent SEC Filings, (ii) that have arisen since the date of the most recent balance sheet
included in the Parent SEC Filings in the ordinary course of business of Parent and Merger Sub, or (iii) which, individually or in the
aggregate, would not be, or would not reasonably be expected to be, material to Parent.
6.8 Litigation
and Proceedings. As of the date of this Agreement, there are no pending or, to the Knowledge of Parent, threatened Actions against
Parent or Merger Sub, their respective properties or assets, or, to the Knowledge of Parent, any of their respective directors, managers,
officers or employees (in their capacity as such). As of the date of this Agreement, there are no investigations or other inquiries pending
or, to the Knowledge of Parent, threatened by any Governmental Authority, against Parent or Merger Sub, their respective properties or
assets, or, to the Knowledge of Parent, any of their respective directors, managers, officers or employees (in their capacity as such).
As of the date of this Agreement, there is no outstanding Order imposed upon Parent or Merger Sub, nor are any assets of Parent or Merger
Sub’s respective businesses bound or subject to any Order the violation of which would, individually or in the aggregate, reasonably
be expected to have a Parent Material Adverse Effect. From their respective dates of inception to the date of this Agreement, Parent and
Merger Sub have not received any written notice of or been charged with the violation of any Laws, except where such violation has not
had, or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
6.9 Tax
Matters.
(a) Except
as would not, individually or in the aggregate, have a Parent Material Adverse Effect:
(i) (A)
All Tax Returns required to be filed by Parent or Merger Sub have been timely filed (taking into account applicable extensions), (B) all
such Tax Returns are true, correct and complete, and (C) all Taxes, whether or not shown as due on such Tax Returns, have been paid; in
the case of each of clauses (A) through (C), except to the extent adequate reserves therefor in accordance with GAAP have been provided
on the Parent Financial Statements.
(ii) (A)
No Governmental Authority has asserted any written claim, assessment or deficiency for Taxes against Parent or any Parent Subsidiary (and,
to the Knowledge of Parent, no such claim, assessment or deficiency has been threatened or proposed in writing), except for deficiencies
or proposed deficiencies that have been satisfied by payment, settled or withdrawn, and (B) no claim, audit or other proceeding by any
Governmental Authority is pending or threatened in writing with respect to any Taxes of Parent or Merger Sub;
(iii) Parent
and Merger Sub have no outstanding waivers or extensions of any applicable statute of limitations to assess any material amount of Taxes.
There are no outstanding requests by Parent or Merger Sub for any extension of time within which to file any Tax Return or within which
to pay any Taxes shown to be due on any Tax Return;
(iv) Neither
Parent nor any Parent Subsidiary has any Liability for Taxes of any other Person (other than Parent or any Parent Subsidiary) under Treasury
Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law), as a transferee or successor or by contract or
operation of Law or otherwise;
(v) Within
the past two (2) years, neither Parent nor any Parent Subsidiary has constituted either a “distributing corporation” or a
“controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify
for tax-free treatment under Section 355 of the Code;
(vi) Neither
Parent nor any Parent Subsidiary has participated in, or is currently participating in, a “listed transaction” within the
meaning of Treasury Regulations Section 1.6011-4(b)(2);
(vii) There
are no Liens for Taxes (other than Permitted Liens) upon the assets of Parent or Merger Sub;
(viii) Neither
Parent nor Merger Sub will be required to include any material item of income in, or exclude any material 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
for a taxable period ending on or prior to the Closing Date under Section 481(c) of the Code (or any corresponding or similar provision
of state, local or foreign income Tax Law); (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding
or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing Date; or (iii) installment sale made
on or prior to the Closing Date;
(ix) Neither
Parent nor Merger Sub has been a member of an affiliated group filing a consolidated, combined or unitary U.S. federal, state, local or
foreign income Tax Return;
(x) Neither
Parent nor Merger Sub has any request for a ruling in respect of Taxes, technical advice memorandum, closing agreement or similar ruling,
memorandum, or agreement pending between Parent or Merger Sub, on the one hand, and any Tax authority, on the other hand; nor is any such
request outstanding; and
(xi) Neither
Parent nor Merger Sub is a party to, is bound by or has an obligation under any Tax sharing agreement, Tax indemnification agreement,
Tax allocation agreement or similar contract or arrangement (including any agreement, contract or arrangement providing for the sharing
or ceding of credits or losses, any advance pricing agreement, closing agreement or other agreement relating to Taxes with any taxing
authority) or has a potential liability or obligation to any person as a result of or pursuant to any such agreement, contract, arrangement
or commitment other than an agreement, contract, arrangement or commitment the primary purpose of which does not relate to Taxes and which
is not entered into with any affiliate or direct or indirect owner of Parent.
(b) Neither
Parent nor Merger Sub has taken or agreed to take any action or knows of any fact, agreement, plan or other circumstance that could reasonably
be expected to (i) prevent or impede (A) the Domestication from qualifying as a “reorganization” within the meaning of Section
368(a)(1)(F), or (B) the Tax-Free Status; or (ii) cause there to be any Tax imposed on any of the Parties by reason of the Domestication.
(c) As
of the date of this Agreement it is the present intention, and as of the day of the Effective Time it will be the present intention, of
Parent to continue, either through Parent or through a member of Parent’s “qualified group” within the meaning of Treasury
Regulations Section 1.368-1(d)(4)(ii) (the “Qualified Group”), at least one significant historic business line of SpinCo,
or to use at least a significant portion of SpinCo‘s historic business assets in a business, in each case within the meaning of
Treasury Regulations Section 1.368-1(d). As of the date of this Agreement and as of the date of the Effective Time, neither Parent nor
any “related person” (as defined in Treasury Regulations Section 1.368-1(e)(4)) to Parent has or will have any plan or intention
to redeem or reacquire, either directly or indirectly, any of the Domesticated Parent Common Stock issued to any holder of SpinCo Common
Stock in connection with the Merger. As of the date of this Agreement and as of the date of the Effective Time, Parent does not have and
will not have any plan or intention to sell or otherwise dispose of any of the assets of SpinCo acquired in the Merger, except for dispositions
made in the ordinary course of business or transfers described in Section 368(a)(2)(C) of the Code or described and permitted in Treasury
Regulations Section 1.368-2(k).
(d) Merger
Sub was formed solely for the purpose of engaging in the Merger, and does not have any assets and has not engaged in any business activities
or conducted any operations other than in connection with the Merger; and
(e) The
representations and warranties set forth in this Section 6.9 or in Section 6.19 constitute the sole and exclusive representations
and warranties of Parent regarding Tax matters.
6.10 Absence of Changes.
(a) Since
June 30, 2023, until the date of this Agreement, (a) there has not been any event or occurrence that has had, or would not reasonably
be expected to have, individually or in the aggregate a Parent Material Adverse Effect, and (b) except as set forth in Section 6.10
of the Parent Disclosure Schedule or as contemplated by this Agreement and the other Transaction Documents, Parent and Merger Sub
have, in all material respects, conducted their business and operated their properties in the ordinary course of business consistent with
past practice.
(b) Except
as disclosed in Parent SEC Filings that were filed or furnished on or after June 30, 2023, Parent has not taken any action that, if taken
during the period from the date of this Agreement through the Closing, would require the consent of the Company or SpinCo pursuant to
Section 7.1.
6.11 Brokers’ Fees.
No broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other similar commission,
for which Parent, Merger Sub or SpinCo would be liable in connection with the transactions contemplated by this Agreement based upon
arrangements made by Parent or any Parent Subsidiary.
6.12
Proxy Statement; Registration Statement. None of the information regarding Parent,
Merger Sub or the Transactions to be provided by Parent specifically for inclusion in, or incorporation by reference into, the Proxy
Statement or the Parent Registration Statement will, in the case of the Proxy Statement or any amendment or supplement thereto, at the
time of the first mailing of the Proxy Statement and of any amendment or supplement thereto, or, in the case of the Parent Registration
Statement, at the time the registration statement becomes effective, on the date of the Parent Shareholders Meeting, and at the Effective
Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under which they are made, not false or misleading. The Proxy
Statement and the Parent Registration Statement will comply as to form in all material respects with the provisions of the Securities
Act and the Exchange Act, as the case may be, except that no representation is made by Parent with respect to information provided by
the Company or SpinCo specifically for inclusion in, or incorporation by reference into, the Proxy Statement or the Parent Registration
Statement.
6.13 SEC Filings.
Parent has timely filed or furnished all statements, prospectuses, registration statements, forms, reports and documents required to
be filed by it with the SEC pursuant to the Exchange Act or the Securities Act (collectively, as they have been amended since the time
of their filing through the date hereof, the “Parent SEC Filings”). Each of the Parent SEC Filings, as of the respective
date of its filing (or if amended or superseded by a filing prior to the date of this Agreement or the Closing Date, then on the date
of such filing), complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act, the Sarbanes-Oxley
Act and any rules and regulations promulgated thereunder applicable to the Parent SEC Filings. As of the respective date of its filing
(or if amended or superseded by a filing prior to the date of this Agreement or the Closing Date, then on the date of such filing), the
Parent SEC Filings did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading. As of the
date hereof, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Parent SEC
Filings. To the Knowledge of Parent, none of the Parent SEC Filings filed on or prior to the date hereof is subject to ongoing SEC review
or investigation as of the date hereof.
6.14
Trust Account. As of the date of this Agreement, Parent has at least $70,929,382 in
the Trust Account, such monies invested in United States government securities or money market funds meeting certain conditions under
Rule 2a-7 promulgated under the Investment Company Act pursuant to the Investment Management Trust Agreement, dated as of October 13,
2022, between Parent and American Stock Transfer & Trust Company, LLC, as trustee (the “Trustee”)
(the “Trust Agreement”). The Trust Agreement has not been amended or modified,
other than to permit any Parent Share Redemptions, and is valid and in full force and effect and is enforceable in accordance with its
terms, and no termination, repudiation, rescission, amendment, supplement or modification is contemplated. There are no separate Contracts,
side letters or other arrangements or understandings (whether written or unwritten, express or implied) that would cause the description
of the Trust Agreement in the Parent SEC Filings to be inaccurate or that would entitle any Person (other than the Parent Shareholders
holding shares of Parent Common Stock sold in Parent’s initial public offering who elect to redeem their shares of Parent Common
Stock pursuant to Parent’s Governing Documents and the underwriters of Parent’s initial public offering with respect to deferred
underwriting commissions) to any portion of the proceeds in the Trust Account. Prior to the Closing, none of the funds held in the Trust
Account may be released other than (i) to pay Taxes, (ii) to make payments with respect to all Parent Share Redemptions or (iii) to commence
liquidation in accordance with and as required by the Trust Agreement (taking into account any amendments to the Trust Agreement providing
for a longer period of time before the Trust Account is required to be liquidated, including, as applicable, the Second Extension, Third
Extension, and Fourth Extension). There are no Actions pending or, to the Knowledge of Parent, threatened with respect to the Trust Account.
Parent has performed all material obligations required to be performed by it to date under, and is not in material default, breach or
delinquent in performance or any other respect (claimed or actual) in connection with, the Trust Agreement, as it may be amended in accordance
with the terms of this Agreement, and no event has occurred which, with due notice or lapse of time or both, would constitute such a
default or breach thereunder. As of the Effective Time, the obligations of Parent to dissolve or liquidate pursuant to Parent’s
Governing Documents shall terminate, and as of the Effective Time, Parent shall have no obligation whatsoever pursuant to Parent’s
Governing Documents to dissolve and liquidate the assets of Parent by reason of the consummation of the Transactions. To Parent’s
Knowledge, as of the date hereof, following the Effective Time, no shareholder of Parent shall be entitled to receive any amount from
the Trust Account except to the extent such shareholder of Parent is exercising a Parent Share Redemption. As of the date hereof, assuming
the accuracy of the representations and warranties of the Company contained herein and the compliance by the Company and SpinCo with
its obligations hereunder and under the other Transaction Documents, neither Parent nor Merger Sub has any reason to believe that any
of the conditions to the use of funds in the Trust Account will not be satisfied or funds available in the Trust Account will not be
available to Parent and Merger Sub on the Closing Date.
6.15 Investment
Company Act; JOBS Act. Parent is not an “investment company” or a Person directly or indirectly “controlled”
by or acting on behalf of an “investment company”, in each case within the meaning of the Investment Company Act. Parent constitutes
an “emerging growth company” within the meaning of the JOBS Act.
6.16 Indebtedness.
Section 6.16 of the Parent Disclosure Schedule sets forth the principal amount of all of the outstanding indebtedness, as of the
date hereof, of Parent and Merger Sub.
6.17 Stock
Market Quotation. As of the date hereof, the Parent Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is
listed for trading on NASDAQ under the symbol “TENK”. As of the date hereof, the Parent Rights are registered pursuant to
Section 12(b) of the Exchange Act and are listed for trading on NASDAQ under the symbol “TENKR.” As of the date hereof, the
Parent Units are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on NASDAQ under the symbol “TENKU.”
There is no Action, Order, or proceeding pending or, to the Knowledge of Parent, threatened against Parent by NASDAQ or the SEC with respect
to any intention by such entity to deregister the Parent Common Stock or Parent Rights or terminate the listing of Parent Common Stock
or Parent Rights on NASDAQ. None of Parent, Merger Sub or their respective Affiliates has taken any action in an attempt to terminate
the registration of the Parent Common Stock or Parent Rights under the Exchange Act except as contemplated by this Agreement. Parent has
not received written notice from any Governmental Authority or Person alleging any non-compliance with the applicable listing and corporate
governance rules and regulations of NASDAQ. As of the date hereof, to the Knowledge of Parent, Parent is in compliance in all material
respects with the applicable listing and corporate governance rules and regulations of NASDAQ.
6.18 Business
Activities.
(a) Since
formation, neither Parent nor Merger Sub have conducted any business activities other than activities related to Parent’s initial
public offering or directed toward the accomplishment of a Business Combination. Except as set forth in Parent’s Governing Documents
or as otherwise contemplated by this Agreement or the Transaction Documents and the Transactions and thereby, there is no agreement, commitment,
or Order binding upon Parent or Merger Sub or to which Parent or Merger Sub is a party which has or would reasonably be expected to have
the effect of prohibiting or impairing any business practice of Parent or Merger Sub or any acquisition of property by Parent or Merger
Sub or the conduct of business by Parent or Merger Sub as currently conducted or as contemplated to be conducted as of the Closing, other
than such effects which have not been and would not reasonably be expected to materially and adversely affect Parent.
(b) Except
for Merger Sub and the Transactions, Parent does not own or have a right to acquire, directly or indirectly, any Investment in any corporation,
partnership, joint venture, business, trust or other Entity. Except for this Agreement and the Transaction Documents and the Transactions
contemplated hereby and thereby, Parent has no material interests, rights, obligations or Liabilities with respect to, and is not party
to, bound by or has its assets or property subject to, in each case whether directly or indirectly, any Contract or transaction which
is, or would reasonably be interpreted as constituting, a Business Combination. Except for the Transactions, Merger Sub does not own or
have a right to acquire, directly or indirectly, any Investment in any corporation, partnership, joint venture, business, trust or other
Entity.
(c) Merger
Sub was formed solely for the purpose of effecting the Transactions and has not engaged in any business activities or conducted any operations
other than incident to the Transactions and has no, and at all times prior to the Effective Time, except as expressly contemplated by
this Agreement, the Transaction Documents and the other documents and Transactions, will have no, assets, liabilities or obligations of
any kind or nature whatsoever other than those incident to its formation.
(d) As
of the date hereof and except for this Agreement, the Transaction Documents and the Transactions (other than with respect to expenses
and fees incurred in connection therewith and the Business Combination), neither Parent nor Merger Sub is party to any Contract with any
other Person that would require payments by Parent or any of its Subsidiaries after the date hereof in excess of $100,000 in the aggregate
with respect to any individual Contract.
(e) Section
6.18 of the Parent Disclosure Schedule lists all material Contracts, oral or written to which Parent or Merger Sub is a party or by
which Parent’s or Merger Sub’s assets is bound as of the date hereof, other than those Contracts that are included in the
Parent SEC Filings and are available in full without redaction on the SEC’s EDGAR database.
6.19 Section
280G. Neither the execution and delivery of this Agreement nor the consummation of the Transactions contemplated hereby or by the
Transaction Documents, either alone or in connection with any other event(s), will result in the payment of any amount to any current
or former employee, officer, director or independent contractor of Parent or other Person that could, individually or in the aggregate,
or in combination with any other such payment, constitute an “excess parachute payment” as defined in Section 280G(b)(1) of
the Code.
6.20 Sanctions,
Import, and Export Controls. None of Parent or its Subsidiaries or any of their respective directors, officers, employees, agents,
or any other Person acting for or on behalf of Parent or its Subsidiaries (a) is a Person with whom transactions are prohibited or limited
under any economic sanctions Laws, including those administered by the U.S. government (including, without limitation, the Department
of the Treasury’s Office of Foreign Assets Control, the Department of State, or the Department of Commerce), the United Nations
Security Council, the European Union, or His Majesty’s Treasury, or (b) has violated any Laws relating to economic sanctions within
the last five (5) years. Within the past five (5) years, none of Parent or its Subsidiaries has violated any Laws related to or made any
disclosure to any Governmental Authority relating to sanctions, customs, import, or export control Laws; to the Knowledge of Parent, been
the subject of any investigation or inquiry regarding compliance with such Laws; or been assessed any fine or penalty under such Laws.
6.21 No
Other Representations and Warranties.
(a) Except
as for the representations and warranties set forth in this Article VI neither Parent nor any of its Affiliates is making, and Parent
expressly disclaims, any representation or warranty, express or implied, with respect to Parent or its Affiliates, or their respective
businesses with respect to any other information provided, or made available, to the Company or any of its Affiliates or Representatives
in connection with the Transactions, including information, documents, projections, forecasts or other material made available to the
Company, its Affiliates or Representatives in any “data rooms,” management presentations or otherwise in connection with the
Transactions.
(b) Each
of Parent and Merger Sub acknowledges that it is not relying on, and that the Company and its Affiliates have not made, any representation
or warranty except as specifically set forth in Article IV and Article V.
Article
VII
COVENANTS
7.1 Conduct
of Business by Parent and Merger Sub Pending the Merger.
(a) From
the date hereof and prior to the Effective Time (or the earlier termination of this Agreement) (the “Interim Period”),
except (i) as required or otherwise expressly contemplated by this Agreement (including as set forth in Section 7.1 of the Parent
Disclosure Schedule), the Transaction Documents, or in connection with the Domestication, (ii) as consented to by the Company in writing
(which consent shall not be unreasonably withheld, conditioned, delayed or denied) or (iii) as required by applicable Law, Order or other
directive by a Governmental Authority (including any COVID-19 Measures), Parent shall, and shall cause its Subsidiaries (including Merger
Sub), to conduct its operations in the ordinary course of business in all material respects. During the Interim Period, Parent shall,
and shall cause its Subsidiaries (including Merger Sub) to comply with, and continue performing under, as applicable, the Governing Documents
of Parent, the Trust Agreement and all other agreements or Contracts to which Parent or its Subsidiaries may be a party. In addition to,
and not in limitation of, the restrictions set forth in this Section 7.1, from the date hereof through the Effective Time, Parent
shall remain a “blank check company” as defined under the Securities Act, shall not conduct any business operations other
than in connection with this Agreement and ordinary course operations to maintain its status as a Nasdaq-listed special purpose acquisition
company pending the completion of the Transactions.
(b) Without
limiting the generality of Section 7.1(a), during the Interim Period, except (x) as required or otherwise expressly contemplated
by this Agreement, the Transaction Documents, or in connection with the Domestication, (y) as consented to by the Company in writing (which
consent shall not be unreasonably withheld, conditioned, delayed or denied, other than with respect to subsection (b)(ii), with respect
to which consent may be withheld at the Company’s sole discretion) or (z) as required by applicable Law, Order or other directive
by a Governmental Authority (including any COVID-19 Measures), Parent shall not, and shall cause its Subsidiaries, including Merger Sub,
as applicable, not to:
(i) seek
any approval from the Parent Shareholders to amend, modify, restate, waive, rescind or otherwise change the Trust Agreement or the Governing
Documents of Parent or Merger Sub (other than as contemplated by the Transaction Proposals, the extensions provided for under Section
7.16(a), and to permit any Parent Share Redemptions);
(ii) (A)
make or declare any dividend or distribution to the Parent Shareholders or make any other distributions in respect of any of Parent’s
equity interests or Merger Sub capital stock, share capital or equity interests, (B) split, combine, reclassify or otherwise amend any
terms of any shares or series of Parent’s equity interests or Merger Sub capital stock or equity interests, or (C) purchase, repurchase,
redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership
interests, warrants or other equity interests of Parent or Merger Sub, other than a redemption of shares of Parent Common Stock made as
part of the Parent Share Redemptions;
(iii) (A)
make, change or revoke any material Tax election or (B) settle or compromise any material Tax liability;
(iv) amend
the Trust Agreement or any other agreement related to the Trust Account (other than in relation to the extensions provided for under Section
7.16(a) and to permit any Parent Share Redemptions), or enter into, renew or amend in any material respect, any transaction or Contract
with the Sponsor or an Affiliate of the Sponsor, solely to the extent such transaction or Contract directly relates, or would relate,
to the Transactions or any Transaction Document;
(v) incur
or assume any indebtedness or Liability or guarantee any indebtedness or Liability of another Person (other than indebtedness, not to
exceed $500,000, that is incurred by Parent or Merger Sub as Parent Transaction Expenses, and, to the extent outstanding as of the Closing
Date, payable as Parent Transaction Expenses), issue or sell any debt securities or warrants or other rights to acquire any debt securities
of the Company or any of the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any indebtedness;
(vi) (A)
issue any Parent Securities or securities exercisable for or convertible into Parent Securities, other than issuances contemplated by
the Transactions, (B) grant any options, warrants or other equity-based awards with respect to Parent Securities not outstanding on the
date hereof or (C) amend, modify or waive any of the material terms or rights set forth in any Parent Right or the Rights Agreement;
(vii) grant
or provide any change-in-control, severance, termination, retention, success-based payment, or other payments or benefits to any employee
of or consultant to Parent; or
(viii) enter
into any agreement to do any action prohibited under this Section 7.1.
7.2 Conduct
of the Company and SpinCo Business Pending the Merger.
(a) During
the Interim Period (solely with respect to the SpinCo Business), except (i) as required or otherwise expressly contemplated by this Agreement
(including as set forth in Section 7.2 of the SpinCo Disclosure Schedule) or the Transaction Documents, (ii) as consented to by
Parent in writing (which consent shall not be unreasonably withheld, conditioned or delayed other than with respect to Section 7.2(b)(vi)
below, with respect to which consent may be withheld at the Parent’s sole discretion), (iii) as required by applicable Law, Order
or other directive by a Governmental Authority (including, any COVID-19 Measures), or (iv) as undertaken substantially consistent with
the Commercialization Plan, the Company and SpinCo shall (x) use commercially reasonable efforts to conduct the SpinCo Business in the
ordinary course of business and consistent with past practices in all material respects, (y) use commercially reasonable efforts to manage
the SpinCo Business’ working capital and maintain the books and records related to the SpinCo Business consistent with past practice
and (z) use commercially reasonable efforts to maintain their respective relations and goodwill with all material suppliers, material
customers and other material commercial counterparties and Governmental Authorities (in each case, as related to the SpinCo Business).
(b) Without
limiting the generality of Section 7.2(a), during the Interim Period (solely with respect the SpinCo Business), except (A) as required
or contemplated by this Agreement (including as set forth in Section 7.2 of the SpinCo Disclosure Schedule) or the Transaction
Documents, (B) as consented to by Parent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or (C)
as required by applicable Law, Order or other directive by a Governmental Authority (including any COVID-19 Measures), the Company (solely
with respect to the SpinCo Business) and SpinCo shall not:
(i) amend,
modify, restate, waive, rescind or otherwise change the Governing Documents of SpinCo;
(ii) (A)
split, combine, subdivide, reduce, or reclassify shares of SpinCo Common Stock or issue or authorize or propose the issuance of any other
securities in respect of, in lieu of, or in substitution for, shares of SpinCo Common Stock, or (B) redeem, repurchase or otherwise acquire
shares of SpinCo Common Stock (including any securities convertible or exchangeable into SpinCo Common Stock);
(iii) issue,
sell, pledge, dispose of, grant, transfer or encumber, any shares of capital stock of SpinCo or securities convertible into, or exchangeable
or exercisable for, any shares of such capital stock in SpinCo, or any options, warrants, stock units, or other rights of any kind to
acquire any shares of capital stock or other Interests or such convertible or exchangeable securities, or any other ownership interest
(including any such interest represented by Contract right), or any “phantom” stock, “phantom” stock rights, stock
appreciation rights or stock-based performance rights, in each case, of SpinCo, other than the issuance of capital stock or other Interests
upon the exercise, vesting or settlement of any equity awards of the Company outstanding as of the date hereof and, in each case, in accordance
with their respective terms as in effect as of the date hereof;
(iv) sell,
assign, transfer, convey, lease, license, abandon, mortgage, pledge or permit any Lien on (other than a Permitted Lien) or otherwise dispose
of any SpinCo Assets (excluding Intellectual Property, which is the subject of Section 7.2(b)(v) below);
(v) purchase,
sell, license, sublicense, lease, pledge, covenant not to assert, assign, transfer, abandon, cancel, let lapse or expire, or otherwise
dispose, transfer or grant any other rights in or with respect to any SpinCo Owned Intellectual Property or SpinCo Licensed Intellectual
Property (other than with respect to (A) immaterial or obsolete SpinCo Owned Intellectual Property or (B) the grant of non-exclusive licenses
of SpinCo Owned Intellectual Property in the ordinary course of business consistent with past practice);
(vi) merge,
combine or consolidate (pursuant to a plan of merger or otherwise) SpinCo with any Person or adopt a plan of complete or partial liquidation
or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of
SpinCo;
(vii) repurchase,
repay, prepay, refinance or incur any indebtedness for borrowed money, issue any debt securities, engage in any securitization transactions
or similar arrangements or assume, guarantee or endorse, or otherwise as an accommodation become responsible for (whether directly, contingently
or otherwise), the obligations of any Person for borrowed money other than in the ordinary course of business consistent with past practice;
(viii) make
any material loans to, material capital contributions or material investments in, or advances of money to, in each case, in excess of
$250,000 individually or $500,000 in the aggregate, any Person, in each case except for (A) advances to employees or officers of SpinCo
for expenses incurred in the ordinary course of the SpinCo Business consistent with past practice or (B) extended payment terms for customers
in the ordinary course of the SpinCo Business consistent with past practice;
(ix) (A)
amend or modify in any material respect, terminate (excluding any expiration in accordance with its terms), or waive any material right,
benefit or remedy under, any SpinCo Material Contract or Company Contract, solely to the extent such Company Contract (x) relates to the
SpinCo Business or the Transactions, or (y) as a result of such amendment or modification, would relate to the SpinCo Business and would
be required to be listed on Section 5.14(a) of the SpinCo Disclosure Schedule, or (B) enter into any Contract (other than in the
ordinary course of business) that if entered into prior to the date hereof would be required to be listed on Section 5.14(a) of the
SpinCo Disclosure Schedule;
(x) except
as contemplated by the Transaction Documents or Contract in effect as of the date hereof, grant or provide any change-in-control, severance,
termination, retention or similar payments or benefits to any employee of or consultant to SpinCo;
(xi) hire
or engage, or make an offer to hire or engage, any officer, employee, service provider or individual independent contractor of SpinCo
or the Company (solely for purposes of the Company, if such Person is hired or engaged with the intent that such Person would provide
services to SpinCo under the Shared Services Agreement prior to the Closing or the Amended and Restated Shared Services Agreement post-Closing)
whose annual base pay exceeds $250,000;
(xii) except
as required by GAAP, make any change to any financial accounting principles, methods or practices of SpinCo or with respect to the SpinCo
Business;
(xiii) waive,
release, settle, compromise or otherwise resolve any Action, litigation or other proceedings, except where such waivers, releases, settlements
or compromises involve only the payment of monetary damages in an amount less than $250,000 in the aggregate;
(xiv) (A)
make any material Tax election inconsistent with prior practice or change or revoke any material Tax election in respect of the SpinCo
Business, or (B) settle or compromise any material Tax liability for which SpinCo or the SpinCo Business would be responsible post-Closing;
(xv) make
or commit to make any capital expenditures, on an annualized basis, in the aggregate, in excess of $500,000, in the aggregate;
(xvi) enter
into any collective bargaining agreement or other similar Contract with a labor union, works’ council, employee representative body
or labor organization;
(xvii) terminate
without replacement or fail to use reasonable best efforts to maintain any license or permit that is material to the conduct of the business
of SpinCo;
(xviii) (A)
limit the right of SpinCo to engage in any line of business or in any geographic area, to develop, market or sell products or services,
or to compete with any Person or (B) grant any exclusive or similar rights to any Person, in each case, except where such limitation or
grant does not, and would not be reasonably likely to, individually or in the aggregate, materially and adversely affect, or materially
disrupt, the ordinary course operation of the SpinCo Business; or
(xix) authorize
or enter into any Contract to do any of the foregoing or otherwise agree or make any commitment to do any of the foregoing.
7.3 Tax
Matters.
(a) From
and after the date of this Agreement and until the Effective Time, each Party (i) shall use its commercially reasonable efforts to ensure
that (A) the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code (the “Tax-Free
Status”) and (B) the Domestication will qualify as a “reorganization” within the meaning of Section 368(a)(1)(F),
and (ii) shall not take any action, cause or permit any action to be taken, fail to take any action, or cause any action to fail to be
taken, which action or failure to act could prevent (A) the Domestication from qualifying as a “reorganization” within the
meaning of Section 368(a)(1)(F) or (B) the Tax-Free Status. Following the Effective Time, none of the Company, Parent or any of their
respective Affiliates shall take any action, cause or permit any action to be taken, fail to take any action or cause any action to fail
to be taken, which action or failure to act could prevent the Tax-Free Status.
(b) At
and after the Effective Time, each of Parent and the Surviving Corporation covenants and agrees that it:
(i) will
maintain all books and records and file all federal, state, and local income Tax Returns and schedules thereto of Parent, the Surviving
Corporation, and Merger Sub in a manner consistent with the Merger’s being qualified as a reorganization and nontaxable exchange
under Section 368(a)(1)(A) of the Code (and comparable provisions of any applicable state or local Tax laws);
(ii)
will, either directly or through a member of Parent’s Qualified Group, continue at least one significant historic business line
of SpinCo, or use at least a significant portion of the historic business assets of SpinCo in a business, in each case within the meaning
of Treasury Regulations Section 1.368-1(d);
(iii) in
connection with the Merger, will not reacquire, and will not permit any Person that is a “related person” (as defined in Treasury
Regulations Section 1.368-1(e)(4)) to Parent to acquire, any of the Domesticated Parent Common Stock issued in connection with the Merger;
and
(iv) will
not sell or otherwise dispose of any of SpinCo assets acquired via the Merger, except for dispositions made in the ordinary course of
business or transfers described in Section 368(a)(2)(C) of the Code or described and permitted in Treasury Regulations Section 1.368-2(k).
(c) If,
in connection with the preparation and filing of the Parent Registration Statement, the SEC requires that tax opinions related to the
tax effects of the Merger be prepared and submitted, the Company and SpinCo, on the one hand, and Parent, on the other hand, shall cooperate
with one another in obtaining, and shall use their respective reasonable best efforts to obtain, a written opinion of the Company’s
Tax counsel (the “Company Merger Tax Opinion”), in the case of the Company and SpinCo, and a written opinion of Parent’s
Tax counsel (the “Parent Merger Tax Opinion”), in the case of Parent, reasonably satisfactory in form and substance
to the Company and Parent, respectively, dated as of the Closing Date, to the effect that, on the basis of the facts, customary representations
and assumptions set forth or referred to in such opinion, the Merger will be treated as a “reorganization” within the meaning
of Section 368(a) of the Code. In delivering the Company Merger Tax Opinion and the Parent Merger Tax Opinion, Tax counsel may rely upon
reasonable representations of an officer of SpinCo and the Parent, respectively, dated as of the Closing Date, in form and substance reasonably
satisfactory to tax counsel and delivered to tax counsel.
(d) If,
in connection with the preparation and filing of the Parent Registration Statement, the SEC requires that tax opinions related to the
tax effects of the Domestication be prepared and submitted, Parent shall use its reasonable best efforts to obtain a written opinion of
Parent’s Tax counsel (the “Parent Domestication Tax Opinion”) reasonably satisfactory in form and substance to
Parent and the Company, dated as of the Closing Date, to the effect that, on the basis of the facts, customary representations and assumptions
set forth or referred to in such opinion, the Domestication will qualify as a “reorganization” under Section 368(a)(1)(F)
of the Code. In delivering the Parent Domestication Tax Opinion, Tax counsel may rely upon reasonable representations of an officer of
Parent dated as of the Closing Date, in form and substance reasonably satisfactory to tax counsel.
7.4 Preparation
of the Registration Statement and Proxy Statement; Parent Shareholders Meeting.
(a) As
promptly as practicable after the execution of this Agreement to the extent such filings are required by Law in connection with the transactions
contemplated by this Agreement: (i) Parent, the Company and SpinCo shall jointly prepare and Parent shall file with the SEC the Parent
Registration Statement; (ii) Parent, the Company and SpinCo shall jointly prepare and Parent shall file with the SEC the Proxy Statement
(which Proxy Statement may form a part of the Parent Registration Statement); and (iii) the Parties shall jointly prepare and cause to
be filed such other filings required under applicable securities Laws in connection with the Transactions.
(b) Each
of Parent, the Company and SpinCo shall use its reasonable best efforts to have the Parent Registration Statement declared effective as
promptly as practicable after such filing (including by responding to comments of the SEC) and after the delivery of any financial statements
pursuant to Section 7.16(b) that are required to be included in the Parent Registration Statement, and to keep such registration
statement effective for as long as is necessary to consummate the Transactions, and, prior to the effective date of the Parent Registration
Statement, each of Parent, the Company and SpinCo shall take all action reasonably required (other than qualifying to do business in any
jurisdiction in which it is not now so qualified or filing a general consent to service of process in any such jurisdiction) to be taken
under any applicable securities Laws in connection with the Parent Share Issuance. As promptly as practicable after the Parent Registration
Statement becomes effective, Parent shall cause the Proxy Statement to be mailed or made available to the Parent’s stockholders
and the final prospectus contained in the Registration Statement to the Company pursuant to applicable Law. No filing of, or amendment
or supplement to, the Parent Registration Statement or the Proxy Statement will be made by Parent without providing the Company and SpinCo
with a reasonable opportunity to review and comment thereon (and such comments shall be reasonably considered by Parent in good faith).
Parent will use its commercially reasonable efforts to cause the Parent Registration Statement to comply in all material respects with
the applicable requirements of U.S. federal securities Laws.
(c) Each
of Parent, the Company and SpinCo shall ensure that none of the information supplied by or on its behalf for inclusion or incorporation
by reference in (A) the Parent Registration Statement will, at the time filed with the SEC, at each time at which it is amended and at
the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein, not misleading, or (B) the Proxy Statement will, at the
date it is first mailed or made available to the Parent’s shareholders and at the time of the Parent Shareholders’ Meeting,
contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they are made, not misleading.
(d) If,
at any time prior to the Effective Time, any information relating to Parent, the Company or SpinCo, or any of their respective Affiliates,
directors or officers, should be discovered by Parent, the Company or SpinCo, which should be set forth in an amendment or supplement
to the Parent Registration Statement or the Proxy Statement, so that any such document would not include any misstatement of a material
fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were
made, not misleading, the Party that discovers such information shall promptly notify the other Party and an appropriate amendment or
supplement describing such information shall be promptly filed with the SEC, and, to the extent required by Law, disseminated to the shareholders
of Parent. Parent shall notify the Company promptly of the time when the Parent Registration Statement has become effective and of the
issuance of any stop order or suspension of the qualification of the shares of Domesticated Parent Common Stock issuable pursuant to the
Merger for offering or sale in any jurisdiction. Parent agrees to provide the Company and its counsel promptly with copies of any written
comments or requests for amendments or supplements, and shall promptly inform the Company of any oral comments or requests for amendments
or supplements, that Parent or its counsel may receive from time to time from the SEC with respect to the Parent Registration Statement
or the Proxy Statement promptly after receipt of such comments, and shall provide the Company with copies of any written or oral responses
or correspondence between it or its Affiliates and the SEC related thereto. The Company and its counsel shall be given a reasonable opportunity
to review in advance any such written responses and to participate in any discussions or oral material communications with the SEC, and
Parent shall reasonably consider in good faith the additions, deletions, comments or changes suggested thereto by the Company and its
counsel.
(e) Parent
Shareholders Meeting.
(i) Parent
shall call, give notice of, convene and hold a general meeting (the “Parent Shareholders Meeting”) in accordance with
Parent’s Governing Documents and applicable Law as promptly as reasonably practicable following the date on which the Parent Registration
Statement is declared effective, and in any case, no later than thirty (30) Business Days thereafter, for the purpose of obtaining the
Parent Shareholder Approval; provided, that subject to the requirements of any applicable Law, Parent may (and, in the case of
clause (C) on up to two (2) occasions upon the reasonable request of the Company (and for no more than five (5) Business Days each) shall)
postpone or adjourn the Parent Shareholders Meeting (A) if a quorum has not been established; (B) after consultation with the Company,
to allow reasonable additional time for the filing and mailing of any supplement or amendment to the Proxy Statement as may be required
under applicable Law and for such supplement or amendment to be disseminated and reviewed by Parent’s shareholders sufficiently
in advance of the Parent Shareholders Meeting; (C) to allow reasonable additional time to solicit additional proxies, if and to the extent
the requisite Parent Shareholder Approval would not otherwise be obtained; (D) after consultation with the Company, if otherwise required
by applicable Law; or (E) with the prior written consent of the Company; provided, that the Parent Shareholders’ Meeting
will not be adjourned to a date that is more than thirty (30) days after the date for which the Parent Shareholders’ Meeting was
originally scheduled (excluding any adjournments required by applicable Law). Parent shall advise the Company upon request on a daily
basis during each of the last five (5) Business Days prior to the date of the Parent Shareholders Meeting as to the aggregate tally of
proxies received by Parent with respect to the Parent Shareholder Approval and at additional times upon the reasonable request of the
Company. Parent agrees that it shall provide the holders of shares of Parent Common Stock the opportunity to elect redemption of such
shares of Parent Common Stock in connection with the Parent Shareholders’ Meeting, as required by Parent’s Governing Documents.
(ii) Subject
to Section 7.4(e)(iii), Parent, through the Parent Board, shall unanimously recommend to its shareholders (A) adoption and approval
of the Domestication and change in the jurisdiction of incorporation of Parent from the Cayman Islands to the State of Delaware, (B) amendment
and restatement of Parent’s existing Governing Documents in connection with the Domestication, including any separate or unbundled
proposals as are required to implement the foregoing and the change of Parent’s name to Citius Oncology, Inc. as set forth in the
Parent Charter, (C) adoption and approval of this Agreement, the Transaction Documents and the Transactions contemplated hereby and thereby,
in each case, in accordance with applicable Law and exchange rules and regulations, (D) approval of the issuance of shares of Domesticated
Parent Common Stock in connection with the Merger, (E) approval of the adoption by Parent of an incentive equity plan with a share reserve
equal to 15% of the issued and outstanding shares of Parent immediately following the Effective Time (in substantially the form attached
hereto as Exhibit D, “Parent Equity Incentive Plan”), (F) election of directors to the Parent Board effective
as of the Closing as contemplated by this Agreement, (G) adoption and approval of any other proposals as the SEC (or staff thereof) may
indicate are necessary in its comments to the Proxy Statement or the Parent Registration Statement or correspondence related thereto,
(H) adoption and approval of any other proposals as reasonably agreed by Parent and the Company to be necessary or appropriate in connection
with the Transactions and (I) adjournment of the Parent Shareholders Meeting, if necessary, to permit further solicitation of proxies
because there are not sufficient votes to constitute a quorum or approve and adopt any of the foregoing (such proposals in (A) through
(I), together, the “Transaction Proposals”), and include such Parent Board Recommendation in the Proxy Statement. Parent
shall use its commercially reasonable efforts to (1) solicit from its shareholders proxies in favor of the approval of the proposals required
under the Parent Shareholder Approval, and (2) take all other action necessary or advisable to secure the Parent Shareholder Approval.
Subject to Section 7.4(e)(iii), neither the Parent Board nor any committee thereof shall withdraw, amend, qualify or modify its
recommendation to the Parent Shareholders that they vote in favor of the Transaction Proposals.
(iii) Notwithstanding
anything in this Section 7.4 to the contrary, if, at any time prior to obtaining the Parent Shareholder Approval, the Parent Board
determines, in good faith, after consultation with its outside legal counsel of the applicable jurisdiction, that an Intervening Event
has occurred and that, as a result thereof, a failure to withdraw or modify a Parent Board Recommendation would be inconsistent with the
Parent Board’s fiduciary duties under applicable Law, then the Parent Board may withdraw or modify such Parent Board Recommendation;
provided that the Parent shall not withdraw or modify such Parent Board Recommendation unless (i) Parent first delivers to the Company
a written notice advising the Company that the Parent Board proposes to take such action and containing the material facts underlying
the Parent Board’s determination that an Intervening Event has occurred and that a failure to withdraw or modify a Parent Board
Recommendation would constitute a breach by the Parent Board of its fiduciary obligations under applicable Law (an “Intervening
Event Notice”), and (ii) at or after 5:00 p.m. Eastern Time, on the fourth (4th) Business Day immediately following the day
on which Parent delivered the Intervening Event Notice (such period from the time the Intervening Event Notice is provided until 5:00
p.m. Eastern Time on the fourth (4th) Business Day immediately following the day on which Parent delivered the Intervening Event Notice
(it being understood that any material development with respect to an Intervening Event shall require a new notice, but with an additional
three (3) Business Day (instead of four (4) Business Day) period from the date of such notice), the “Intervening Event Notice
Period”), the Parent Board reaffirms in good faith (after consultation with its outside legal counsel) that a failure to withdraw
or modify such Parent Board Recommendation would be inconsistent with the Parent Board’s fiduciary duties under applicable Law.
If requested by the Company, Parent shall, and shall use its reasonable best efforts to cause its Representatives to, during the Intervening
Event Notice Period, engage in good faith negotiations with the Company and its Representatives to make such adjustments in the terms
and conditions of this Agreement so as to obviate the need for any withdrawal or modification of such Parent Board Recommendation.
7.5 Reasonable
Best Efforts.
(a) Each
of Parent, the Company and their respective Subsidiaries shall use its reasonable best efforts to promptly take, or cause to be taken,
all actions, and to promptly do, or cause to be done, and to assist and cooperate with the other in doing, all things reasonably necessary,
proper or advisable under applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this
Agreement and the other Transaction Documents, as promptly as practicable and in any event prior to the Outside Date, including (i) the
obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting
periods, from Governmental Authorities and the making of all necessary registrations and filings in connection therewith, and (ii) using
its reasonable best efforts to obtain all necessary consents, approvals or waivers from third parties; provided, that in no event
shall the Company, Parent or their respective Subsidiaries be required to pay any fee, penalty or other consideration to any third party
for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any Contract.
(b) The
Company and Parent shall (i) as reasonably practicable and advisable file (or cause to be filed) any and all required pre-merger notification
and report forms under the HSR Act with respect to the Merger, and (ii) make, as promptly as practicable and advisable, any appropriate
filings with other Governmental Authorities, if necessary or advisable, pursuant to any other Antitrust Law. The Company and Parent shall
(and, to the extent required, shall cause its Affiliates to) request early termination of any applicable waiting periods under the Antitrust
Laws (if available) and shall respectively use their reasonable best efforts to cause the expiration or termination of such waiting periods,
and shall supply to the Antitrust Division of the United States Department of Justice or the United States Federal Trade Commission as
promptly as reasonably practicable and advisable any additional information or documents that may be requested pursuant to any Law or
by any of them. No party hereto shall take any action without the other party’s consent that could reasonably be expected to adversely
affect or materially delay (including by entering into a timing agreement), and each party hereto shall diligently pursue, the approval
of any Governmental Authority of any required filings or applications under Antitrust Laws.
(c) In
furtherance of the covenants of the parties contained in this Section 7.5 (i) if any administrative or judicial action or proceeding,
including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Merger as violative of any
Antitrust Law, each of the parties hereto shall use reasonable best efforts to contest and resist any such action or proceeding and to
have vacated, lifted, reversed or overturned any decree, judgment, injunction, or other order, whether temporary, preliminary or permanent,
that results from such action or proceeding and that prohibits, prevents or restricts consummation of the Merger on or before the Outside
Date and (ii) Parent and the Company each shall use reasonable best efforts to take such further action as may be necessary to avoid or
eliminate promptly each impediment under any Antitrust Law so as to enable the Closing to occur as promptly as practicable (and in any
event no later than the Outside Date); provided, that neither Parent nor the Company shall be required to take any action under
this Section 7.5 that would materially impact Parent’s or the Company’s expected benefits resulting from the Transactions.
Notwithstanding anything in this Agreement to the contrary, the Company and its Subsidiaries shall not be obligated to take or agree or
commit to take any action (A) that is not conditioned on the Closing, or (B) that relates to any retained business or assets of the Company.
(d) Parent
and the Company shall cooperate and consult with each other in connection with the making of all filings, notifications, communications,
submissions, and any other actions pursuant to this Section 7.5, and, subject to applicable legal limitations and the instructions
of any Governmental Authority, Parent and the Company shall keep each other apprised on a current basis of the status of matters relating
to the completion of the Transactions, including promptly furnishing the other with copies of notices or other communications received
by Parent and the Company, as the case may be, or any of their respective Subsidiaries or Affiliates, from any third party or any Governmental
Authority with respect to such Transactions. Subject to applicable Law relating to the exchange of information, Parent and the Company
shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other
party in connection with, any proposed notifications or filings and any substantive written communications or submissions to any Governmental
Authority; provided, that materials may be redacted (i) to remove references concerning the valuation of SpinCo or information
concerning the Transaction Process, or proposals from third parties with respect thereto, (ii) as necessary to comply with contractual
agreements, and (iii) as necessary to address reasonable privilege or confidentiality concerns. Parent and the Company agree not to participate
in any pre-scheduled meeting or discussion, either in person, by video conference, or by telephone, with any Governmental Authority in
connection with the Transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental
Authority, gives the other party a reasonable opportunity to attend and participate.
7.6 Access
to Information.
(a) From
the date of this Agreement until the Effective Time or the earlier termination of this Agreement, the Company and Parent shall (and shall
cause their respective Subsidiaries to): (i) provide to the other Party (and the other Party’s Representatives) reasonable access
during normal business hours and upon reasonable prior notice to the officers, employees, agents, properties, offices and other facilities
of such party and its subsidiaries and to the books and records thereof, except that such access shall not include any unreasonably invasive
or intrusive investigations or other testing, sampling or analysis of any properties, facilities or equipment of the Company without the
prior written consent of the Company; and (ii) furnish promptly to the other party such information concerning the business, properties,
contracts, assets, liabilities, personnel and other aspects of such party and its subsidiaries as the other party or its Representatives
may reasonably request. Notwithstanding the immediately preceding sentence, neither the Company nor Parent shall be required to provide
access to or disclose information to the extent such party has been advised by legal counsel that the access or disclosure would (x) violate
its obligations of confidentiality or similar legal restrictions with respect to such information, (y) jeopardize the protection of attorney-client
privilege or (z) contravene applicable Law (it being agreed that the parties shall use their commercially reasonable efforts to cause
such information to be provided in a manner that would not result in such inconsistency, conflict, jeopardy or contravention).
(b) The
Parties hereby agree that the provisions of the Confidentiality Agreement shall apply to all information and material furnished by any
Party or its Representatives thereunder and hereunder. The Confidentiality Agreement shall survive any termination of this Agreement.
7.7 Permitted
Activities and Exclusivity.
(a) At
any time during the Specified Period, the Company may:
(i) solicit,
initiate, knowingly encourage or knowingly facilitate (including by way of furnishing information that has not been previously publicly
disseminated) any proposal from or on behalf of a third party relating to, directly or indirectly, any acquisition (whether by merger,
purchase of Interests, purchase of assets or otherwise), exclusive license, joint venture, partnership, recapitalization, liquidation,
dissolution or other transaction involving any portion of the business or assets of the Company and any of its Subsidiaries (including
SpinCo and LYMPHIRTM (denileukin diftitox)) (any of the foregoing, an “Acquisition Proposal”), or any inquiry,
proposal or offer which would reasonably be expected to lead to an Acquisition Proposal;
(ii) engage
in any discussions or negotiations regarding, or furnish to any Person any nonpublic information relating to, the Company or any of its
Subsidiaries in connection with any Acquisition Proposal or any inquiry, proposal, effort or attempt related to or that could reasonably
be expected to lead to an Acquisition Proposal;
(iii) adopt,
approve or recommend, or publicly propose to adopt, approve or recommend, any Acquisition Proposal; or
(iv) approve
or authorize, or cause or permit the Company or any of its Subsidiaries to enter into, any merger agreement, acquisition agreement, reorganization
agreement, letter of intent, memorandum of understanding, agreement in principle, option agreement, joint venture agreement, partnership
agreement or similar agreement or document relating to, or providing for, any Acquisition Proposal.
(b) Notwithstanding
anything to the contrary set forth in this Section 7.7, at any time prior to the termination of the Specified Period, the Company
may elect to terminate this Agreement pursuant to and subject to the terms of Section 9.1(h) and Section 9.3 in order to
accept an Acquisition Proposal and enter into a definitive agreement with respect to an Acquisition Proposal. Prior to accepting an Acquisition
Proposal and terminating this Agreement pursuant to and subject to the terms of Section 9.1(h) and Section 9.3, the Company
must have delivered written notice to the Parent of its intention to enter into such definitive agreement at least five (5) Business Days
prior to taking such action by the Company, which notice must include the terms and conditions of such Acquisition Proposal. During the
five (5)-Business Day period and prior to entering into such definitive agreement, Parent may offer to amend the terms and conditions
of this Agreement to match the Acquisition Proposal, and the Company shall negotiate in good faith with Parent regarding such matching
offer.
(c) As
of the termination of the Specified Period, the Company shall cease and cause SpinCo and their respective Representatives to cease any
discussions or negotiations with any Person (other than Parent and its affiliates) that may be ongoing with respect to (i) an Acquisition
Proposal that is related to SpinCo or LYMPHIRTM (denileukin diftitox) only or (ii) an Acquisition Proposal other than a Permitted
Acquisition Proposal (each of (i) and (ii) a “SpinCo Proposal”), or any inquiry, proposal or offer that would reasonably
be expected to lead to a SpinCo Proposal.
(d) From
the date of the termination of the Specified Period until the earlier to occur of (i) the termination of this Agreement pursuant to Article
IX and (ii) the Effective Time, the Company will not, and will use commercially reasonable efforts to cause its Representatives not
to:
(i) solicit,
initiate, encourage or facilitate (including by way of furnishing information that has not been previously publicly disseminated) any
proposal from or on behalf of a third party relating to, directly or indirectly, any SpinCo Proposal, or any inquiry, proposal or offer
that would reasonably be expected to lead to a SpinCo Proposal;
(ii) engage
in any discussions or negotiations regarding, or exchange with any Person any nonpublic information in connection with, any SpinCo Proposals
or any inquiry, proposal, effort or attempt related to or that would reasonably be expected to lead to, a SpinCo Proposal;
(iii) adopt,
approve or recommend, or publicly propose to adopt, approve or recommend, any SpinCo Proposal; or
(iv) approve
or authorize or cause or permit the Company or SpinCo to enter into, any merger agreement, acquisition agreement, reorganization agreement,
letter of intent, memorandum of understanding, agreement in principle, option agreement, joint venture agreement, partnership agreement
or similar agreement or document relating to, or providing for, any SpinCo Proposal.
The restrictions set forth in this Section
7.7(d) shall not limit the Company’s ability to pursue or engage in any transaction relating to a Permitted Acquisition Proposal.
(e) Parent
shall cease and shall cause its Representatives to cease, any discussions or negotiations with any Person (other than the Company or its
Affiliates) that may be ongoing with respect to a Parent Business Combination Proposal, or any inquiry, proposal or offer that would reasonably
be expected to lead to a Parent Business Combination Proposal. From the date hereof until the earlier to occur of (i) the termination
of this Agreement pursuant to Article IX and (ii) the Effective Time, Parent shall not and shall use commercially reasonable efforts
to cause its Representatives not to: (w) solicit, initiate, encourage or facilitate (including by way of furnishing information that has
not been previously publicly disseminated) any proposal from or on behalf of a third party relating to, directly or indirectly, any Business
Combination, or any inquiry, proposal or offer which would reasonably be expected to lead to a Parent Business Combination Proposal, (x)
engage in any discussions or negotiations regarding, or exchange with any Person any nonpublic information in connection with, any Parent
Business Combination Proposal or any inquiry, proposal, effort or attempt related to or that would reasonably be expected to lead to,
a Parent Business Combination Proposal, (y) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Parent
Business Combination Proposal or (z) approve or authorize, or cause or permit Parent to enter into, any merger agreement, acquisition
agreement, reorganization agreement, letter of intent, memorandum of understanding, agreement in principle, option agreement, joint venture
agreement, partnership agreement or similar agreement or document relating to, or providing for, any Parent Business Combination Proposal.
7.8 Public
Announcements. Except (a) as otherwise expressly contemplated by this Agreement, (b) in connection with any press release, public
statement or filing to be issued or made by Parent, and (c) for the separate or joint press releases to be issued by the Parties in the
forms agreed by the Parties (or any public statement or disclosure that contains or reflects only such information previously disclosed
in press releases or other public disclosures made in accordance with this Section 7.8), neither Parent nor the Company will, and
each of Parent and the Company will cause its Subsidiaries not to, issue any press release or otherwise make any public statements or
disclosure with respect to the Transactions without the prior written consent of the other Party. Notwithstanding the foregoing, to the
extent such disclosure is required by applicable Law or the rules of any stock exchange, the Party seeking to make such disclosure will
promptly notify the other Party thereof and the Party making such statement will use efforts reasonable under the circumstances to consult
in good faith with the other Party thereto prior to making such disclosure in order to allow a mutually agreeable release or announcement
to be issued. Notwithstanding the foregoing, any Party may make statements that are consistent with previous public releases made by such
Party in compliance with this Section 7.8.
7.9 Section
16 Matters. Prior to the Effective Time, each of Parent, the Company and SpinCo shall take all such steps as may be required (to the
extent permitted by applicable Law) to cause any dispositions of SpinCo Common Stock (including derivative securities with respect to
SpinCo Common Stock) or acquisitions of Parent Common Stock or Domesticated Parent Common Stock resulting from the Transactions, directly
or indirectly, by each individual, if any, who is subject to Section 16(a) of the Exchange Act with respect to Parent as an officer or
director thereof to be exempt under Rule 16b-3 promulgated under the Exchange Act, such steps to be taken in accordance with (and to the
extent permitted by) applicable SEC rules and regulations and interpretations of the SEC staff.
7.10 Control
of Other Party’s Business. Nothing contained in this Agreement shall give the Company or SpinCo, directly or indirectly, the
right to control or direct Parent’s operations prior to the Effective Time. Nothing contained in this Agreement shall give Parent,
directly or indirectly, the right to control or direct the operations of the Company, including the SpinCo Business, prior to the Effective
Time. Prior to the Effective Time, each of the Company, SpinCo and Parent shall exercise, consistent with the terms and conditions of
this Agreement, complete control and supervision over its respective operations.
7.11 Domestication.
Subject to receipt of the Parent Shareholder Approval, no later than the date that is one day prior to the Effective Time, Parent shall
cause the Domestication to become effective, including by (a) filing with the Secretary of State of the State of Delaware a Certificate
of Domestication with respect to the Domestication, in form and substance reasonably acceptable to Parent and the Company, together with
the Parent Charter substantially in the form attached as Exhibit A hereto (with such changes as may be agreed in writing by Parent
and the Company, the “Parent Charter”), in each case, in accordance with the provisions thereof and applicable Law,
(b) completing, making and procuring all those filings required to be made with the Cayman Registrar in connection with the Domestication
and (c) obtaining a certificate of de-registration from the Cayman Registrar. In accordance with applicable Law, the Domestication shall
provide that at the effective time of the Domestication, by virtue of the Domestication, and without any action on the part of any shareholder
of Parent, (i) each then issued and outstanding share of Parent Common Stock shall convert automatically, on a one-for-one basis, into
a share of Domesticated Parent Common Stock; (ii) each then issued and outstanding Parent Right shall convert automatically into a Domesticated
Parent Right, pursuant to the Rights Agreement; (iii) each then issued and outstanding Parent Unit shall convert automatically into one
Domesticated Parent Unit; and (iv) Parent’s bylaws from and after the effective time of the Domestication shall be substantially
in the form attached as Exhibit B hereto (with such changes as may be agreed in writing by Parent and the Company, the “Parent
Bylaws”).
7.12 NASDAQ Listing.
(a) (a) From the date hereof through the Effective Time, Parent shall use its commercially reasonable efforts to maintain the listing
of the Parent Common Stock, Parent Units, and Parent Rights on NASDAQ and maintain all applicable initial and continuing listing requirements
of NASDAQ. Parent shall prepare and submit to NASDAQ a listing application, if required under NASDAQ rules, covering the shares of Domesticated
Parent Common Stock issuable in the Merger, and shall use its commercially reasonable efforts to cause the shares of Domesticated Parent
Common Stock issuable pursuant to the Transactions to be approved for listing on the NASDAQ, subject to official notice of issuance, as
promptly as practicable after the date of this Agreement, and in any event prior to the Effective Time.
(b) The
Company and Parent shall cooperate and consult with each other in connection with ensuring that the total number of round lot holders
of Domesticated Parent Common Stock is sufficient for the Domesticated Parent Common Stock to satisfy the applicable NASDAQ initial listing
requirement related to round lot holders as of the Closing. Such actions potentially could include, for example, the Company authorizing
the distribution of a number of shares of Domesticated Parent Common Stock that the Company will receive as a result of the Merger to
the Company’s shareholders.
7.13 Takeover
Statutes. If any “fair price,” “moratorium,” “control share acquisition,” “business combination”
or other form of antitakeover Law shall become applicable to the Transactions, Parent, Merger Sub and their respective boards of directors
shall use all reasonable efforts to grant such approvals and take such actions as are reasonably necessary so that the Transactions may
be consummated as promptly as practicable on the terms contemplated hereby and otherwise act to eliminate or minimize the effects of such
statute or regulation on the Transactions.
7.14 Sole
Shareholder Approvals. Promptly after the execution of this Agreement, (a) the Company will approve and adopt, as SpinCo’s sole
shareholder, this Agreement and the Transaction Documents and the Transactions, including the Merger (the “SpinCo Shareholder
Approval”) and deliver the SpinCo Shareholder Approval to Parent, and (b) Parent, as the sole shareholder of Merger Sub, acting
by written consent, will adopt this Agreement and approve the consummation of the Transactions, upon the terms and subject to the conditions
stated herein and in accordance with the applicable provisions of the DGCL (the “Merger Sub Shareholder Approval”)
and deliver a copy of the Merger Sub Shareholder Approval to the Company.
7.15 Financial
Information.
(a) The
Company shall, from the date hereof until the Closing Date, prepare and deliver to Parent, (i) as promptly as reasonably practicable and
no later than seventy-five (75) calendar days after the end of any fiscal quarter, the unaudited balance sheet of SpinCo as of the end
of such fiscal quarter and the related unaudited statements of income and cash flows of SpinCo for such fiscal quarter, together with
comparable financial statements for the corresponding periods of the prior fiscal years, in each case, to the extent required to be included
or incorporated by reference in the Parent Registration Statement (including the Proxy Statement), (collectively, the “Subsequent
Unaudited SpinCo Financial Statements”) and (ii) if necessary, as promptly as reasonably practicable and no later than one-hundred
(100) calendar days after the end of any fiscal year, the audited balance sheet of SpinCo as of the end of such fiscal year of SpinCo
and the related audited statements of income and cash flows of SpinCo for such fiscal year, together with comparable financial statements
for the prior fiscal years, in each case, to the extent required to be included or incorporated by reference in the Parent Registration
Statement (including the Proxy Statement) (collectively, the “Subsequent Audited Annual SpinCo Financial Statements”
and, together with the Subsequent Unaudited SpinCo Financial Statements, the “Subsequent Period SpinCo Financial Statements”).
The Subsequent Period SpinCo Financial Statements shall be prepared from the books and records of the Company and SpinCo and in accordance
with GAAP applied on a consistent basis throughout the periods involved (except as may otherwise be required under GAAP) and the applicable
rules and regulations of the SEC, including the requirements of Regulation S-X. When delivered, the Subsequent Period SpinCo Financial
Statements shall present fairly in all material respects the financial position and results of operations of SpinCo as of the dates and
for the periods shown therein.
(b) During
the Interim Period and from and after the Closing, the Company shall use its reasonable best efforts, in connection with the filing of
any applicable SEC filings, to cooperate with Parent to prepare pro forma financial statements that comply with the rules and regulations
of the SEC to the extent required for SEC filings, including the requirements of Regulation S-X.
7.16 Extension;
Payment of Extension Fees.
(a) Extensions
of the Trust Agreement:
(i) The
Parent and the Sponsor may extend, in accordance with the terms of the Governing Documents of Parent and the Trust Agreement, the date
by which Parent must consummate a Business Combination, for an additional three (3) months after October 18, 2023 (the “Second
Extension”).
(ii) In
the event that Parent and the Company determine that it is reasonably likely that the Closing will not be consummated prior to January
18, 2024, then Parent and the Sponsor may extend, in accordance with the terms of the Governing Documents of Parent and the Trust Agreement,
the date by which Parent must consummate a Business Combination, for an additional three (3) months (the “Third Extension”).
(iii) In
the event that it is reasonably determined by Parent and the Company on or before February 14, 2024 (or such other date that is agreed
to in writing by Parent and the Company) that it is reasonably likely that the Merger will not be consummated by April 17, 2024, then
upon the written request of Parent or the Company to the other party, Parent and the Company shall (i) reasonably cooperate with respect
to the preparation, filing and mailing of a proxy statement and any other materials necessary to solicit proxies from Parent Shareholders
to vote, at an extraordinary general meeting of Parent to be called and held for purpose of such vote, in favor of (A) amending Parent’s
Governing Documents (such amendment, the “Extension Amendment”) to extend the final date in respect of which Parent
must consummate a Business Combination thereunder to October 17, 2024 or such other date that is mutually agreed to by the Company and
Parent in writing (such extension, the “Fourth Extension,” and such date, the “Extension Date”)
and (B) such other matters as the Company and Parent shall mutually determine to be necessary or appropriate in order to effect the Extension
Amendment; and (ii) execute and deliver such other documents and take such other actions, as may reasonably be necessary to effectuate
the Extension Amendment. Notwithstanding anything to the contrary, the right to make a written request pursuant to the preceding sentence
shall not be available to a party if the potential failure of the Merger to be consummated by April 17, 2024 was due to such party’s
breach of or failure to perform in any material respect any of its covenants or agreements set forth in this Agreement.
(b) Parent,
Sponsor, and the Company will pay the extension fees the Sponsor is required to deposit in the Trust Account in connection with the extension
of the date by which Parent must complete a Business Combination (each, an “Extension Fee”) as follows:
(i) The
Company will pay a portion of each Extension Fee as follows:
A. The
Company will pay $125,000 of the Extension Fee related to the Second Extension directly to the Sponsor or its designee by wire transfer
of immediately available funds within two (2) Business Days after the date hereof;
B. The
Company will pay $200,000 of the Extension Fee related to the Third Extension into the Trust Account; and
C. The
Company will pay $200,000 of the Extension Fee related to the Fourth Extension into the Trust Account.
(ii) Sponsor
will deposit into the Trust Account the remainder of the respective Third and Fourth Extension Fees in excess of the Company’s portion
of such respective Extension Fees. The Company will be obligated to pay a portion of the Third and Fourth Extension Fees only if this
Agreement has not been terminated at the time of the Third Extension, or Fourth Extension, as applicable. If the applicable Extension
Fee is less than the respective amount specified in Section 7.16(b)(i), the Company will be obligated to pay only such lesser amount
of the actual Extension Fee. The Company’s obligation to pay a portion of the Extension Fees will terminate upon the termination
of this Agreement in accordance with Article IX, except that if the Company’s portion of an applicable Extension Fee is due
but not yet paid at the time of such termination, the Company’s obligation to pay such amount will not terminate upon the termination
of this Agreement.
(iii) Upon
the Closing, the Company will be repaid by Parent an amount equal to the portion of the Extension Fees that the Company paid either to
the Sponsor (or its designee) or into the Trust Account, but only if at the time of the Closing the balance of the Trust Account equals
or exceeds $2,000,000.
(c) As
promptly as reasonably practicable following the time at which the proxy statement contemplated by Section 7.16(a)(iii) is cleared
by the SEC, Parent shall establish the record date for, duly call, give notice of, and duly convene and hold, the applicable extraordinary
general meeting.
(d) Without
limiting the foregoing and for the avoidance of doubt, Parent shall be permitted to take any other means allowed under Parent’s
Governing Documents to extend the time in respect of which Parent must consummate a Business Combination.
7.17 Equity
Incentive Plan. Prior to the Effective Time, Parent shall adopt and approve the Parent Equity Incentive Plan.
7.18 Transfer
of Certain Intellectual Property to SpinCo.
(a) Prior
to the Closing, the Company and SpinCo shall enter into a transfer and assignment agreement, in a form reasonably satisfactory to Parent
and the Company, pursuant to which the Company will transfer the LYMPHIRTM (denileukin diftitox) trademark or trademark application,
as applicable, and SpinCo shall accept such transfer and assignment with regard to the LYMPHIRTM (denileukin diftitox) trademark,
which assignment and transfer will be automatically effective for all purposes as of the effective date of the Company FDA Letter and
the SpinCo FDA Letter; provided, however, that upon any termination of this Agreement in accordance with the terms of Article
IX such transfer and assignment agreement will terminate automatically.
(b) Promptly
following the Company’s receipt of the Notice of Approval, but in no event later than five (5) Business Days after the Company’s
receipt of the Notice of Approval, (i) the Company shall deliver to the FDA an executed Company FDA Letter, and (ii) SpinCo (or if the
Notice of Approval occurs after the Effective Time, the Surviving Corporation) shall deliver to the FDA an executed SpinCo FDA Letter.
(c) To
the extent permitted under any SpinCo Material Contract and applicable Law, SpinCo hereby grants to the Company a fully-paid, nonexclusive,
worldwide, royalty-free license under, and to use, the SpinCo Intellectual Property for the purpose of performing Company’s obligations
under, and seeking and obtaining FDA approval of, the BLA (or any amended form thereof), which license shall include a right of reference
to any regulatory filings, applications, approvals, or clearances held, owned, or controlled by SpinCo. To the extent permitted under
any Contract to which the Company is a party and applicable Law, the Company hereby grants to SpinCo a fully-paid, nonexclusive, worldwide,
royalty-free, sublicensable license under the Intellectual Property owned, controlled, or licensed by the Company to use, research, develop,
make, have made, commercialize, and import any products that are subject to the BLA, including LYMPHIRTM (denileukin diftitox),
which rights shall include a right of reference to the BLA and IND. The foregoing licenses will terminate automatically upon the earlier
of the termination of this Agreement in accordance with the terms of Article IX or the effectiveness of the transfer of the BLA
to SpinCo pursuant to Section 7.18(b).
7.19 Insurance.
The Company shall use commercially reasonable efforts, and the Parent and Merger Sub shall provide assistance as the Company may reasonably
request, to obtain for SpinCo insurance policies that are reasonable and customary for a company such as SpinCo to be effective as of
the Effective Time.
7.20 BLA
Resubmission. The Company will use its reasonable best efforts to resubmit to the FDA prior to February 1, 2024 the BLA for LYMPHIRTM (denileukin
diftitox) in accordance with Company’s plan to address the FDA’s complete response letter received by the Company on July
28, 2023, and with any additional guidance provide by the FDA to the Company. The immediately preceding sentence notwithstanding, the
form, substance, and timing of any resubmission to the FDA will be in the Company’s absolute discretion.
Article
VIII
CONDITIONS TO THE MERGER
8.1 Conditions
to the Obligations of SpinCo, the Company, Parent and Merger Sub to Effect the Merger. The respective obligations of each Party to
consummate the Merger shall be subject to the fulfillment (or, to the extent permitted by applicable Law, waiver by the Company and Parent)
at or prior to the Closing of the following conditions:
(a) (i)
any waiting periods (including any extensions thereof) under the HSR Act with respect to the Transactions must have expired or been terminated,
and any other applicable waiting periods (or any extension thereof), filings or approvals under any applicable Laws must have expired,
been terminated, been made or been obtained, and (ii) there shall not be in effect any voluntary agreement between the Parent or the Company
and any Governmental Authority pursuant to which Parent or the Company has agreed not to consummate the Transactions for any period of
time;
(b) the
Parent Registration Statement shall have become effective in accordance with the Securities Act and shall not be the subject of any stop
order by the SEC or actual or threatened proceedings by a Governmental Authority seeking such a stop order;
(c) the
Parent Shareholder Approval shall have been obtained;
(d) the
SpinCo Shareholder Approval shall have been obtained;
(e) no
Governmental Authority of competent jurisdiction shall have enacted, issued or granted any Law (whether temporary, preliminary or permanent),
in each case that is in effect and which has the effect of restraining, enjoining or prohibiting the consummation of the Transactions;
and
(f) Parent
shall have at least $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act).
8.2 Additional
Conditions to the Obligations of the Company and SpinCo. The obligation of the Company and SpinCo to consummate the Merger shall be
subject to the fulfillment (or, to the extent permitted by applicable Law, waiver by the Company) at or prior to the Closing of the following
additional conditions:
(a) Parent
and Merger Sub shall each have performed and complied in all material respects with the obligations, covenants and agreements required
by this Agreement to be performed or complied with by it at or prior to the Effective Time;
(b) all
representations and warranties made by Parent and Merger Sub set forth in Article VI (other than the representations and warranties
referenced in the second and third sentences of this Section 8.2(b)), without giving effect to materiality, Parent Material Adverse
Effect or similar qualifications, shall be true and correct in all respects at and as of the date hereof and as of the Closing Date as
though such representations and warranties were made at and as of the Closing Date (except in the case of any representation or warranty
that by its terms addresses matters only as of another specified date, which shall be so true and correct only as of such specified date),
except to the extent the failure of such representations and warranties to be true and correct (without giving effect to materiality,
Parent Material Adverse Effect or similar qualifications) would not have, individually or in the aggregate, a Parent Material Adverse
Effect. The representations and warranties made by Parent set forth in Section 6.1, Section 6.2, Section 6.3, Section
6.10(a), and Section 6.11 shall be true and correct in all material respects at and as of the date hereof and as of the Closing
Date as though such representations and warranties were made at and as of the Closing Date (except in the case of any representation or
warranty that by its terms addresses matters only as of another specified date, which shall be so true and correct only as of such specified
date);
(c) No
Parent Material Adverse Effect shall have occurred between the date of this Agreement and the Closing Date;
(d) Parent
shall have delivered to the Company the certificate referenced in Section 2.3(b)(ii) dated as of the Closing Date signed by an
authorized officer of Parent certifying that each of the conditions set forth in Section 8.1(f) and Section 8.2(a), (b),
(c), and (e) have been satisfied;
(e) Parent
and Merger Sub shall have executed and delivered the applicable Transaction Documents, and to the extent applicable, performed and complied
with the obligations, covenants and agreements thereunder required to be performed by them prior to the Effective Time in all material
respects, and each such agreement shall be in full force and effect;
(f) the
Domestication shall have been completed as provided in Section 7.11 and a time-stamped copy of the certificate issued by the Secretary
of State of the State of Delaware in relation thereto shall have been delivered to the Company, and the shares of Domesticated Parent
Common Stock issuable pursuant to the Transactions shall have been approved for listing on NASDAQ, subject to official notice of issuance;
(g) As
of the Closing Date, Parent shall not have received any written notice from NASDAQ that it has failed, or would reasonably be expected
to fail to meet the Nasdaq initial or continued listing requirements as of the Closing Date for any reason where such notice has not been
subsequently withdrawn by NASDAQ or the underlying failure appropriately remedied or satisfied;
(h) other
than those Persons identified as continuing directors on Section 8.2(h) of the Company Disclosure Schedule, all members of the
Parent Board and all executive officers of Parent shall have executed and delivered written resignations effective as of the Effective
Time, and the directors designated by the Company shall have been appointed to the board of directors of the Parent, effective as of the
Closing; and
(i) Sponsor
shall have paid or caused to be paid in full, by wire transfer of immediately available funds, all Parent Estimated Transaction Expenses
in excess of $500,000 (if any).
8.3 Additional
Conditions to the Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger shall be
subject to the fulfillment (or, to the extent permitted by applicable Law, waiver by Parent) at or prior to the Closing of the following
additional conditions:
(a) Each
of SpinCo and the Company shall each have performed and complied in all material respects with the obligations, covenants and agreements
required by this Agreement to be performed or complied with by it at or prior to the Effective Time;
(b) all
representations and warranties made by the Company set forth in Article IV and Article V (other than the representations
and warranties referenced in the second and third sentences of this Section 8.3(b)), without giving effect to materiality, “Company
Material Adverse Effect”, “SpinCo Material Adverse Effect” or similar qualifications, shall be true and correct in all
respects at and as of the date hereof and as of the Closing Date as though such representations and warranties were made at and as of
the Closing Date (except in the case of any representation or warranty that by its terms addresses matters only as of another specified
date, which shall be so true and correct only as of such specified date), except to the extent the failure of such representations and
warranties to be true and correct (without giving effect to materiality, “Company Material Adverse Effect”, “SpinCo
Material Adverse Effect” or similar qualifications) would not have, individually or in the aggregate, a SpinCo Material Adverse
Effect, solely with respect to the representations and warranties set forth in Article V, or Company Material Adverse Effect, solely
with respect to the representations and warranties set forth in Article IV. The representations and warranties set forth in the
first sentence of Section 4.1, Section 4.2, Section 4.6, the first sentence of Section 5.1, Section 5.2,
Section 5.3, Section 5.13(a), and Section 5.21 shall be true and correct in all material respects at and as of the
date hereof and as of the Closing Date as though such representations and warranties were made at and as of the Closing Date (except in
the case of any representation or warranty that by its terms addresses matters only as of another specified date, which shall be so true
and correct only as of such specified date);
(c) No
SpinCo Material Adverse Effect shall have occurred between the date of this Agreement and the Closing Date;
(d) The
Company shall have delivered to Parent the certificate referenced in Section 2.3(a)(i) dated as of the Closing Date signed by an
authorized officer of the Company certifying that each of the conditions set forth in Section 8.3(a), (b), (c) and
(e) have been satisfied; and
(e) SpinCo
and the Company (or such other applicable Subsidiary of the Company) shall have executed and delivered each of the applicable Transaction
Documents, and to the extent applicable, performed and complied with the obligations, covenants and agreements to be performed thereunder
by them prior to the Effective Time in all material respects, and each such agreement shall be in full force and effect.
Article
IX
TERMINATION
9.1 Termination.
This Agreement may be terminated and the Transactions may be abandoned at any time prior to the Effective Time, whether before or after
the Parent Shareholder Approval:
(a) by
mutual written agreement of the Company and Parent;
(b) by
written notice from the Company or Parent if, prior to the Closing, the FDA issues a complete response letter to the Company in response
to the Company’s resubmsission of its BLA;
(c) by
written notice from the Company or Parent, if the Closing shall not have occurred on or prior to September 30, 2024 (the “Outside
Date”); provided, that the right to terminate this Agreement pursuant to this Section 9.1(c) shall not be available
to any Party whose action or failure to comply with its obligations under this Agreement or any of the other Transaction Documents has
been the primary cause of, or has primarily resulted in, the failure of the Closing to occur on or prior to such date; and provided,
further, that if the FDA sets a PDUFA Date that is after the Outside Date, the Parties may hold meetings to discuss and consider extending
the Outside Date to a date after the PDUFA Date;
(d) by
written notice from the Company or Parent, if any Law or Order is promulgated, entered, enforced, enacted or issued and in effect or is
deemed to be applicable to the Merger or the other Transactions, by any Governmental Authority of competent jurisdiction that permanently
prohibits, restrains or makes illegal the consummation of the Merger or the other Transactions, and such Law or Order becomes final and
non-appealable; provided, that the right to terminate this Agreement pursuant to this Section 9.1 shall not be available
to any Party whose action or failure to perform any of its obligations under this Agreement or any of the Transaction Documents is the
primary cause of, or primarily resulted in, the enactment or issuance of any such Law or Order;
(e) by
Parent upon written notice to the Company, in the event of a breach of any representation, warranty, covenant or agreement on the part
of the Company or SpinCo or any such representation and warranty becomes untrue or inaccurate after the date of this Agreement, such that
the conditions specified in Section 8.3(a) or Section 8.3(b) would not be satisfied at the Closing, and which, (i) with
respect to any such breach that is capable of being cured, is not cured by the Company or SpinCo by the earlier of: (x) fifteen (15) days
after receipt of written notice thereof; or (y) the Outside Date, or (ii) is incapable of being cured prior to the Outside Date; provided,
that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(e) if Parent or Merger Sub is then
in breach of any of its representations, warranties, covenants or agreements set forth in this Agreement to the extent such breach or
breaches would give rise to the failure of a condition set forth in Section 8.2(a) or Section 8.2(b);
(f) by
the Company upon written notice to Parent, in the event of a breach of any representation, warranty, covenant or agreement contained in
this Agreement on the part of Parent or Merger Sub or any such representation and warranty becomes untrue or inaccurate after the date
of this Agreement, such that the conditions specified in Section 8.2(a) or Section 8.2(b) would not be satisfied at the
Closing, and which, (i) with respect to any such breach that is capable of being cured, is not cured by Parent by the earlier of: (x)
fifteen (15) days after receipt of written notice thereof; or (y) the Outside Date, or (ii) is incapable of being cured prior to the Outside
Date; provided, that the Company shall not have the right to terminate this Agreement pursuant to this Section 9.1(f) if
the Company or SpinCo is then in breach of any of its representations, warranties, covenants or agreements set forth in this Agreement
to the extent such breach or breaches would give rise to the failure of a condition set forth in Section 8.3(a) or Section 8.3(b);
(g) by
the Company or Parent upon written notice, if (i) the Parent Shareholder Approval shall not have been obtained upon a vote taken thereon
at the Parent Shareholders Meeting, duly convened therefor, or at any adjournment or postponement thereof or (ii) if a vote is taken on
the Extension Amendment in accordance with Section 7.16(a)(iii) and the shareholders of Parent shall not have approved the Extension
Amendment; provided, that the right to terminate this Agreement pursuant to this Section 9.1(g) shall not be available to
Parent if Parent’s actions or failure to perform any of its obligations under this Agreement is the primary cause of, or primarily
resulted in, the failure to obtain such approval; and
(h) by
the Company, prior to the termination of the Specified Period, in order to accept an Acquisition Proposal and enter into, promptly following
such termination, a binding and definitive written Contract with respect to such Acquisition Proposal; provided, that (i) the Company
has complied in all material respects with its covenants and agreements under Section 7.7(a), (c) and (d) and in
all respects with its covenants and agreements under Section 7.7(b), and (ii) the Company pays the Termination Fee to Parent in
accordance with Section 9.3(a).
9.2 Effect
of Termination. In the event of termination of this Agreement pursuant to Section 9.1, this Agreement shall forthwith become
null and void and have no effect, without any Liability on the part of any Party; provided, that no such termination shall relieve
any Party of any liability or damages resulting from Actual Fraud or Willful Breach; provided, further, that Section
7.6(b), Section 7.16(b)(ii), this Section 9.2, Section 9.3, Section 9.4 and Article X hereof shall
survive any termination of this Agreement. The Confidentiality Agreement shall not be affected by any termination of this Agreement.
9.3 Termination
Fee.
(a) In
the event that this Agreement is validly terminated pursuant to Section 9.1(h), at or prior to such termination, the Company shall
pay Parent or its designee(s) a termination fee of $5,000,000 (such amount, the “Termination Fee”), by wire transfer
of immediately available funds to an account designated by Parent in writing.
(b) Notwithstanding
anything to the contrary set forth in this Agreement, except in the case of Actual Fraud or Willful Breach, if the Termination Fee is
paid pursuant to Section 9.3(a), such payment(s) shall constitute the sole and exclusive remedy of Parent, Merger Sub, any of their
respective Subsidiaries or any of their respective former, current or future general or limited partners, shareholders, Representatives
or assignees against the Company, SpinCo, any of their respective Subsidiaries and any of their respective former, current or future general
or limited partners, shareholders, Representatives or assignees (together with the Company, collectively, the “Company Related
Parties”) for all losses and damages suffered as a result of the failure of the Transactions to be consummated or for a breach
or failure to perform hereunder or otherwise, and none of the Company Related Parties shall have any further liability or obligation relating
to or arising out of this Agreement or the Transactions.
(c) If
the Company fails to pay promptly any amount due under this Section 9.3, as applicable, and in order to obtain such payment, the
Parent commences an Action that results in a judgment against the Company for any amount owed thereby under this Section 9.3, as
applicable, the Company shall reimburse Parent for its reasonable and documented costs and expenses (including reasonable and documented
attorneys’ fees) in connection with such Action.
(d) Each
of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Transactions, (ii)
without these agreements, the Parties would not enter into this Agreement and (iii) the Termination Fee does not constitute a penalty,
but rather is liquidated damages in a reasonable amount that will compensate Parent for the efforts and resources expended and opportunities
foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions,
which amount would otherwise be impossible to calculate with precision.
9.4 Fees
and Expenses. Except (a) for the filing fee incurred in connection with the filings with any Governmental Authorities pursuant to
Section 7.5(b), which will be borne by the Company, or (b) as otherwise provided in this Agreement, all fees and expenses incurred
by the Parties shall be borne solely by the Party that has incurred such fees and expenses, whether or not the Merger is consummated.
Article
X
MISCELLANEOUS
10.1 Trust
Account. As of the Effective Time, the obligations of Parent to dissolve or liquidate within a specified time period as contained
in Parent’s Certificate of Incorporation will be terminated and Parent shall have no obligation whatsoever to dissolve and liquidate
the assets of Parent by reason of the consummation of the Merger or otherwise, and no stockholder of Parent shall be entitled to receive
any amount from the Trust Account. At least 48 hours prior to the Effective Time, Parent shall provide notice to the Trustee in accordance
with the Trust Agreement and shall deliver any other documents, opinions or notices required to be delivered to the Trustee pursuant to
the Trust Agreement and cause the Trustee prior to the Effective Time to, and the Trustee shall thereupon be obligated to, transfer all
funds held in the Trust Account to Parent (to be held as available cash on the balance sheet of Parent, and to be used for working capital
and other general corporate purposes of the business following the Closing) and thereafter shall cause the Trust Account and the Trust
Agreement to terminate.
10.2 Non-Survival
of Representations, Warranties and Agreements. The obligations, covenants and agreements that by their terms are to be performed following
the Closing pursuant to any Transaction Document, or this Agreement shall survive the Effective Time in accordance with their terms and
all other obligations, covenants and agreements herein and therein shall terminate and shall not survive the Closing, except that this
Article X shall survive the Closing indefinitely. None of the representations or warranties in this Agreement or in any certificate
or instrument delivered pursuant to this Agreement shall survive the Effective Time. Effective as of the Closing, there are no remedies
available to the Parties with respect to any breach of the representations, warranties, covenants or agreements of the Parties, except
in the case of fraud, and except, with respect to those covenants and agreements contained herein that by their terms apply or are to
be performed in whole or in part after the Closing, and the remedies that may be available under Section 10.9. The Confidentiality
Agreement shall survive the execution and delivery of this Agreement and any termination of this Agreement, and the provisions of the
Confidentiality Agreement shall apply to all information and material furnished by any Party or its Representatives thereunder or hereunder;
provided, that, following the Effective Time, Parent shall have no obligations under the Confidentiality Agreement with respect
to information related solely to SpinCo, the SpinCo Business or the SpinCo Assets.
10.3 Governing
Law; Jurisdiction.
(a) This
Agreement, and all claims, disputes, controversies or causes of action (whether in contract, tort, equity or otherwise) that may be based
upon, arise out of or relate to this Agreement (including any schedule or exhibit hereto) or the negotiation, execution or performance
of this Agreement (including any claim, dispute, controversy or cause of action based upon, arising out of or related to any representation
or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by and construed
in accordance with the Laws of the State of Delaware, without regard to any choice or conflict of law provision or rule (whether of the
State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of
Delaware; provided, that the Domestication shall be effected in accordance with both the DGCL and the CICA (as applicable), without
giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application
of Laws of another jurisdiction.
(b) Each
of the Parties agrees that any Action related to this agreement shall be brought exclusively in the Court of Chancery of the State of
Delaware or, if under applicable Law, exclusive jurisdiction over such matter is vested in the federal courts, any federal court in the
State of Delaware and any appellate court from any thereof (the “Chosen Courts”). By executing and delivering this
Agreement, each of the Parties irrevocably: (i) accepts generally and unconditionally submits to the exclusive jurisdiction of the Chosen
Courts for any Action relating to this Agreement; (ii) waives any objections which such party may now or hereafter have to the laying
of venue of any such Action contemplated by this Section 10.3 and hereby further irrevocably waives and agrees not to plead or
claim that any such Action has been brought in an inconvenient forum; (iii) agrees that it will not attempt to deny or defeat the personal
jurisdiction of the Chosen Courts by motion or other request for leave from any such court; (iv) agrees that it will not bring any Action
contemplated by this Section 10.3 in any court other than the Chosen Courts; (v) agrees that service of all process, including
the summons and complaint, in any Action may be made by registered or certified mail, return receipt requested, to such party at their
respective addresses provided in accordance with Section 10.4 or in any other manner permitted by Law; and (vi) agrees that service
as provided in the preceding clause (v) is sufficient to confer personal jurisdiction over such party in the Action, and otherwise constitutes
effective and binding service in every respect. Each of the parties hereto agrees that a final judgment in any Action in a Chosen Court
as provided above may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law, and each party
further agrees to the non-exclusive jurisdiction of the Chosen Courts for the enforcement or execution of any such judgment.
10.4 Notices.
All notices and other communications among the Parties shall be in writing and shall be deemed to have been duly given (a) when delivered
in person, (b) when delivered after posting in the national mail having been sent registered or certified mail return receipt requested,
postage prepaid, (c) when delivered by FedEx or other internationally recognized overnight delivery service or (d) when delivered by facsimile
(solely if receipt is confirmed) or email (so long as the sender of such email does not receive an automatic reply from the recipient’s
email server indicating that the recipient did not receive such email), addressed as follows:
if to the Company or SpinCo, to:
Citius Pharmaceuticals, Inc.
11 Commerce Drive, First Floor
Cranford, NJ 07016
Attention: Jaime Bartushak
Email: jbartushak@citiuspharma.com
with a copy (which shall not constitute notice) to:
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
Alec Donaldson
| Email: | dcreekman@wyrick.com |
adonaldson@wyrick.com
if to Parent, to:
TenX Keane Acquisition
420 Lexington Avenue, Suite 2446
New York, New York 10170
| Email: | tzhang@ascendantga.com |
with a copy (which shall not constitute notice) to:
The Crone Law Group
420 Lexington Avenue, Suite 2446
New York, New York 10170
Samara Thomas
| Email: | tfort@cronelawgroup.com |
sthomas@cronelawgroup.com
or to such other address or addresses as the Parties may from time
to time designate in writing by like notice.
10.5 Headings.
The headings contained in this Agreement are inserted for convenience only and shall not be considered in interpreting or construing any
of the provisions contained in this Agreement.
10.6 Entire
Agreement. This Agreement (including the Exhibits and Schedules hereto), the Confidentiality Agreement and the Transaction Documents
constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof and supersede all prior agreements
and understandings between the Parties with respect to such subject matter; except that this Agreement shall not supersede the terms and
provisions of the Confidentiality Agreement, which shall survive and remain in effect until expiration or termination thereof in accordance
with its respective terms (subject to Section 10.2).
10.7 Amendments
and Waivers.
(a) Any
Party may, at any time prior to the Closing, by action taken by its board of directors, or officers thereunto duly authorized, waive any
inaccuracies in the representations and warranties of the other Party contained herein or in any document, certificate or writing delivered
pursuant hereto and any of the terms or conditions of this Agreement or (without limiting Section 10.7(b)) agree to an amendment
or modification to this Agreement by an agreement in writing executed in the same manner (but not necessarily by the same Persons) as
this Agreement. No waiver by any of the Parties of any breach hereunder shall be deemed to extend to any prior or subsequent breach hereunder
or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. No waiver by any of the Parties of any of
the provisions hereof shall be effective unless explicitly set forth in writing and executed by the Party sought to be charged with such
waiver.
(b) This
Agreement may be amended or modified, in whole or in part, only by a duly authorized agreement in writing executed by the Parties in the
same manner (but not necessarily by the same Persons) as this Agreement, and which makes reference to this Agreement.
10.8 Assignment;
Parties in Interest; Non-Parties.
(a) No
Party may assign its rights or delegate its duties under this Agreement without the prior written consent of the other Parties. Any attempted
assignment or delegation in breach of this Section 10.8 shall be null and void. This Agreement shall be binding upon and inure
to the benefit of the Parties and their respective permitted successors and assigns. Nothing expressed or implied in this Agreement is
intended or shall be construed to confer upon or give any Person, other than the Parties, any rights or remedies under or by reason of
this Agreement, except as provided in Section 10.8(b) (which is intended to be for the benefit of the Persons covered thereby and
may be enforced by such Persons).
(b) Notwithstanding
anything to the contrary in this Agreement, it is hereby agreed and acknowledged that this Agreement may only be enforced against, and
any claims of action that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of
this Agreement may only be made against, the Parties hereto, and no former, current or future Affiliates, officers, directors, managers,
employees, equityholders, lenders, financing sources, managers, members, partners, agents or representatives of any Party, in each case,
who is not a Party to this Agreement, shall have any liability for any obligations of the Parties hereto or for any claim based on, in
respect of, or by reason of, the Transactions.
10.9 Specific
Performance.
(a) The
Parties agree and acknowledge that the failure to perform under this Agreement will cause an actual, immediate and irreparable harm and
injury and that the Parties would not have any adequate remedy at law in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms (including failing to take such actions as are required of them hereunder to consummate
the Transactions) or were otherwise breached. Accordingly, it is agreed that, (i) each of the Parties shall be entitled to seek an injunction
or injunctions, specific performance or other equitable relief, each without proof of damages prior to the valid termination of this Agreement
in accordance with Section 9.1, to prevent breaches or threatened breaches of this Agreement by any other Party and to specifically
enforce the terms and provisions of this Agreement, this being in addition to any other remedy to which they are entitled under this Agreement,
and (ii) prior to the Closing or any termination of this Agreement in accordance with Section 9.1, damages shall be awarded only
in a case where a court of competent jurisdiction determines that, notwithstanding the Parties’ intention for specific performance
to be the applicable remedy prior to termination or the Closing, such specific performance is not available or otherwise will not be granted
as a remedy.
(b) The
Parties further agree that (i) by seeking the remedies provided for in this Section 10.9, a Party shall not in any respect waive
its right to seek any other form of relief that may be available to a party under this Agreement, including monetary damages, subject
to the terms hereof, (ii) nothing contained in this Section 10.9 shall require any Party to institute any proceeding for (or limit
any Party’s right to institute any proceeding for) specific performance under this Section 10.9 before exercising any termination
right under Section 9.1 (and pursuing damages after such termination), nor shall the commencement of any Action pursuant to this
Section 10.9 or anything contained in this Section 10.9 restrict or limit any Party’s right to terminate this Agreement
in accordance with the terms of Section 9.1 or to pursue any other remedies under this Agreement that may be available then or
thereafter; (iii) the right of specific enforcement is an integral part of the Transactions and without that right, none of the Parties
would have entered into this Agreement; and (iv) no Person shall be required to obtain, furnish or post any bond or similar instrument
in connection with or as a condition to obtaining any remedy referred to in this Section 10.9, and each Party irrevocably waives
any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
(c) To
the extent either party hereto brings any Action to enforce specifically the performance of the terms and provisions of this Agreement
in accordance with this Section 10.9, the Outside Date shall automatically be extended by (i) the amount of time during which such
Action is pending, plus twenty (20) Business Days, or (ii) such other time period established by the court presiding over such Action.
10.10 WAIVER
OF JURY TRIAL. THE PARTIES HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVE (AND SHALL CAUSE THEIR SUBSIDIARIES AND AFFILIATES TO WAIVE)
THEIR RIGHT TO TRIAL BY JURY IN ANY JUDICIAL PROCEEDING IN ANY COURT RELATING TO ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF, RELATING
TO OR IN CONNECTION WITH THIS AGREEMENT, THE TRANSACTIONS, OR ANY TRANSACTION DOCUMENT (INCLUDING ANY SCHEDULE OR EXHIBIT HERETO AND THERETO)
OR THE BREACH, TERMINATION OR VALIDITY OF SUCH AGREEMENTS OR THE NEGOTIATION, EXECUTION OR PERFORMANCE OF SUCH AGREEMENTS. NO PARTY TO
THIS AGREEMENT SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE BASED UPON, OR ARISING
OUT OF, THIS AGREEMENT, THE TRANSACTIONS, ANY TRANSACTION DOCUMENT, OR ANY RELATED INSTRUMENTS. NO PARTY WILL SEEK TO CONSOLIDATE ANY
SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EACH PARTY
TO THIS AGREEMENT CERTIFIES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT OR INSTRUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS SET FORTH ABOVE IN THIS SECTION 10.10. NO PARTY OR REPRESENTATIVE OF ANY PARTY HAS IN ANY WAY AGREED WITH OR
REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION 10.10 WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
10.11 Severability.
If any provision of this Agreement or any Transaction Document, or the application of any such provision to any Person or circumstance,
shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other provision hereof. The Parties further agree that if any provision contained herein is, to any extent, held
invalid or unenforceable in any respect under the Laws governing this Agreement, they shall take any actions necessary to render the remaining
provisions of this Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, shall amend or
otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable
provision giving effect to the intent of the Parties.
10.12 Counterparts.
This Agreement may be executed in two or more counterparts (including by electronic or .pdf transmission), each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument. Delivery of any signature page by facsimile, electronic
or .pdf transmission shall be binding to the same extent as an original signature page.
10.13 Disclosure
Schedules. The Company Disclosure Schedule, the SpinCo Disclosure Schedule and the Parent Disclosure Schedule (each, a “Disclosure
Schedule” and, collectively, the “Disclosure Schedules”) (including, in each case, any section thereof) referenced
herein are a part of this Agreement as if fully set forth herein. All references herein to the Company Disclosure Schedule, SpinCo Disclosure
Schedule and Parent Disclosure Schedule (including, in each case, any section thereof) shall be deemed references to such parts of this
Agreement, unless the context shall otherwise require. Certain information set forth in the Disclosure Schedules is included solely for
informational purposes and may not be required to be disclosed pursuant to this Agreement. The disclosure of any information in any Disclosure
Schedule shall not be deemed to constitute in itself an acknowledgment that such information is required to be disclosed in connection
with this Agreement, nor shall such information be deemed to establish a standard of materiality.
[Signature page follows.]
IN WITNESS WHEREOF, the Parties have caused this
Agreement and Plan of Merger and Reorganization to be duly executed by their respective authorized officers as of the day and year first
above written.
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CITIUS PHARMACEUTICALS, INC. |
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By: |
/s/ Leonard Mazur |
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Name: |
Leonard Mazur |
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Title: |
Chief Executive Officer and Chairman of the Board |
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CITIUS ONCOLOGY, INC. |
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By: |
/s/ Leonard Mazur |
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Name: |
Leonard Mazur |
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Title: |
Chief Executive Officer and Chairman of the Board |
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TENX KEANE ACQUISITION |
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By: |
/s/ Xiaofeng Yuan |
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Name: |
Xiaofeng Yuan |
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Title: |
Chief Executive Officer and Chairman of the Board |
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TENX MERGER SUB, INC. |
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By: |
/s/ Xiaofeng Yuan |
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Name: |
Xiaofeng Yuan |
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Title: |
Chief Executive Officer and Chairman of the Board |
ANNEX A
Defined Terms
Terms with initial capitalized
letters used in the Agreement to which this Annex A is attached will have the following respective meanings, and all references
to Sections, Schedules or Annexes in the following definitions will refer to Sections, Schedules or Annexes of or to such Agreement:
“Action”
means any claim, action, suit, demand, litigation, arbitration, mediation, inquiry, investigation, hearing, inquest, or other proceeding,
in each case, by any Person or Governmental Authority, in each case, before, heard by or otherwise involving any Governmental Authority.
“Actual Fraud”
means, with respect to a Party, an actual and intentional fraud with respect to the making of the representations and warranties pursuant
to Article IV, Article V or Article VI (as applicable).
“Affiliate”
means, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by, or is under common control
with, such Person, through one or more intermediaries or otherwise; provided, that, for the purposes of this definition, “control”
(including, with correlative meanings, 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 and
policies of such Person, whether through the ownership of voting securities, by Contract or otherwise. Following the Effective Time, Affiliates
of Parent shall include SpinCo.
“Aggregate Consideration”
means Six Hundred and Seventy-Five Million Dollars ($675,000,000).
“Aggregate Parent
Common Stock Consideration” means the quotient of (i) the Aggregate Consideration divided by (ii) $10.
“Agreement”
means this Agreement and Plan of Merger and Reorganization, including all Annexes, Exhibits and Schedules hereto (including the SpinCo
Disclosure Schedule, the Company Disclosure Schedule, and the Parent Disclosure Schedule), as it may be amended, restated, modified or
supplemented from time to time in accordance with its terms.
“Amended and Restated
Shared Services Agreement” means the Amended and Restated Shared Services Agreement to be entered into at the Closing, in substantially
the form attached as Exhibit E hereto, between the Company and the Surviving Corporation which amends and restates in its entirety
the Shared Services Agreement.
“Antitrust Laws”
means the Sherman Act, as amended, the Clayton Act, as amended, the Federal Trade Commission Act, as amended, the HSR Act and all other
applicable Laws issued by a Governmental Authority that are designed or intended to prohibit, restrict or regulate actions having the
purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
“Base Exchange Ratio”
means the quotient of (a) the Aggregate Parent Common Stock Consideration, divided by (b) the aggregate number of shares of SpinCo Common
Stock outstanding as of immediately prior to the Effective Time.
“Balance Sheet Date”
means June 30, 2023.
“Benefit Plan”
means each employment, compensation, benefits, severance or termination, consulting, bonus, deferred compensation, equity, phantom-equity,
or equity-based award, retention, relocation, vacation, change in control, transaction bonus, salary continuation, hospitalization, medical,
dental, vision, life insurance, disability or sick leave benefit, profit-sharing, pension or retirement or other fringe benefit or compensatory
plan, program, agreement or arrangement, whether or not in writing and whether or not funded, including any “employee benefit plan”
(within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA) but excluding any plan or program sponsored by a Governmental
Authority.
“BLA” means
a biologics license application for LYMPHIRTM (denileukin diftitox), submitted to the FDA pursuant to 42 U.S.C. §
262 and 21 C.F.R. Part 601, and all supplements, amendments, variations, extensions and renewals thereto (and including correspondence
and reports submitted to or received from FDA with respect to any of the foregoing (including minutes and official contact reports relating
to any communications with FDA)).
“Business Combination”
has the meaning set forth in Parent’s Governing Documents as in effect on the date hereof.
“Business Day”
means any day that is not a Saturday, a Sunday, or another day on which banking institutions in New York, New York or Governmental Authorities
in the Cayman Islands (for so long as Parent remains domiciled in the Cayman Islands) are authorized or obligated by Law to be closed.
“Cayman Registrar”
means the Registrar of Companies of the Cayman Islands.
“Code”
means the U.S. Internal Revenue Code of 1986, as amended.
“Company Benefit
Plan” means any Benefit Plan sponsored, maintained, or contributed to (or required to be contributed to) by the Company or any
of its Subsidiaries that (a) is or has been maintained, sponsored, contributed to or entered into by the Company or any of its Subsidiaries
for the benefit of any Person that provides services to SpinCo as an employee or independent contractor or for which SpinCo could have
any Liability, and (b) that is not a SpinCo Benefit Plan.
“Commercialization
Plan” means the PowerPoint document titled “Lymphir Commercial Gantt Chart for Launch/Lymphir Launch Timeline” delivered
by the Company to Parent on October 18, 2023.
“Company Disclosure
Schedule” means the Disclosure Schedule delivered by the Company to Parent on the date hereof and identified as such.
“Company FDA Letter”
means the letter from the Company to the FDA, duly executed by the Company, to be filed with the FDA, which letter notifies the FDA that
all ownership rights of the BLA and IND will transfer from the Company to SpinCo (or the Surviving Corporation, if applicable) effective
as of the date of such letter.
“Company Material
Adverse Effect” means any Effect that (a) has, or would reasonably be expected to have, individually or in the aggregate, a
material adverse effect on the business, results of operations, condition (financial or otherwise), or assets of the Company and its Subsidiaries,
taken as a whole, provided, that none of the following shall be deemed in themselves, either alone or in combination, to constitute,
and none of the following shall be taken into account in determining whether there has been or would reasonably be expected to be, individually
or in the aggregate, a Company Material Adverse Effect for purposes of clause (a): (i) any changes resulting from general market, economic,
financial, capital markets or regulatory conditions, (ii) any general changes in the credit, debt, financial or capital markets or changes
in interest or exchange rates, (iii) any changes in applicable Law or GAAP (or, in each case, authoritative interpretations thereof),
(iv) any changes resulting from any natural disaster, including any hurricane, storm, flood, tornado, volcanic eruption, earthquake, other
weather-related events, or other comparable events, or any worsening thereof, (v) any changes resulting from local, national or international
political conditions, including the outbreak or escalation of any military conflict, declared or undeclared war, armed hostilities, acts
of foreign or domestic terrorism or civil unrest, (vi) any changes generally affecting the industries in which the Company conducts its
businesses, (vii) any changes directly resulting from the execution of this Agreement or the Transaction Documents or the announcement
or the pendency of the Merger or the Transactions but not the consummation of the Transactions contemplated hereunder, including actions
of suppliers, landlords, distributors, partners or Governmental Authorities (provided, that this clause (vii) shall not apply to
any representation or warranty to the extent the purpose of such representation or warranty is to address, as applicable, the consequences
resulting from the execution of this Agreement or the announcement or the pendency of the Merger), (viii) any changes resulting from any
action required to be taken by the terms of this Agreement or at the explicit request or direction of the Company, (ix) the failure to
meet any internal or analysts’ expectations, projections or results of operations (but not, in each case, the underlying cause of
any such changes, unless such underlying cause would otherwise be excepted by another clause of this definition), or (x) any changes resulting
from any epidemics, pandemics or disease (including COVID-19 or any COVID-19 Measures or any change in COVID-19 Measures following the
date hereof) provided, that in the case of clauses (i), (ii), (iii), (iv), (v), (vi) and (x), if such Effect disproportionately
impacts the Company as compared to other participants in similar industries to the industries in which the Company operates, the incremental
disproportionate impact thereof shall be taken into account in determining whether a Company Material Adverse Effect has occurred or would
reasonably be expected to occur; or (b) has impaired or delayed, individually or in the aggregate, or would reasonably be expected to
impair or delay, individually or in the aggregate, the ability of the Company to timely perform its obligations hereunder or under the
other Transaction Documents or to consummate the Transactions on a timely basis, including the Merger, or prevent it from performing such
obligations or consummating such Transactions.
“Company Real Property”
means any real property owned, leased, subleased, licensed or otherwise occupied by SpinCo pursuant to the Shared Services Agreement.
“Company SEC Documents”
means all forms, reports, Schedules, statements and other documents required to be filed or furnished by the Company with the SEC since
August 23, 2021.
“Confidentiality
Agreement” means that certain Confidentiality Agreement, by and between Parent and the Company, dated as of April 25, 2023.
“Consent”
means any consent, clearance, expiration or termination of a waiting period, approval, exemption, waiver, authorization, filing, registration
or notification.
“Contract”
means any legally binding contract, agreement, understanding, arrangement, note, bond, indenture, lease, purchase order, sublicense or
license or other instrument.
“COVID-19”
means SARS-CoV-2 or COVID-19, and any evolutions or mutations thereof or related or associated epidemics, pandemics or disease outbreaks.
“COVID-19 Measures”
means any quarantine, “shelter in place,” “stay at home,” social distancing, shut down, closure, sequester, workplace
safety or similar Law, directive, guidelines or recommendations promulgated by any industry group or any Governmental Authority, including
the Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection with or in response to COVID-19,
including the CARES Act and Families First Coronavirus Response Act.
“Effect”
means any change, circumstance, fact, event, development, condition, occurrence or effect.
“Entity”
means any Person that is a legal entity; provided, that when used in reference to Parent, “Entity” means Parent together
with its Subsidiaries, taken as a whole.
“Environmental Law”
means any Law relating to pollution or protection of the environment (including air quality, surface water, groundwater, soils, subsurface
strata, sediments, drinking water), natural resources, or human health and safety (to the extent related to exposure to Hazardous Materials
or hazardous conditions) or the use, registration, management, generation, storage, treatment, recycling, transportation, Release, threatened
Release, investigation or remediation of Hazardous Materials.
“ERISA”
means the U.S. Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated and rulings issued thereunder.
“Exchange Act”
means the U.S. Securities Exchange Act of 1934, as amended.
“Exchange Agent”
means American Stock Transfer & Trust Company.
“FDA” means
the U.S. Food and Drug Administration.
“FDCA”
means the U.S. Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq., as amended.
“GAAP”
means generally accepted accounting principles in the United States.
“Governing Documents”
means the legal document(s) by which any Person (other than an individual) establishes its legal existence or which govern its internal
affairs. For example, the “Governing Documents” of a corporation are its certificate of incorporation and by-laws,
the “Governing Documents” of a limited partnership are its limited partnership agreement and certificate of limited
partnership, the “Governing Documents” of a limited liability company are its operating agreement and certificate of
formation and the “Governing Documents” of an exempted company are its memorandum and articles of association (in each
case, as amended, restated, amended and restated or otherwise modified from time to time).
“Governmental Authority”
means any federal, state, local, transnational, supranational or foreign government, any Person exercising executive, legislative, judicial,
regulatory or administrative function of or pertaining to government or Law, including any regulatory, self-regulatory or quasi-regulatory
authority, agency, commission, body, department or other instrumentality, and any court, arbitral body or tribunal of competent jurisdiction.
“Government Official”
means any officer or employee of a Governmental Authority or any department, agency, or instrumentality thereof, including any political
subdivision thereof or any corporation or other Person owned or controlled in whole or in part by any Governmental Authority or any sovereign
wealth fund, or of a public international organization, or any Person acting in an official capacity for or on behalf of any such government
or department, agency, or instrumentality, or for or on behalf of any such public international organization, or any political party,
party official, or candidate thereof.
“Hazardous Material”
means any toxic, reactive, corrosive, ignitable or flammable chemical or chemical compound, or hazardous or toxic substance, material
or waste, or any pollutant or contaminant, whether solid, liquid or gas, or any other substance, material or waste that is subject to
regulation, control or remediation or for which liability or standards of care are imposed under any Environmental Law, including petroleum
(including crude oil or any fraction thereof), radon, asbestos, radioactive materials, per- and polyfluoroalkyl substances and polychlorinated
biphenyls.
“Healthcare Laws”
means (a) the FDCA, and the regulations promulgated thereunder, (b) the Public Health Service Act (42 U.S.C. 201 et seq.), and the regulations
promulgated thereunder, (c) all federal and state fraud and abuse Laws, including the Federal Anti-Kickback Statute, the civil False Claims
Act, the Anti-Inducement Law, the exclusion Laws, and the regulations promulgated pursuant to such statutes, (d) the Health Insurance
Portability and Accountability Act of 1996, and the regulations promulgated thereunder, and comparable state Laws, (e) Titles XVIII and
XIX of the Social Security Act, and the regulations promulgated thereunder and (f) all other applicable healthcare Laws, rules and regulations,
ordinances, judgments, decrees, orders, writs and injunctions administered by Regulatory Authorities, each of clause (a) through (f),
as may be amended from time to time.
“HSR Act”
means the U.S. Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.
“IND” means
an investigational new drug application related to denileukin diftitox filed with the FDA for authorization to commence clinical studies,
and all supplements and amendments that may be filed with respect to the foregoing.
“Intellectual Property”
means all intellectual property rights and related priority rights protected, created or arising under the Laws of the United States or
any other jurisdiction or under any international convention, including all (a) patents and patent applications, industrial designs and
design patent rights, including any continuations, divisionals, continuations-in-part and provisional applications and statutory invention
registrations, and any patents issuing on any of the foregoing and any revisions, reissues, reexaminations, substitutes, supplementary
protection certificates, or extensions of any of the foregoing; (b) trademarks, service marks, trade names, service names, brand names,
trade dress rights, logos, Internet domain names, social media accounts, corporate names and other source or business identifiers, together
with the goodwill associated with any of the foregoing, and all applications, registrations, extensions and renewals of any of the foregoing;
(c) copyrights and works of authorship and computer software, database and design rights, and rights in data collections, mask work rights
and moral rights, whether or not registered or published, and all registrations, applications, renewals, extensions and reversions of
any of any of the foregoing; (d) trade secrets, know-how and confidential and proprietary information, whether or not patentable, including
invention disclosures, inventions, formulae, designs, discoveries, processes, research and development information, technical information,
methods, techniques, procedures, specifications, operating and maintenance manuals, methods, and engineering drawings (collectively, “Trade
Secrets”); and (e) any other intellectual or proprietary rights protectable, arising under or associated with any of the foregoing,
including those protected by any Law (including under international treaties or conventions) anywhere in the world.
“Interests”
means shares, partnership interests, limited liability company interests or any other equity interest in any Person that is an Entity.
“Intervening Event”
means an Effect first arising after the date of this Agreement that is materially adverse to the business, condition (financial or otherwise),
assets, liabilities or results of operations of the SpinCo Business or SpinCo, taken as a whole; provided, that none of the following
shall be deemed in themselves, either alone or in combination, to constitute, and none of the following shall be taken into account in
determining whether there has been or would reasonably be expected to be, individually or in the aggregate, an Intervening Event:
(a) any Contract, proposal, offer or indication of interest in any form, written or oral, relating any Business Combination with respect
to Parent, (b) clearance (or the absence of clearance) of the Transaction by any Governmental Authority, including Effects relating to
actions taken pursuant to or required to be taken pursuant to Section 7.5, (c) any change in the price or trading volume of
Parent Common Stock, (d) the Company’s, SpinCo’s or any of their respective Subsidiaries’ meeting, failing to meet or
exceeding projections (in and of itself, but not the underlying causes thereof), (e) any changes resulting from general market, economic,
financial, capital markets or regulatory conditions, (f) any general changes in the credit, debt, financial or capital markets or changes
in interest or exchange rates, (g) any changes in applicable Law or GAAP (or, in each case, authoritative interpretations thereof), (h)
any changes resulting from any natural disaster, including any hurricane, storm, flood, tornado, volcanic eruption, earthquake, other
weather-related events, or other comparable events, or any worsening thereof, (i) any changes resulting from local, national or international
political conditions, including the outbreak or escalation of any military conflict, declared or undeclared war, armed hostilities, acts
of foreign or domestic terrorism or civil unrest, (j) any changes generally affecting the industries in which SpinCo conducts its business,
(k) any changes directly resulting from the execution of this Agreement or the announcement or the pendency of the Merger (but not the
consummation of the Transactions contemplated hereunder), including actions of suppliers, landlords, distributors, partners or Governmental
Authorities (provided, that this clause (k) shall not apply to any representation or warranty to the extent the purpose of such representation
or warranty is to address, as applicable, the consequences resulting from the execution of this Agreement or the announcement or pendency
of the Merger), (l) any changes resulting from any action required to be taken by the terms of this Agreement or at the explicit request
or direction of Parent or Merger Sub, (m) the failure to meet any internal or analysts’ expectations, projections or results of
operations (but not, in each case, the underlying cause of any such changes, unless such underlying cause would otherwise be excepted
by another clause of this definition), or (n) any changes resulting from any epidemics, pandemics or disease (including COVID-19 or any
COVID-19 Measures or any change in COVID-19 Measures following the date hereof); provided, that in the case of clause (e), (f),
(g), (i), (j) and (n), if such Effect disproportionately impacts SpinCo or the SpinCo Business as compared to other participants in the
industry in which SpinCo or the SpinCo Business operates, the incremental disproportionate impact thereof shall be taken into account
in determining whether an Intervening Event has occurred or would reasonably be expected to occur; provided, further, that
in the event the BLA for LYMPHIRTM (denileukin diftitox) is not approved by the FDA such event and the Effects of such event
shall be automatically deemed an Intervening Event.
“Investment Company Act” means
the U.S. Investment Company Act of 1940, as amended.
“IRS” means the U.S. Internal
Revenue Service.
“Knowledge” or any other similar
knowledge qualification, means (a) with respect to the SpinCo Group, the actual knowledge of the persons set forth in Section 1.1(a)
of the SpinCo Disclosure Schedule, after reasonable due inquiry and (b) with respect to Parent, the actual knowledge of the persons
set forth in Section 1.1(a) of the Parent Disclosure Schedule, after reasonable due inquiry.
“Law” means any federal, national,
foreign, supranational, state, provincial or local law, statute, code, ordinance, order, decree, award, directive, judgment, ruling, rule,
regulation or similar requirement or rule of law (including common law) issued, promulgated, enforced or enacted by or under the authority
of a Governmental Authority.
“Liability” means any liability
or obligation (whether known or unknown, fixed or variable, determined or determinable, whether asserted or unasserted, whether absolute
or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, whether direct or indirect, and whether due or to become
due).
“Lien” means with respect to
any property or asset, any mortgage, deed of trust, deed to secure debt, pledge, charge, hypothecation, encumbrance, recorded or unrecorded
easement, encroachment, license, option, right of pre-emption or first refusal, security interest or other lien or restriction of any
kind or nature whatsoever, and any agreement to create any of the foregoing.
“NASDAQ” means the U.S. Nasdaq
Capital Market.
“Notice of Approval” means a
notice issued by the FDA to the Company approving the BLA and authorizing the commercialization and sale of LYMPHIRTM (denileukin
diftitox).
“Order” means any judgment,
order, injunction, decree, writ, permit or license of any Governmental Authority or any arbitrator.
“Parent Business Combination Proposal”
means any inquiry, offer, proposal or indication of interest (whether written or oral, binding or non-binding, and other than an inquiry,
offer, proposal or indication of interest made or submitted by Parent to the Company or by the Company to Parent) contemplating or otherwise
relating to any potential Business Combination (other than the Merger or the other Transactions).
“Parent Disclosure Schedule”
means the Disclosure Schedule delivered by Parent to the Company and SpinCo on the date hereof and identified as such.
“Parent Material
Adverse Effect” means any Effect that (a) has, or would reasonably be expected to have, individually or in the aggregate with
any other Effects, a material adverse effect on the business, properties, assets, liabilities, or financial condition of the Parent or
Merger Sub, taken as a whole; provided, that none of the following shall be deemed in themselves, either alone or in combination,
to constitute, and none of the following shall be taken into account in determining whether there has been or would reasonably be expected
to be, individually or in the aggregate, a Parent Material Adverse Effect for purposes of this clause (a): (i) any changes resulting from
general market, economic, financial, capital markets or regulatory conditions, (ii) any general changes in the credit, debt, financial
or capital markets or changes in interest or exchange rates, (iii) any changes in applicable Law or GAAP (or, in each case, authoritative
interpretations thereof), (iv) any changes resulting from any natural disaster, including any hurricane, storm, flood, tornado, volcanic
eruption, earthquake, other weather-related events, or other comparable events, or any worsening thereof, (v) any changes resulting from
local, national or international political conditions, including the outbreak or escalation of any military conflict, declared or undeclared
war, armed hostilities, acts of foreign or domestic terrorism or civil unrest, (vi) any changes generally affecting the industries in
which the Parent conducts its businesses, (vii) any changes directly resulting from the execution of this Agreement or the Transaction
Documents or the announcement or the pendency of the Merger or the Transactions (but not the consummation of the Transactions contemplated
hereunder), including actions of suppliers, landlords, distributors, partners or Governmental Authorities (provided, that this
clause (vii) shall not apply to any representation or warranty to the extent the purpose of such representation or warranty is to address,
as applicable, the consequences resulting from the execution of this Agreement or the announcement or the pendency of the Merger), (viii)
any changes resulting from any action required to be taken by the terms of this Agreement or at the explicit request or direction of the
Company, (ix) the failure to meet any internal or analysts’ expectations, projections or results of operations (but not, in each
case, the underlying cause of any such changes, unless such underlying cause would otherwise be excepted by another clause of this definition),
(x) any changes resulting from any epidemics, pandemics or disease (including COVID-19 or any COVID-19 Measures or any change in COVID-19
Measures following the date hereof) or (xi) elections to redeem shares of Parent Common Stock in connection with the Parent Shareholders
Meeting as required by Parent’s Governing Documents; provided, that in the case of clauses (i), (ii), (iii), (iv), (v), (vi)
and (x), if such Effect disproportionately impacts the Parent or Merger Sub, taken as a whole, as compared to other participants in similar
industries to the industries in which Parent operates, the incremental disproportionate impact thereof shall be taken into account in
determining whether a Parent Material Adverse Effect has occurred or would reasonably be expected to occur; or (b) has impaired or delayed,
individually or in the aggregate, or would reasonably be expected to impair or delay, individually or in the aggregate, the ability of
Parent to timely perform its obligations hereunder or under the other Transaction Documents, or to consummate the Transactions on a timely
basis, including the Merger, or prevent it from performing such obligations or consummating the Transactions.
“Parent Registration Statement”
means the registration statement on Form S-4 to be filed by Parent with the SEC (as amended and supplemented from time to time) to effect
the registration under the Securities Act of the issuance of (a) the shares of Domesticated Parent Common Stock that will be issued to
the Company pursuant to the Merger, and (b) the shares of Domesticated Parent Common Stock, the Domesticated Parent Rights and the Domesticated
Parent Units that will be issued to holders of Parent Common Stock, Parent Rights and Parent Units in the Domestication and the shares
of Domesticated Parent Common Stock underlying such Domesticated Parent Rights and Domesticated Parent Units.
“Parent Share Issuance” means
the issuance of shares of Domesticated Parent Common Stock pursuant to the Domestication and the Merger.
“Parent Share Redemption” means
the election of an eligible holder of Parent Common Stock (as determined in accordance with Parent’s Governing Documents) to redeem
all or a portion of the shares of Parent Common Stock held by such holder at a per-share price, payable in cash, equal to the pro rata
share of the aggregate amount on deposit in the Trust Account (including any interest earned on the funds held in the Trust Account) represented
by such redeemed shares (as determined in accordance with Parent’s Governing Documents and the Trust Agreement, as may be amended
to effect a Parent Share Redemption).
“Parent Shareholder
Approval” means the approval of (a) those Transaction Proposals identified in clauses (A), (B) and (C) of Section 7.4(e)(ii),
in each case, by a special resolution under the CICA (being the affirmative vote of the holders of at least two-thirds (2/3) of the ordinary
shares who, being present and entitled to vote at the Parent Shareholders Meeting, vote at the Parent Shareholders Meeting), (b) those
Transaction Proposals identified in clauses (D), (E), (F) and (I) of Section 7.4(e)(ii), in each case, by an ordinary resolution
under the CICA (being the affirmative vote of the holders of a majority of the ordinary shares who, being present and entitled to vote
at the Parent Shareholders Meeting, vote at the Parent Shareholders Meeting) and (c) those Transaction Proposals identified in clauses
(G) and (H) of Section 7.4(e)(ii), in each case, by an affirmative vote of the number of holders of Parent Common Stock required
to approve such Transaction Proposals under applicable Law and the Governing Documents of Parent.
“Parent Shareholders”
means holders of Parent’s capital stock.
“Parent Subsidiaries”
means all direct and indirect Subsidiaries of Parent. For the avoidance of doubt, following the Effective Time, the Parent Subsidiaries
shall include SpinCo.
“Parent Transaction
Expenses” means any and all fees and expenses of Parent incurred in connection with the transactions contemplated by this Agreement
and the Transaction Documents, including (a) any fees or expenses incurred in connection with the preparation and filing of Parent SEC
Filings, any Extension Amendment and any other actions contemplated by Section 7.16, and any fees and expenses incurred in connection
with the Parent Shareholders Meeting, (b) all brokers’ or finders’ fees and fees and expenses of counsel, investment bankers,
accountants and other advisers, and directors’ and officers’ tail insurance, (c) any change-in-control, transaction bonus,
retention, severance or other similar payments to any current or former employee, consultant, independent contractor, officer, or director
of Parent arising from or incurred in connection with the transactions contemplated by this Agreement and the Transaction Documents, and
(d) the employer portion of any Taxes arising from or incurred in connection with the payments described in clause (c) or otherwise payable
with respect to or in connection with the transactions contemplated by this Agreement and the Transaction Documents, in each case of clauses
(a) through (d) including any such fees or expenses incurred or invoiced following the Closing Date. “Parent Transaction Expenses”
excludes the value of common stock issuable to Newbridge Securities in connection with the transactions contemplated by this Agreement.
“Permits”
means licenses, franchises, permits, certificates, approvals and authorizations from Governmental Authorities.
“Permitted Acquisition
Proposal” means an Acquisition Proposal that relates to any transaction involving the Company so long as such transaction would
not prevent or materially impair or materially delay the Company’s ability to comply with its obligations under this Agreement or
to consummate the transactions contemplated by this Agreement with Parent.
“Permitted Liens”
means (a) requirements and restrictions of zoning, licensing, permitting, building and other similar land-use Laws which are not violated
by the present use or occupancy of the real property subject thereto; (b) Liens for Taxes or mechanics’, materialmen’s and
similar Liens arising or incurred in the ordinary course of business consistent with past practice and with respect to any amounts, in
each case (i) not yet due and payable or (ii) that are being contested in good faith by appropriate proceedings and for which adequate
reserves have been established in accordance with GAAP; (c) all encroachments, overlaps, overhangs, variations in area or measurement,
rights of parties in possession, servitudes or easements (including conservation easements and public trust easements, rights-of-way,
road use Contracts, covenants, conditions, restrictions, reservations, licenses, Contracts and other similar non-monetary matters) of
public record or any other similar matters not of record which would be disclosed by an accurate survey or physical inspection of the
applicable real property; provided, that such Liens, individually or in the aggregate, do not or would not reasonably be expected
to materially impair or interfere with the operation or use of such real property in the ordinary course operation of the respective businesses
of SpinCo or Parent and its Subsidiaries, as applicable, in each case, as currently conducted thereon; (d) with respect to any real property,
(i) the interests and rights of the respective lessors with respect thereto, including any statutory landlord liens and any Lien on the
lessor’s interest therein and (ii) any Liens encumbering the underlying fee title of the real property; provided, that such
Liens, individually or in the aggregate, do not or would not reasonably be expected to materially impair or interfere with the operation
or use of such real property in the ordinary course operation of the respective businesses of SpinCo or Parent and its Subsidiaries, as
applicable, in each case, as currently conducted thereon; (e) any real property Liens that do not, individually or in the aggregate, result
in a Parent Material Adverse Effect or SpinCo Material Adverse Effect, as applicable; (f) reversionary rights in favor of landlords under
any real property leases with respect to any of the buildings or other improvements owned by SpinCo, Parent or any of its Subsidiaries,
as applicable; provided, that such Liens, individually or in the aggregate, do not or would not reasonably be expected to materially
impair or interfere with the operation or use of such real property in the ordinary course operation of the respective businesses of SpinCo
or Parent and its Subsidiaries, as applicable, in each case, as currently conducted thereon; (g) purchase money Liens and Liens securing
rental payments under capital lease agreements; (h) pledges or deposits made in the ordinary course of business consistent with past practice
in connection with workers’ compensation, unemployment insurance and other types of social security (other than pursuant to Section
303(k) or 4068 of ERISA or Section 430(k) of the Code) or to secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, performance and return of money bonds and similar obligations; (i) liens arising under conditional sales Contracts and equipment
leases with third parties entered into in the ordinary course of business consistent with past practice to the extent not subject to any
default; (j) pledges or deposits to secure public or statutory obligations unrelated to any default or violation of any Law; (k) Liens
arising under or created by this Agreement or any Transaction Document (other than as a result of a breach or default under such Contracts);
(l) Liens described on Section 1.1(b) of the SpinCo Disclosure Schedule or Section 1.1(b) of the Parent Disclosure Schedule,
as applicable; and (m) Liens that do not, individually or in the aggregate, materially affect or disrupt the ordinary course operation
of the respective businesses of SpinCo or Parent and its Subsidiaries, as applicable, in each case, taken as a whole.
“Person”
means any individual, state, trust or trustee on behalf of a trust, firm, corporation, partnership, limited liability company, incorporated
or unincorporated association, joint venture, joint stock company, Governmental Authority or other organization or Entity of any kind.
“Personal Information”
means all information in any form or media that identifies or could be used to identify an individual person (including any current, prospective,
or former customer, end user or employee), including any information defined as “personal information” or any similar term
provided by applicable Law or by the Company or SpinCo in any of their public-facing privacy policies or notices, or in any contracts
to which SpinCo is bound as of the date hereof (e.g., “personal data,” “personally identifiable information” or
“PII”).
“Privacy Laws”
means applicable Laws, and self-regulatory guidelines (including of any applicable foreign jurisdiction) relating to the receipt, collection,
compilation, use, storage, processing, sharing, safeguarding, security (technical, physical or administrative), disposal, destruction,
disclosure or transfer (including cross-border) of any Personal Information, including where and to the extent applicable the Federal
Trade Commission Act, California Consumer Privacy Act (CCPA), Payment Card Industry Data Security Standard (PCI-DSS), EU General Data
Protection Regulation (GDPR), any and all applicable Laws relating to breach notification, the use of biometric identifiers, and the use
of Personal Information for marketing purposes.
“Privacy Requirements”
means (i) all applicable Privacy Laws and (ii) all of the Company’s and SpinCo’s public-facing policies and notices, and contractual
obligations to which SpinCo is bound as of the date hereof, relating to the receipt, collection, compilation, use, storage, processing,
sharing, safeguarding, security (technical, physical and administrative), disposal, destruction, disclosure, or transfer (including cross-border)
of Personal Information.
“Proxy Statement”
means the proxy statement to be mailed to the shareholders of Parent relating to the Parent Shareholders Meeting, including any amendments
or supplements thereto.
“Regulatory Authority”
means the FDA or any other comparable Governmental Authority.
“Regulatory Authorizations”
means any approvals, clearances, authorizations, registrations, certifications, licenses, exemptions and permits granted by any Regulatory
Authority, including FDA approval of the BLAs.
“Release”
means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, depositing, escaping, leaching or migration,
disposing or dumping into or through the environment.
“Representative”
means, with respect to any Person, such Person’s directors, managers, members, officers, employees, agents, partners, attorneys,
financial advisors, financing sources, consultants, advisors or other Persons acting on behalf of such Person.
“Rights Agreement”
means the Rights Agreement dated as of October 13, 2022, between Parent and American Stock Transfer & Trust Company, LLC.
“SEC” means
the U.S. Securities and Exchange Commission.
“Securities Act”
means the Securities Act of 1933, as amended.
“Shared Services
Agreement” means the Shared Services Agreement, dated as of June 22, 2022, and effective as of April 1, 2022, by and between
Citius Acquisition Corp. and the Company.
“Specified Period”
means period of time from the date of this Agreement until the later of (i) the date the Parent Registration Statement first becomes publicly
filed on SEC’s EDGAR database, or (ii) February 29, 2024.
“SpinCo Affiliate
Contract” means any Contract (a) between SpinCo, on the one hand, and any present or former officer or director of SpinCo or
“immediate family member” thereof (as defined in Rule 16a-1 under the Exchange Act), on the other hand, or (b) between SpinCo,
on the one hand, and the Company and/or any of its Subsidiaries (other than SpinCo), on the other hand.
“SpinCo Assets”
means all rights, title and ownership interests in and to all properties, claims, Contracts, businesses, or assets (including goodwill),
which constitute all of the interests in real and tangible personal property owned, leased or licensed by SpinCo and are required for
the continued operation of the SpinCo Business as currently conducted, wherever located, of every kind, character and description, whether
real, personal, or mixed, tangible or intangible, whether accrued, contingent or otherwise, in each case, whether or not recorded or reflected
on the books and records or financial statements of any Person, which includes the SpinCo Owned Intellectual Property.
“SpinCo Benefit Plans”
means any Benefit Plan sponsored, maintained or contributed to exclusively by SpinCo.
“SpinCo Business
means the business of developing and commercializing of the SpinCo Products, which shall include the businesses and operations of SpinCo
conducted prior to the Closing and conducted through the use of the SpinCo Assets.
“SpinCo Common Stock”
means the common stock, par value $0.001 per share, of SpinCo.
“SpinCo Equity Incentive
Plan” means the Citius Oncology, Inc. 2023 Omnibus Stock Incentive Plan.
“SpinCo Disclosure
Schedule” means the Disclosure Schedule delivered by the Company and SpinCo to Parent on the date hereof and identified as such.
“SpinCo FDA Letter”
means the letter from SpinCo (or, if applicable, the Surviving Corporation) to the FDA, duly executed by SpinCo (or, if applicable, the
Surviving Corporation), to be filed with the FDA, which letter notifies the FDA that all ownership rights of the BLA and IND will transfer
from the Company to SpinCo (or the Surviving Corporation, if applicable), effective as of the date of such letter.
“SpinCo Financial
Statements” means, collectively, the audited balance sheet of SpinCo as of September 30, 2022 and the related audited statements
of income and cash flows of SpinCo for such fiscal year and the unaudited balance sheet of SpinCo as of the quarter ended June 30, 2023
and the related unaudited statements of income and cash flows of SpinCo for such quarter, each as attached to Section 5.8(a) of the
SpinCo Disclosure Schedule.
“SpinCo Group”
means collectively, SpinCo and the Company.
“SpinCo Intellectual
Property” means, collectively, SpinCo Owned Intellectual Property and SpinCo Licensed Intellectual Property.
“SpinCo Licensed
Intellectual Property” means all Intellectual Property that (x) is licensed from a third party pursuant to a written Contract
to (i) SpinCo or (ii) as of the date hereof, the Company or any of its Subsidiaries (in each case solely with respect to the SpinCo Business),
and (y) is used, practiced or held for use or practice by or on behalf of, as of the date hereof, the Company or any of its Subsidiaries
(in each case solely with respect to the SpinCo Business), including any Intellectual Property that might be included in the BLA.
“SpinCo Material
Adverse Effect” means any Effect that (a) has, or would reasonably be expected to have, individually or in the aggregate with
any other Effects, a material adverse effect on the business, financial condition, properties, assets, liabilities, or results of operations
of SpinCo or the SpinCo Business, taken as a whole; provided, that none of the following shall be deemed in themselves, either
alone or in combination, to constitute, and none of the following shall be taken into account in determining whether there has been or
would reasonably be expected to be, individually or in the aggregate, a SpinCo Material Adverse Effect for purposes of this clause (a):
(i) any changes resulting from general market, economic, financial, capital markets or regulatory conditions, (ii) any general changes
in the credit, debt, financial or capital markets or changes in interest or exchange rates, (iii) any changes in applicable Law or GAAP
(or, in each case, authoritative interpretations thereof), (iv) any changes resulting from any natural disaster, including any hurricane,
storm, flood, tornado, volcanic eruption, earthquake, other weather-related events, or other comparable events, or any worsening thereof,
(v) any changes resulting from local, national or international political conditions, including the outbreak or escalation of any military
conflict, declared or undeclared war, armed hostilities, acts of foreign or domestic terrorism or civil unrest, (vi) any changes generally
affecting the industries in which SpinCo conducts its business, (vii) any changes directly resulting from the execution of this Agreement
or the announcement or the pendency of the Merger (but not the consummation of the Transactions contemplated hereunder), including actions
of suppliers, landlords, distributors, partners or Governmental Authorities (provided, that this clause (vii) shall not apply to any representation
or warranty to the extent the purpose of such representation or warranty is to address, as applicable, the consequences resulting from
the execution of this Agreement or the announcement or pendency of the Merger), (viii) any changes resulting from any action required
to be taken by the terms of this Agreement or at the explicit request or direction of Parent or Merger Sub, (ix) the failure to meet any
internal or analysts’ expectations, projections or results of operations (but not, in each case, the underlying cause of any such
changes, unless such underlying cause would otherwise be excepted by another clause of this definition), or (x) any changes resulting
from any epidemics, pandemics or disease (including COVID-19 or any COVID-19 Measures or any change in COVID-19 Measures following the
date hereof); provided, that in the case of clauses (i), (ii), (iii), (iv), (v), (vi) and (x), if such Effect disproportionately
impacts SpinCo or the SpinCo Business as compared to other participants in the industry in which SpinCo or the SpinCo Business operates,
the incremental disproportionate impact thereof shall be taken into account in determining whether a SpinCo Material Adverse Effect has
occurred or would reasonably be expected to occur; or (b) has impaired, individually or in the aggregate, or would reasonably be expected
to impair or delay, individually or in the aggregate, the ability of SpinCo to timely perform its obligations hereunder or under the other
Transaction Documents, or to consummate the Transactions on a timely basis, including the Merger, or prevent it from performing such obligations
or consummating the Transactions.
“SpinCo Option”
means each option to purchase any SpinCo Common Stock that is unexpired, unexercised and outstanding as of immediately prior to the Effective
Time.
“SpinCo Owned Intellectual
Property” means all Intellectual Property owned or purported to be owned by SpinCo.
“SpinCo Products”
means I/ONTAK, or LYMPHIRTM (denileukin diftitox), a late-stage oncology immunotherapy for the treatment of cutaneous T-cell
lymphoma, a rare form of non-Hodgkin lymphoma.
“Sponsor”
means 10XYZ Holdings LP, a Delaware limited partnership.
“Subsidiary”
means, with respect to any Person, a corporation or other entity of which more than 50% of the voting power of the equity securities or
Interests that by their terms have ordinary voting power to elect a majority of the board of directors or other similar body is owned
or controlled, directly or indirectly, by such Person, or any organization of which such Person or any of its Subsidiaries is, directly
or indirectly, a general partner or managing member or holds a similar role.
“Tax” or
“Taxes” means any and all federal, state, provincial, territorial, local, foreign and other net income tax, alternative
or add-on minimum tax, franchise tax, gross income, adjusted gross income or gross receipts tax, employment related tax (including employee
withholding or employer payroll tax) ad valorem, transfer, franchise, license, excise, severance, stamp, occupation, premium, personal
property, real property, escheat or unclaimed property, capital stock, profits, disability, registration, value added, estimated, customs
duties, and sales or use tax, or other tax or like assessment or charge of any kind whatsoever imposed by a Governmental Authority in
the nature of a tax, together with any interest, penalty, addition to tax or additional amount imposed with respect thereto by a Governmental
Authority, whether disputed or not, and including any secondary Liability for any of the aforementioned.
“Tax Return”
means any return, report, statement, refund, claim, declaration, information return, statement, estimate or other document filed or required
to be filed with a Governmental Authority in respect of Taxes, including any schedule or attachment thereto and including any amendments
thereof.
“Transaction Documents”
means the Sponsor Support Agreement, the A&R Registration Rights Agreement, the Amended and Restated Shared Services Agreement, and
any certificate or other instrument delivered by any Party to any other Party pursuant to this Agreement or any of the foregoing.
“Transaction Process”
means all matters relating to the review of strategic alternatives with respect to SpinCo, including matters relating to (a) the solicitation
of proposals from and negotiations with third parties in connection with the disposition or sale of SpinCo or (b) the drafting, negotiation
or interpretation of any of the provisions of this Agreement or the other Transaction Documents.
“Transactions”
shall mean the Domestication, the Merger and the other transactions contemplated by this Agreement and the Transaction Documents.
“Treasury Regulations”
means the final or temporary regulations promulgated by the U.S. Department of the Treasury under the Code.
“Trust Account”
means the segregated trust account established and governed by the Trust Agreement, as such agreement may be amended from time to time
in accordance with the terms of this Agreement.
“U.S.”
or “United States” means and refers to the United States of America.
“Willful Breach”
means, with respect to any obligation, covenant or agreement of a Party in this Agreement, any material breach of or material failure
to perform such obligation, covenant or agreement that such Party intentionally takes (or intentionally fails to take or perform) with
actual knowledge that such action or omission or failure to perform would, or would reasonably be expected to, cause or result in a material
breach of this Agreement.
Cross References
Each of the following terms is defined in the Section set forth opposite
such term:
Term |
|
Section |
A&R Registration Rights Agreement |
|
Recitals |
Acquisition Proposal |
|
Section 7.1(a)(i) |
Certificate of Merger |
|
Section 2.3(e) |
Chosen Courts |
|
Section 10.3(b) |
CICA |
|
Recitals |
Closing |
|
Section 2.2 |
Closing Date |
|
Section 2.2 |
Company |
|
Preamble |
Company Audit Committee |
|
Section 4.7 |
Company Board |
|
Recitals |
Company Merger Tax Opinion |
|
Section 7.3(c) |
Company Related Parties |
|
Section 9.3(c) |
Closing Statement
Closing Statement Dispute
DGCL |
|
Section 2.7(a)
Section 2.7(b)
Recitals |
Disclosure Schedules |
|
Section 10.13 |
Domesticated Parent Common Stock |
|
Recitals |
Domesticated Parent Option
Domesticated Parent Right |
|
Section 3.1(b)
Recitals |
Domesticated Parent Unit |
|
Recitals |
Domestication |
|
Recitals |
DPA |
|
Section 6.5 |
Effective Time |
|
Section 2.1 |
Exchange Fund |
|
Section 3.2(a) |
Extension Amendment |
|
Section 7.16(a)(iii) |
Extension Date |
|
Section 7.16(a)(iii) |
Extension Fee |
|
Section 7.16(b) |
Fourth Extension |
|
Section 7.16(a)(iii) |
Interim Period |
|
Section 7.1 |
Internal Controls |
|
Section 4.7 |
Intervening Event Notice
Intervening Event Notice Period
Investment |
|
Section 7.4(e)(iii)
Section 7.4(e)(iii)
Section 6.3(e) |
JOBS Act |
|
Section 6.6(a) |
Merger |
|
Recitals |
Merger Consideration |
|
Section 3.1(a)(i) |
Merger Sub |
|
Preamble |
Merger Sub Common Stock |
|
Section 3.1(a)(iv) |
Merger Sub Shareholder Approval |
|
Section 7.15 |
Outside Date |
|
Section 9.1(b) |
Outstanding SpinCo Shares |
|
Section 3.1(a)(i) |
Parent |
|
Preamble |
Term |
|
Section |
Parent Board |
|
Recitals |
Parent Board Recommendation |
|
Recitals |
Parent Bylaws |
|
Section 7.11 |
Parent Charter |
|
Section 7.11 |
Parent Common Stock |
|
Recitals |
Parent Domestication Tax Opinion |
|
Section 7.3(d) |
Parent Equity Incentive Plan
Parent Estimated Transaction Expenses |
|
Section 7.4(e)(ii)
Section 2.3(c) |
Parent Financial Statements |
|
Section 6.6(c) |
Parent Merger Tax Opinion |
|
Section 7.3(c) |
Parent Rights |
|
Recitals |
Parent SEC Filings |
|
Section 6.13 |
Parent Securities |
|
Section 6.3(a) |
Parent Shareholders Meeting |
|
Section 7.4(e)(i) |
Parent Units |
|
Recitals |
Party |
|
Preamble |
Personnel IP Contract |
|
Section 5.18(g) |
PDUFA Date |
|
Section 7.16(b)(i)(C) |
Qualified Group |
|
Section 6.9(c) |
Remedies Exception |
|
Section 4.2 |
Second Extension |
|
Section 7.16(a)(i) |
Security Incident |
|
Section 5.25(c) |
SpinCo |
|
Preamble |
SpinCo Board |
|
Section 5.23 |
SpinCo Material Contracts |
|
Section 5.14(a) |
SpinCo Proposal |
|
Section 7.7(c) |
SpinCo Registered Intellectual Property |
|
Section 5.18(a) |
SpinCo Shareholder Approval |
|
Section 7.15 |
Sponsor Support Agreement |
|
Recitals |
Subsequent Period SpinCo Financial Statements
Subsequent Unaudited SpinCo Financial Statements |
|
Section 7.16(a)
Section 7.16(a) |
Surviving Corporation |
|
Section 2.1 |
Tangible Personal Property |
|
Section 5.7 (a) |
Tax-Free Status |
|
Section 7.3(a) |
Termination Fee |
|
Section 9.3(a) |
Third Extension |
|
Section 7.16(a)(ii) |
Transaction Proposals |
|
Section 7.4(e)(ii) |
Trust Agreement |
|
Section 6.14 |
Trustee |
|
Section 6.14 |
92
Exhibit 99.2
EXECUTION VERSION
Citius Pharmaceuticals, Inc.
11 Commerce Drive, First Floor
Cranford, New Jersey 07016
August 12, 2024
Citius Oncology, Inc. (formerly, TenX Keane Acquisition)
420 Lexington Avenue, Suite 2446
New York, New York 10170
Attention: Taylor Zhang
Email: tzhang@ascendantga.com
Dear Mr. Zhang:
This letter agreement (this
“Letter Agreement”) is sent in reference to that certain Agreement and Plan of Merger and Reorganization, dated
October 23, 2023 (the “Merger Agreement”), by and among Citius Oncology, Inc., a Delaware corporation and formerly
TenX Keane Acquisition, a Cayman Islands exempted company (“Parent”), TenX Merger Sub, Inc., a Delaware corporation
(“Merger Sub”), Citius Pharmaceuticals, Inc., a Nevada corporation (the “Company”)
and Citius Oncology Sub, Inc., a Delaware corporation formerly known as Citius Oncology, Inc. (“SpinCo”), for
purposes of (1) setting forth the understanding of the parties to the Merger Agreement with respect to certain provisions thereof, (2)
confirming the waiver by Parent and Merger Sub of certain provisions of the Merger Agreement, and (3) confirming the waiver by Company
and SpinCo of certain provisions of the Merger Agreement, in each case in accordance with the terms and conditions set forth in this Letter
Agreement. Capitalized terms used but not otherwise defined in this Letter Agreement shall have the meanings ascribed to them in the Merger
Agreement.
| (i) | Each of Parent and Merger Sub hereby irrevocably waive in their entirety the requirements contained in
Section 7.18(a) and Section 7.18(b) of the Merger Agreement pursuant to which, prior to the Closing, the Company and SpinCo
are required to (a) enter into a transfer and assignment agreement, in a form reasonably satisfactory to Parent and the Company, pursuant
to which the Company will transfer the LYMPHIRTM (denileukin diftitox) trademark or trademark application, as applicable, and
SpinCo will accept such transfer and assignment, with such assignment and transfer automatically effective for all purposes as of the
effective date of the Company FDA Letter and the SpinCo FDA Letter, and (b) promptly following the Company’s receipt of the Notice
of Approval, but in no event later than five (5) Business Days thereafter, deliver to the FDA an executed Company FDA Letter and an executed
SpinCo FDA Letter. For the avoidance of doubt, the Company and the Surviving Corporation shall, within sixty (60) days following the Closing
Date, (I) enter into a transfer and assignment agreement, in a form reasonably satisfactory to the Company and the Surviving Corporation,
pursuant to which the Company will transfer the LYMPHIRTM (denileukin diftitox) trademark or trademark application, as applicable,
and the Surviving Corporation will accept such transfer and assignment and (II) in connection therewith, deliver to the FDA an executed
Company FDA Letter and an executed SpinCo FDA Letter. |
| (ii) | Each of Parent and Merger Sub hereby irrevocably waive in their entirety the (a) requirements contained
in Section 2.3(f) of the Merger Agreement pursuant to which on the Closing Date, in connection with the Effective Time, the Company
is required to pay or cause to be paid, by wire transfer of immediately available funds to Parent, $10,000,000 (the “Working
Capital Amount”) as a capital contribution to Parent for purposes of funding working capital of the Surviving Corporation,
and (b) the provisions of Section 7.16(b)(iii) of the Merger Agreement, which state that upon the Closing, the Company will be
repaid by Parent an amount equal to the portion of the Extension Fees that the Company paid either to Sponsor (or its designee) or into
the Trust Account, but only if at the time of the Closing the balance of the Trust Account equals or exceeds $2,000,000; provided,
however, that each such waiver is conditioned upon the Company paying, or causing to be paid, $10,000,000 in accordance with the
provisions of that certain Flow of Funds Memorandum, dated as of even date herewith, by and among Parent, Merger Sub, the Company, SpinCo
and Sponsor (the “Funds Flow”). The Company and SpinCo hereby acknowledge and agree that the execution and delivery
of the Funds Flow as of the date hereof satisfies in full the Parent’s obligation to deliver a written statement at least two (2)
Business Days prior to the Closing Date setting forth the Parent Estimated Transaction Expenses pursuant to Section 2.3(c) of the Merger
Agreement. For the avoidance of doubt, the Company shall not be responsible for, and shall have no obligation to pay, any Parent Estimated
Transaction Expenses or Parent Transaction Expenses, except to the extent expressly set forth in the Funds Flow. |
| (iii) | Each of Parent and Merger Sub hereby irrevocably waive in their entirety the requirements contained in
Section 10.1 of the Merger Agreement pursuant to which Parent is obligated, at least 48 hours prior to the Effective Time, to provide
notice to the Trustee in accordance with the Trust Agreement and deliver any other documents, opinions or notices required to be delivered
to the Trustee pursuant to the Trust Agreement, and cause the Trustee as of the Effective Time to transfer all funds held in the Trust
Account to Parent (to be held as available cash on the balance sheet of Parent, and to be used for working capital and other general corporate
purposes of the business following the Closing), and thereafter to cause the Trust Account and the Trust Agreement to terminate; provided,
however, that such waiver is conditioned on, at least 48 hours prior to the Effective Time, Parent providing notice to the Trustee
in accordance with the Trust Agreement, and delivering any other documents, opinions or notices required to be delivered to the Trustee
pursuant to the Trust Agreement, and causing the Trustee as of the Effective Time to transfer all funds held in the Trust Account to the
Company (for use by the Company for such purposes as the Company may determine in its sole discretion), and thereafter causing the Trust
Account and the Trust Agreement to terminate. |
Each of the Parties hereby
acknowledges and agrees that this Letter Agreement was entered into in accordance with the provisions of Section 10.7(a) of the
Merger Agreement. No Party may assert that a condition precedent in the Merger Agreement (including, without limitation, any conditions
set forth in in Section 8.3(a) or Section 8.3(e) of the Merger Agreement) has not been satisfied for failure to comply with
the covenants that the Parties have waived pursuant to this Letter Agreement.
Except as expressly modified
by this Letter Agreement, the Merger Agreement shall remain in full force and effect in accordance with the terms thereof. In the event
of a conflict between the provisions of this Letter Agreement and the Merger Agreement, this Letter Agreement shall control. Sections
10.3, 10.4, 10.7, 10.8, 10.9, 10.10, 10.11, and 10.12 of the Merger Agreement shall
apply to this Letter Agreement mutatis mutandis.
[Signature page follows]
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Sincerely, |
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CITIUS PHARMACEUTICALS, INC. |
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By: |
/s/ Leonard Mazur |
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Name: |
Leonard Mazur |
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Title: |
Chief Executive Officer and Chairman of the Board |
Acknowledged, agreed to and accepted: |
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CITIUS ONCOLOGY SUB, INC., |
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formerly known as Citius Oncology, Inc. |
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By: |
/s/ Leonard Mazur |
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Name: |
Leonard Mazur |
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Title: |
Chief Executive Officer and Chairman of the Board |
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CITIUS ONCOLOGY, INC., |
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formerly TenX Keane Acquisition |
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By: |
/s/ Xiaofeng Yuan |
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Name: |
Xiaofeng Yuan |
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Title: |
Chief Executive Officer and Chairman |
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TENX MERGER SUB, INC. |
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By: |
/s/ Xiaofeng Yuan |
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Name: |
Xiaofeng Yuan |
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Title: |
Chief Executive Officer and Chairman |
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[Signature Page – Side Letter to Agreement and Plan of Merger and Reorganization]
CC:
The Crone Law Group
420 Lexington Avenue, Suite 2446
New York, New York 10170
Attn: Tammara Fort; Samara Thomas
Email: tfort@cronelawgroup.com; sthomas@cronelawgroup.com
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
Attention: Alec Donaldson; David P. Creekman
Email: adonaldson@wyrick.com; dcreekman@wyrick.com
5
Exhibit 99.3
EXECUTION VERSION
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of August 9, 2024, is made and entered into by and
among (i) Citius Oncology, Inc., a Delaware corporation, formerly known as TenX Keane Acquisition, a Cayman Islands exempted company (the
“Company”), (ii) the equityholders designated as Sponsor Equityholders on the signature page hereto (collectively,
the “Sponsor Equityholders”); and (iii) Citius Pharmaceuticals, Inc. (the “Legacy Citius Oncology
Equityholder” and, together with the Sponsor Equityholders and any person or entity who hereafter becomes a party to this
Agreement pursuant to Section 6.2 of this Agreement, the “Holders” and individually, a “Holder”).
Capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to such terms in the Merger Agreement
(as defined below).
RECITALS
WHEREAS, the Company
and the Sponsor Equityholders are parties to that certain Registration Rights Agreement, dated as of October 13, 2022 (the “Prior
Agreement”);
WHEREAS, the Company,
TenX Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and Citius Oncology Sub, Inc., an entity formerly
known as Citius Oncology, Inc., a Delaware corporation (“Legacy Citius Oncology”), are parties to that certain
Agreement and Plan of Merger, dated as of October 23, 2023 (as amended or restated from time to time, the “Merger Agreement”),
pursuant to which, on the date hereof, Merger Sub merged (the “Merger”) with and into Legacy Citius Oncology,
with Legacy Citius Oncology surviving the Merger as a wholly owned subsidiary of the Company;
WHEREAS, the Legacy
Citius Oncology Equityholder is receiving shares of common stock, par value $0.0001 per share, of the Company (the “Common
Stock”) on or about the date hereof, pursuant to the Merger Agreement (the “Merger Shares”);
WHEREAS, in connection
with the consummation of the Merger, the parties to the Prior Agreement desire to amend and restate the Prior Agreement in its entirety
as set forth herein, and the parties hereto desire to enter into this Agreement pursuant to which the Company shall grant the Holders
certain registration rights with respect to the Registrable Securities (as defined below) on the terms and conditions set forth in this
Agreement, effective as of the Closing; and
WHEREAS, pursuant
to Section 5.5 of the Prior Agreement, no amendment, modification or termination of the Prior Agreement shall be binding
upon any party unless executed in writing by such party.
NOW, THEREFORE,
in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Terms used, but not otherwise defined, shall have the meaning ascribed to them in the Merger Agreement. The terms defined in this Article
I shall, for all purposes of this Agreement, have the respective meanings set forth below:
“Adverse Disclosure”
shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Chief Executive
Officer or Chief Financial Officer of the Company, after consultation with counsel to the Company, (i) would be required to be made in
any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement
of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case of any prospectus
and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would not be required
to be made at such time if the Registration Statement were not being filed, declared effective or used, as the case may be, and (iii)
the Company has a bona fide business purpose for not making such information public.
“Agreement”
shall have the meaning given in the Preamble.
“Block Trade”
shall mean an offering and/or sale of Registrable Securities by any Holder on a block trade or underwritten basis (whether firm commitment
or otherwise) without substantial marketing efforts prior to pricing, including, without limitation, a same day trade, overnight trade
or similar transaction.
“Board”
shall mean the Board of Directors of the Company.
“Change
in Control” shall mean any transfer (whether by tender offer, merger, stock purchase, consolidation or other similar transaction),
in one transaction or a series of related transactions, to a person or group of affiliated persons of the Company’s voting securities
if, after such transfer, such person or group of affiliated persons would hold more than 50% of outstanding voting securities of the Company
(or surviving entity) or would otherwise have the power to control the Board or to direct the operations of the Company.
“Code”
shall have the meaning given in subsection 4.2.13.
“Commission”
shall mean the Securities and Exchange Commission.
“Common Stock”
shall have the meaning given in the Recitals.
“Company”
shall have the meaning given in the Preamble.
“Demand Registration”
shall have the meaning given in subsection 2.1.1.
“Demanding Holder”
shall have the meaning given in subsection 2.1.1.
“EDGAR”
shall have the meaning given in subsection 3.1.3.
“Exchange Act”
shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.
“Form S-1”
shall have the meaning given in subsection 2.1.1.
“Form S-3”
shall have the meaning given in subsection 2.3.
“Founder Shares”
shall mean the 1,650,000 shares of ordinary shares of the Company, which subsequently converted into 1,650,000 shares of Common Stock,
issued to its initial stockholders prior to the Company’s initial public offering.
“Holder Information”
shall have the meaning given in subsection 5.1.2.
“Holders”
shall have the meaning given in the Preamble, for so long as such person or entity holds any Registrable Securities.
“Legacy Citius
Oncology” shall have the meaning given in the Recitals.
“Lock-up”
shall have the meaning given in Section 4.1.
“Lock-up Party”
shall have the meaning given in Section 4.1.
“Lock-up Period”
shall have the meaning given in Section 4.1.
“Maximum Number
of Securities” shall have the meaning given in subsection 2.1.4.
“Merger”
shall have the meaning given in the Recitals.
“Merger Agreement”
shall have the meaning given in the Recitals.
“Merger Shares”
shall have the meaning given in the Recitals.
“Merger Sub”
shall have the meaning given in the Recitals.
“Misstatement”
shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement
or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus (in the case of a Prospectus, in the light
of the circumstances under which they were made) not misleading.
“Permitted Transferees”
shall mean a person or entity to whom a Holder of Registrable Securities is permitted to transfer such Registrable Securities prior to
the expiration of the Lock-up Period under this Agreement, and any other applicable agreement between such Holder and the Company, and
to any transferee thereafter.
“Piggyback Registration”
shall have the meaning given in subsection 2.2.1.
“Prior Agreement”
shall have the meaning given in the Recitals.
“Private Placement
Rights” shall mean the 394,000 rights to receive two-tenths (2/10) of one ordinary share issued by the Company that were
part of the Private Placement Units which (i) subsequently converted into a right to receive two-tenths (2/10) of a share of Common Stock
in connection with the Domestication and in accordance with the Merger Agreement and (ii) were automatically converted into whole shares
of Common Stock at the Closing.
“Private Placement
Shares” shall mean the 394,000 ordinary shares issued by the Company as part of the Private Placement Units and which subsequently
converted into 394,000 shares of Common Stock in connection with the Domestication.
“Private Placement
Units” shall mean the 394,000 units issued by the Company that were privately purchased simultaneously with the consummation
of the Company’s initial public offering and for which each unit was comprised of one Private Placement Share and one Private Placement
Right.
“Pro Rata”
shall have the meaning given in subsection 2.1.4.
“Prospectus”
shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended
by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
“Registrable
Security” shall mean (a) the Merger Shares, (b) the Founder Shares, (c) the shares of Common Stock issued upon the
conversion of the Private Placement Rights at the Closing,2 (d) the Private Placement Shares, (e) any outstanding Common
Stock or any other equity security (including the shares of Common Stock issued or issuable upon the exercise of any other equity security)
of the Company held by a Holder as of the date of this Agreement, (f) any equity securities (including the Common Stock issued or issuable
upon the exercise of any such equity security) of the Company issuable upon conversion of any working capital loans in an amount up to
$1,500,000 made to the Company by a Holder, and (g) any other equity security of the Company issued or issuable with respect to any such
Common Stock by way of a share dividend or share split or in connection with a combination of shares, recapitalization, merger, consolidation
or reorganization; provided, however, that, as to any particular Registrable Security, such securities shall cease
to be Registrable Securities upon the earliest to occur of: (A) a Registration Statement with respect to the sale of such securities shall
have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance
with such Registration Statement; (B) such securities shall have been otherwise transferred (other than to a Permitted Transferee), new
certificates for such securities not bearing (or book entry positions not subject to) a legend restricting further transfer shall have
been delivered by the Company and subsequent public distribution of such securities shall not require registration under the Securities
Act; (C) such securities shall have ceased to be outstanding; (D) such securities may be sold without registration pursuant to Rule 144
promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission) (but with no volume or other restrictions
or limitations); or (E) such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other
public securities transaction.
“Registration”
shall mean a registration effected by preparing and filing a registration statement or similar document in compliance with the requirements
of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
“Registration
Expenses” shall mean the out-of-pocket expenses of a Registration, including, without limitation, the following:
(A) all registration and
filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.) and any
securities exchange on which the Common Stock is then listed;
(B) fees and expenses of
compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel for the Underwriters in connection
with blue sky qualifications of Registrable Securities);
(C) printing, messenger,
telephone and delivery expenses;
(D) reasonable fees and disbursements
of counsel for the Company;
(E) reasonable fees and disbursements
of all independent registered public accountants of the Company incurred specifically in connection with such Registration; and
(F) in an Underwritten Offering,
reasonable fees and expenses of one (1) legal counsel selected by the majority-in-interest of the Demanding Holders (not to exceed $50,000
without prior written consent of the Company).
“Registration
Statement” shall mean any registration statement filed by the Company with the Commission that covers the Registrable Securities
pursuant to the provisions of this Agreement, including the Prospectus included in such registration statement, amendments (including
post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference
in such registration statement.
“Regulations”
shall have the meaning given in subsection 4.2.13.
“Requesting Holder”
shall have the meaning given in subsection 2.1.1.
“Securities Act”
shall mean the Securities Act of 1933, as amended from time to time.
“Shelf”
shall mean the Form S-1 Shelf, the Form S-3 Shelf or any subsequent Shelf Registration.
“Shelf Registration”
shall mean a shelf registration of securities pursuant to a Registration Statement on Form S-1 or Form S-3 filed with the Commission in
accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect).
“Sponsor Equityholders”
shall have the meaning given in the Preamble.
“Transfer”
shall mean the (a) the sale or assignment of, offer to sell, contract or agreement to sell, grant of any option to purchase or otherwise
dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation
with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any security,
(b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership
of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) public announcement
of any intention to effect any transaction specified in clause (a) or (b).
“Underwriter”
shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such
dealer’s market-making activities.
“Underwritten
Registration” or “Underwritten Offering” shall mean a Registration in which securities of the
Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.
ARTICLE II
REGISTRATIONS
2.1 Demand Registration.
2.1.1 Request for
Registration. Subject to the provisions of subsection 2.1.4 and Section 2.4 hereof, the Holders
of at least a majority in interest of the then-outstanding number of Registrable Securities (the “Demanding Holders”)
may make a written demand for Registration under the Securities Act of all or part of their Registrable Securities, which written demand
shall describe the amount and type of securities to be included in such Registration and the intended method(s) of distribution thereof
(such written demand a “Demand Registration”). The Company shall, within ten (10) days of the Company’s
receipt of the Demand Registration, notify, in writing, all other Holders of Registrable Securities of such demand, and each Holder of
Registrable Securities who thereafter wishes to include all or a portion of such Holder’s Registrable Securities in a Registration
pursuant to a Demand Registration (each such Holder that includes all or a portion of such Holder’s Registrable Securities in such
Registration, a “Requesting Holder”) shall so notify the Company, in writing, within five (5) days after the
receipt by the Holder of the notice from the Company. Upon receipt by the Company of any such written notification from a Requesting Holder(s)
to the Company, such Requesting Holder(s) shall be entitled to have their Registrable Securities included in a Registration pursuant to
a Demand Registration and the Company shall effect, as soon thereafter as practicable, but not more than sixty (60) days immediately after
the Company’s receipt of the Demand Registration, the Registration of all Registrable Securities requested by the Demanding Holders
and Requesting Holders pursuant to such Demand Registration.
2.1.2 Effective Registration.
Notwithstanding the provisions of subsection 2.1.1 above or any other part of this Agreement, a Registration pursuant
to a Demand Registration shall not count as a Registration unless and until (i) the Registration Statement filed with the Commission with
respect to a Registration pursuant to a Demand Registration has been declared effective by the Commission and (ii) the Company has complied
with all of its obligations under this Agreement with respect thereto; provided, further, that if, within six
months after such Registration Statement has been declared effective, an offering of Registrable Securities in a Registration pursuant
to a Demand Registration is subsequently interfered with by any stop order or injunction of the Commission, federal or state court or
any other governmental agency the Registration Statement with respect to such Registration shall be deemed not to have been declared effective,
unless and until, (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of
the Demanding Holders initiating such Demand Registration thereafter affirmatively elect to continue with such Registration and accordingly
notify the Company in writing, but in no event later than five (5) days, of such election; and provided, further,
that the Company shall not be obligated or required to file another Registration Statement until the Registration Statement that has been
previously filed with respect to a Registration pursuant to a Demand Registration becomes effective or is subsequently terminated.
2.1.3 Underwritten
Offering. Subject to the provisions of subsection 2.1.4 and Section 2.4 hereof, if a majority-in-interest
of the Demanding Holders so advise the Company as part of their Demand Registration that the offering of the Registrable Securities pursuant
to such Demand Registration shall be in the form of an Underwritten Offering, then the right of such Demanding Holder or Requesting Holder
(if any) to include its Registrable Securities in such Registration shall be conditioned upon such Holder’s participation in such
Underwritten Offering and the inclusion of such Holder’s Registrable Securities in such Underwritten Offering to the extent provided
herein. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this subsection
2.1.3 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering
by the majority-in-interest of the Demanding Holders initiating the Demand Registration.
2.1.4 Reduction of
Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Registration pursuant to a Demand Registration,
in good faith, advises the Company, the Demanding Holders and the Requesting Holders (if any) in writing that the dollar amount or number
of Registrable Securities that the Demanding Holders and the Requesting Holders (if any) desire to sell, taken together with all other
shares of Common Stock or other equity securities that the Company desires to sell and shares of Common Stock, if any, as to which a Registration
has been requested pursuant to separate written contractual piggy-back registration rights held by any other stockholders who desire to
sell, exceeds the maximum dollar amount or maximum number of equity securities that can be sold in the Underwritten Offering without adversely
affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum
dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then
the Company shall include in such Underwritten Offering, as follows: (i) first, the Registrable Securities of the Demanding Holders and
the Requesting Holders (if any) (pro rata based on the respective number of Registrable Securities that each Demanding Holder and Requesting
Holder (if any) has requested be included in such Underwritten Registration and the aggregate number of Registrable Securities that the
Demanding Holders and Requesting Holders have requested be included in such Underwritten Registration (such proportion is referred to
herein as “Pro Rata”)) that can be sold without exceeding the Maximum Number of Securities; (ii) second, to
the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), the Registrable Securities of Holders
(Pro Rata, based on the respective number of Registrable Securities that each Holder has so requested) exercising their rights to register
their Registrable Securities pursuant to subsection 2.2.1 hereof, without exceeding the Maximum Number of Securities;
(iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the shares
of Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of
Securities; and (iv) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i),
(ii) and (iii), the Common Stock or other equity securities of other persons or entities that the Company is obligated to register in
a Registration pursuant to separate written contractual arrangements with such persons and that can be sold without exceeding the Maximum
Number of Securities.
2.1.5 Demand Registration
Withdrawal. A majority-in-interest of the Demanding Holders initiating a Demand Registration or a majority-in-interest of the Requesting
Holders (if any), pursuant to a Registration under subsection 2.1.1 shall have the right to withdraw from a Registration
pursuant to such Demand Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters
(if any) of their intention to withdraw from such Registration prior to the effectiveness of the Registration Statement filed with the
Commission with respect to the Registration of their Registrable Securities pursuant to such Demand Registration. Notwithstanding anything
to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Registration
pursuant to a Demand Registration as provided in Section 3.3 prior to its withdrawal under this subsection 2.1.5.
If withdrawn, a Demand Registration shall constitute a demand for an Underwritten Offering by the withdrawing Demanding Holder for purposes
of Section 2.1.1.
2.2 Piggyback Registration.
2.2.1 Piggyback Rights.
If the Company proposes to file a Registration Statement under the Securities Act with respect to an offering of equity securities, or
securities or other obligations exercisable or exchangeable for, or convertible into equity securities, for its own account or for the
account of stockholders of the Company (or by the Company and by the stockholders of the Company including, without limitation, pursuant
to Section 2.1 hereof), other than a Registration Statement (i) filed in connection with any employee stock option or
other benefit plan, (ii) for an exchange offer or offering of securities solely to the Company’s existing stockholders, (iii) for
an offering of debt that is convertible into equity securities of the Company, (iv) pursuant to a Registration Statement on Form S-4 (or
similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), (v) for a dividend
reinvestment plan, or (vi) for a Block Trade, then the Company shall give written notice of such proposed filing to all of the Holders
of Registrable Securities as soon as practicable but not less than ten (10) days before the anticipated filing date of such Registration
Statement or, in the case of an Underwritten Offering pursuant to a Shelf Registration, the applicable “red herring” prospectus
or prospectus supplement used for marketing such offering, which notice shall (A) describe the amount and type of securities to be included
in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, in
such offering, and (B) offer to all of the Holders of Registrable Securities the opportunity to register the sale of such number of Registrable
Securities as such Holders may request in writing within five (5) days after receipt of such written notice (such Registration a “Piggyback
Registration”). Subject to Section 2.2.2, the Company shall, in good faith, cause such Registrable Securities
to be included in such Piggyback Registration and, if applicable, shall use its commercially reasonable efforts to cause the managing
Underwriter or Underwriters of a proposed Underwritten Offering to permit the Registrable Securities requested by the Holders pursuant
to this subsection 2.2.1 to be included in a Piggyback Registration on the same terms and conditions as any similar securities
of the Company included in such Registration and to permit the sale or other disposition of such Registrable Securities in accordance
with the intended method(s) of distribution thereof. All such Holders proposing to distribute their Registrable Securities through an
Underwritten Offering under this subsection 2.2.1 shall enter into an underwriting agreement in customary form with the
Underwriter(s) selected for such Underwritten Offering by the Company.
2.2.2 Reduction of
Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten Registration that is to be a Piggyback Registration,
in good faith, advises the Company and the Holders of Registrable Securities participating in the Piggyback Registration in writing that
the dollar amount or number of the shares of Common Stock or other equity securities that the Company desires to sell, taken together
with (i) the shares of Common Stock or other equity securities, if any, as to which Registration has been demanded pursuant to separate
written contractual arrangements with persons or entities other than the Holders of Registrable Securities hereunder, (ii) the Registrable
Securities as to which registration has been requested pursuant to Section 2.2 hereof, and (iii) the shares of Common
Stock or other equity securities, if any, as to which Registration has been requested pursuant to separate written contractual piggy-back
registration rights of other stockholders of the Company, exceeds the Maximum Number of Securities, then:
(a) If the Registration is undertaken
for the Company’s account, the Company shall include in any such Registration (A) first, the shares of Common Stock or other equity
securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the
extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders
exercising their rights to register their Registrable Securities pursuant to subsection 2.2.1 hereof, Pro Rata, which
can be sold without exceeding the Maximum Number of Securities; and (C) third, to the extent that the Maximum Number of Securities has
not been reached under the foregoing clauses (A) and (B), the shares of Common Stock or other equity securities, if any, as to which Registration
has been requested pursuant to written contractual piggy-back registration rights of other stockholders of the Company, which can be sold
without exceeding the Maximum Number of Securities;
(b) If the Registration is pursuant
to a request by persons or entities other than the Holders of Registrable Securities, then the Company shall include in any such Registration
(A) first, the shares of Common Stock or other equity securities, if any, of such requesting persons or entities, other than the Holders
of Registrable Securities, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum
Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights
to register their Registrable Securities pursuant to subsection 2.2.1, pro rata based on the number of Registrable Securities
that each Holder has requested be included in such Underwritten Registration and the aggregate number of Registrable Securities that the
Holders have requested to be included in such Underwritten Registration, which can be sold without exceeding the Maximum Number of Securities;
(C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the shares
of Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of
Securities; and (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A),
(B) and (C), the shares of Common Stock or other equity securities for the account of other persons or entities that the Company is obligated
to register pursuant to separate written contractual arrangements with such persons or entities, which can be sold without exceeding the
Maximum Number of Securities.
2.2.3 Piggyback Registration
Withdrawal. Any Holder of Registrable Securities shall have the right to withdraw from a Piggyback Registration for any or no reason
whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw
from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to such
Piggyback Registration or, in the case of a Piggyback Registration pursuant to a Shelf Registration, the filing of the applicable “red
herring” prospectus or prospectus supplement with respect to such Piggyback Registration used for marketing such transaction. The
Company (whether on its own good faith determination or as the result of a request for withdrawal by persons pursuant to separate written
contractual obligations) may withdraw or abandon a Registration Statement filed with the Commission or Shelf takedown in connection with
a Piggyback Registration at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary
in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration
as provided in Section 3.2 prior to its withdrawal under this subsection 2.2.3.
2.2.4 Limitations
on Registration Rights. Under no circumstances shall the Company be obligated to effect more than an aggregate of three (3) Registrations
pursuant to a Demand Registration under Section 2.1 with respect to any or all Registrable Securities, provided that
a Piggyback Registration under this Section 2.2 shall not be counted as a Registration pursuant to a Demand Registration
effected under Section 2.1.
2.3 Registrations
on Form S-3. The Holders of Registrable Securities may at any time, and from time to time, request in writing that the Company, pursuant
to Rule 415 under the Securities Act (or any successor rule promulgated thereafter by the Commission), register the resale of any or all
of their Registrable Securities on Form S-3 or any similar short form registration statement that may be available at such time (“Form
S-3”); provided, however, that the Company shall not be obligated to effect such request through
an Underwritten Offering. Within five (5) days of the Company’s receipt of a written request from a Holder or Holders of Registrable
Securities for a Registration on Form S-3, the Company shall promptly give written notice of the proposed Registration on Form S-3 to
all other Holders of Registrable Securities, and each Holder of Registrable Securities who thereafter wishes to include all or a portion
of such Holder’s Registrable Securities in such Registration on Form S-3 shall so notify the Company, in writing, within ten (10)
days after the receipt by the Holder of the notice from the Company. As soon as practicable thereafter, but not more than sixty (60) days
after the Company’s initial receipt of such written request for a Registration on Form S-3, the Company shall register all or such
portion of such Holder’s Registrable Securities as are specified in such written request, together with all or such portion of Registrable
Securities of any other Holder or Holders joining in such request as are specified in the written notification given by such Holder or
Holders; provided, however, that the Company shall not be obligated to effect any such Registration pursuant to Section
2.3 hereof if (i) a Form S-3 is not available for such offering; or (ii) the Holders of Registrable Securities, together with
the Holders of any other equity securities of the Company entitled to inclusion in such Registration, propose to sell the Registrable
Securities and such other equity securities (if any) at any aggregate price to the public of less than $10,000,000.
2.4 Restrictions
on Registration Rights. If (A) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate
of the date of the filing of, and ending on a date one hundred and twenty (120) days after the effective date of, a Company initiated
Registration and provided that the Company has delivered written notice to the Holders prior to receipt of a Demand Registration pursuant
to subsection 2.1.1 and it continues to actively employ, in good faith, all commercially reasonable efforts to cause
the applicable Registration Statement to become effective; (B) the Holders have requested an Underwritten Registration and the Company
and the Holders are unable to obtain the commitment of underwriters to firmly underwrite the offer; or (C) in the good faith judgment
of the Board such Registration would be seriously detrimental to the Company and the Board concludes as a result that it is essential
to defer the filing of such Registration Statement at such time, then in each case the Company shall furnish to such Holders a certificate
signed by the Chairman of the Board stating that in the good faith judgment of the Board it would be seriously detrimental to the Company
for such Registration Statement to be filed in the near future and that it is therefore essential to defer the filing of such Registration
Statement. In such event, the Company shall have the right to defer such filing for a period of not more than ninety (90) days.
ARTICLE III
COMPANY PROCEDURES
3.1 General Procedures.
If the Company is required to effect the Registration of Registrable Securities pursuant to this Agreement, the Company shall use its
commercially reasonable efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended
plan of distribution thereof, and pursuant thereto the Company shall:
3.1.1 prepare and file with
the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its commercially reasonable
efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such
Registration Statement have been sold or have ceased to be Registrable Securities;
3.1.2 prepare and file with
the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as
may be reasonably requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations
or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to
keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance
with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or have ceased to be Registrable
Securities;
3.1.3 not later than five
(5) days prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the
Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel,
copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case
including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement
(including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included
in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such holders, provided, that the Company shall have no obligation to furnish any documents publicly filed or furnished
with the Commission pursuant to the Electronic Data Gathering Analysis and Retrieval System (“EDGAR”);
3.1.4 prior to any public
offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered
by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders
of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide
evidence reasonably satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and
(ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved
by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all
other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration
Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however,
that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required
to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it
is not then otherwise so subject;
3.1.5 use its commercially
reasonable efforts to cause all such Registrable Securities included in any registration to be listed on such exchanges or otherwise designated
for trading in the same manner as similar securities issued by the Company are then listed or designated or, if no such similar securities
are then listed or designated, in a manner satisfactory to the holders of a majority-in-interest of the Registrable Securities included
in such registration;
3.1.6 provide a transfer
agent as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller
of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order
by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such
purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if
such stop order should be issued;
3.1.8 notify the Holders
at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening
of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement,
and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.9 permit a representative
of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney
or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the
Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested
by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however,
that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the
Company, prior to the release or disclosure of any such information;
3.1.10 obtain a “comfort”
letter from the Company’s independent registered public accountants in the event of an Underwritten Registration which the participating
Holders may rely on, in customary form and covering such matters of the type customarily covered by “comfort” letters for
transactions of its type as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of
the participating Holders;
3.1.11 on the date the Registrable
Securities are delivered for sale pursuant to such Registration, to the extent customary for a transaction of its type, obtain an opinion,
dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent
or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which
such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily
included in such opinions and negative assurance letters;
3.1.12 in the event of any
Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing
Underwriter of such offering;
3.1.13 make available to
its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning
with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter
by the Commission), and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information
on Forms 10-Q, 10-K or 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act;
3.1.14 if the Registration
involves the Registration of Registrable Securities involving gross proceeds in excess of $60,000,000, use its commercially reasonable
efforts to make available senior executives of the Company to participate in customary “road show” presentations that may
be reasonably requested by the Underwriter in such Underwritten Offering; and
3.1.15 otherwise, in good
faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, consistent with the terms
of this Agreement, in connection with such Registration.
Notwithstanding the foregoing,
the Company shall not be required to provide any documents or information to an Underwriter, broker, sales agent or placement agent if
such Underwriter, broker, sales agent or placement agent has not then been named with respect to the applicable Underwritten Offering
or other offering involving a Registration as an Underwriter, broker, sales agent or placement agent, as applicable.
3.2 Registration
Expenses. Except as otherwise provided herein, the Registration Expenses of all Registrations shall be borne by the Company. It is
acknowledged by the Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities,
such as Underwriters’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth in the
definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing the Holders.
3.3 Requirements
for Participation in Underwritten Offerings. Notwithstanding anything in this Agreement to the contrary, if any Holder does not provide
the Company with its requested Holder Information, the Company may exclude such Holder’s Registrable Securities from the applicable
Registration Statement or Prospectus if the Company determines, based on the advice of counsel, that it is necessary or advisable to review
such information prior to filing, or include such information in, the applicable Registration Statement or Prospectus and such Holder
continues thereafter to withhold such information. In addition, no person may participate in any Underwritten Offering for equity securities
of the Company pursuant to a Registration initiated by the Company hereunder unless such person (i) agrees to sell such person’s
securities on the basis provided in any underwriting arrangements approved by the Company and (ii) completes and executes all customary
questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting agreements and other customary documents as may be reasonably
required under the terms of such underwriting arrangements.
3.4 Suspension of
Sales; Adverse Disclosure. Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a
Misstatement, each of the Holders shall forthwith discontinue disposition of Registrable Securities until it has received copies of a
supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants to prepare and file
such supplement or amendment as soon as reasonably practicable after the time of such notice), or until it is advised in writing by the
Company that the use of the Prospectus may be resumed. If the filing, initial effectiveness or continued use of a Registration Statement
in respect of any Registration at any time would (a) require the Company to make an Adverse Disclosure, (b) require the inclusion in such
Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control, or
(c) in the good faith judgment of the majority of the Board such Registration, would be seriously detrimental to the Company and the majority
of the Board concludes as a result that it is essential to defer such filing, initial effectiveness or continued use at such time, the
Company may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend
use of, such Registration Statement for the shortest period of time reasonably practicable, but in no event more than ninety (90) days,
determined in good faith by the Company to be necessary for such purpose. In the event the Company exercises its rights under the preceding
sentence, the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating
to any Registration in connection with any sale or offer to sell Registrable Securities until such Holder receives written notice from
the Company that such sales or offers of Registrable Securities may be resumed, and in each case maintain the confidentiality of such
notice and its contents. The Company shall as promptly as reasonably practicable notify the Holders of the expiration of any period during
which it exercised its rights under this Section 3.4.
3.5 Reporting Obligations.
As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange
Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required
to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange
Act and to promptly furnish the Holders with true and complete copies of all such filings; provided that any documents publicly filed
or furnished with the Commission pursuant to EDGAR shall be deemed to have been furnished or delivered to the Holders pursuant to this Section
3.5. The Company further covenants that it shall take such further action as any Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell shares of Common Stock held by such Holder without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act (or any successor rule promulgated
thereafter by the Commission), including providing any legal opinions. Upon the request of any Holder, the Company shall deliver to such
Holder a written certification of a duly authorized officer as to whether it has complied with such requirements.
ARTICLE IV
LOCK-UP
4.1 Lock-up.
4.1.1 Except as permitted
by Section 4.2, the Legacy Citius Oncology Equityholder and each Sponsor Equityholder (each, a “Lock-up Party”)
shall not Transfer any shares of Common Stock or any security convertible into or exercisable or exchanged for Common Stock
beneficially owned or owned of record by such Holder (the “Lock-up”) until the date that is the earlier of (A)
six (6) months after the date hereof or (B) if the last sale price of the Common Stock equals or exceeds $12.00 per share (as adjusted
for share splits, share capitalizations, rights issuances, subdivisions, reorganizations, recapitalizations and the like) for any 20 trading
days within any 30-trading day period commencing at least 150 days after the date hereof, or (y) the date following the date hereof on
which the Company completes a liquidation, merger, share exchange, reorganization or other similar transaction that results in all of
its stockholders having the right to exchange their shares of Common Stock for cash, securities or other property (the “Lock-up Period”).
4.2 Exceptions.
The provisions of Section 4.1 shall not apply to:
4.2.1 transactions relating
to shares of Common Stock or warrants acquired in open market transactions after the date hereof;
4.2.2 Transfers of shares
of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock as a bona fide gift or charitable contribution;
4.2.3 Transfers of shares
of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to a trust, family limited partnership
or other entity formed for estate planning purposes for the primary benefit of the spouse, domestic partner, parent, sibling, child or
grandchild of a Holder or any other person with whom a Holder has a relationship by blood, marriage or adoption not more remote than first
cousin and Transfers to any such family member;
4.2.4 Transfers of shares
of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock by will or intestate succession or the
laws of descent and distributions upon the death of a Holder (it being understood and agreed that the appointment of one or more executors,
administrators or personal representatives of the estate of a Holder shall not be deemed a Transfer hereunder to the extent
that such executors, administrators and/or personal representatives comply with the terms of this Article IV on
behalf of such estate);
4.2.5 Transfers of shares
of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock pursuant to a qualified domestic order
or in connection with a divorce settlement;
4.2.6 if a Holder is a corporation,
partnership (whether general, limited or otherwise), limited liability company, trust or other business entity, (i) Transfers of shares
of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to another corporation, partnership,
limited liability company, trust or other business entity that controls, is controlled by or is under common control or management with
a Holder (including, for the avoidance of doubt, where such Holder is a partnership, to its general partner or a successor partnership
or fund, or any other funds managed by such partnership), or (ii) Transfers of shares of Common Stock or any security convertible into
or exercisable or exchangeable for Common Stock as part of a dividend, distribution, transfer or other disposition of shares of Common
Stock to partners, limited liability company members, direct or indirect stockholders or other equity holders of a Holder, including,
for the avoidance of doubt, where such Holder is a partnership, to its general partner or a successor partnership, fund or investment
vehicle, or any other partnerships, funds or investment vehicles controlled or managed by such partnership;
4.2.7 if the Holder is a
trust, Transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to a trustor
or beneficiary of such trust or to the estate of a beneficiary of such trust;
4.2.8 Transfers of shares
of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to the Company’s or the Holder’s
officers, directors, members, consultants or their affiliates;
4.2.9 pledges of shares of
Common Stock or any security convertible into or exercisable or exchangeable for Common Stock as security or collateral in connection
with any borrowing or the incurrence of any indebtedness by any Holder (provided such borrowing or incurrence of indebtedness is secured
by a portfolio of assets or equity interests issued by multiple issuers);
4.2.10 Transfers of shares
of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock pursuant to a bona fide third-party
tender offer, merger, asset acquisition, stock sale, recapitalization, consolidation, business combination or other transaction or series
of related transactions involving a Change in Control of the Company, provided that in the event that such tender offer, merger,
asset acquisition, stock sale, recapitalization, consolidation, business combination or other such transaction is not completed, the securities
subject to this Agreement shall remain subject to this Agreement;
4.2.11 Transfers of shares
of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to the Company in connection with the
liquidation or dissolution of the Company by virtue of the laws of the state of the Company’s organization and the Company’s
organizational documents;
4.2.12 the establishment
of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide
for the Transfer of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock
during the Lock-up Period; and
4.2.13 Transfers of shares
of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to satisfy any U.S. federal, state, or
local income tax obligations of the Lock-up Party (or its direct or indirect owners) arising from a change in the U.S. Internal
Revenue Code of 1986, as amended (the “Code”), or the U.S. Treasury Regulations promulgated thereunder (the
“Regulations”) after the date on which the Merger Agreement was executed by the parties, and such change prevents
the Merger from qualifying as a “reorganization” pursuant to Section 368 of the Code (and the Merger does not qualify for
similar tax-free treatment pursuant to any successor or other provision of the Code or Regulations taking into account such
changes), in each case solely and to the extent necessary to cover any tax liability as a direct result of the transaction; and
4.2.14 to the extent a waiver
from the Lock-up is required in order for the Company to meet the applicable Nasdaq initial or continued listing rules with respect to
the minimum number of unrestricted round lot holders, as determined by the Company in good faith.
4.3 Null and Void.
If any Transfer of shares of Common Stock prior to the end of the Lock-up Period is made or attempted contrary to
the provisions of this Agreement, such purported Transfer shall be null and void ab initio, and the Company shall
refuse to recognize any such purported transferee as one of its equityholders for any purpose.
ARTICLE V
INDEMNIFICATION AND CONTRIBUTION
5.1 Indemnification.
5.1.1 The Company agrees
to indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers and directors and each person who controls
such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and out-of-pocket expenses (including
actual, reasonable and documented attorneys’ fees) caused by any untrue or alleged untrue statement of material fact contained in
any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as
the same are caused by or contained in any information furnished in writing to the Company by such Holder expressly for use therein. The
Company shall indemnify the Underwriters, their officers and directors and each person who controls such Underwriters (within the meaning
of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Holder.
5.1.2 In connection with
any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to the Company in writing
such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus
(the “Holder Information”) and, to the extent permitted by law, shall indemnify the Company, its directors and
officers and agents and each person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages,
liabilities and out-of-pocket expenses (including without limitation actual, reasonable and documented attorneys’ fees) resulting
from any untrue or alleged untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus
or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent that such untrue statement is contained in (or not contained
in, in the case of an omission) any information or affidavit so furnished in writing by such Holder expressly for use therein; provided, however,
that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability
of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the
sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters,
their officers, directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent
as provided in the foregoing with respect to indemnification of the Company.
5.1.3 Any person entitled
to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification
(provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent
such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment
a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying
party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such
consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim
shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with
respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified
party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money
(and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation.
5.1.4 The indemnification
provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified
party or any officer, director or controlling person of such indemnified party and shall survive the transfer of securities. The Company
and each Holder of Registrable Securities participating in an offering also agrees to make such provisions as are reasonably requested
by any indemnified party for contribution to such party in the event the Company’s or such Holder’s indemnification is unavailable
for any reason.
5.1.5 If the indemnification
provided under Section 5.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities and out-of-pocket expenses referred to herein, then the indemnifying party,
in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of
such losses, claims, damages, liabilities and out-of-pocket expenses in such proportion as is appropriate to reflect the relative fault
of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the
indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including
any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (or not
made by, in the case of an omission), or relates to information supplied by (or not supplied by, in the case of an omission), such indemnifying
party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information
and opportunity to correct or prevent such action; provided, however, that the liability of any Holder under this subsection
5.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability.
The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject
to the limitations set forth in subsections 5.1.1, 5.1.2 and 5.1.3 above, any legal or other
fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree
that it would not be just and equitable if contribution pursuant to this subsection 5.1.5 were determined by pro rata
allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this subsection
5.1.5. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution pursuant to this subsection 5.1.5 from any person who was not guilty of such fraudulent
misrepresentation.
ARTICLE VI
MISCELLANEOUS
6.1 Notices.
Any notice or communication under this Agreement must be in writing and given by (i) deposit in the United States mail, addressed to the
party to be notified, postage prepaid and registered or certified with return receipt requested, (ii) delivery in person or by courier
service providing evidence of delivery, or (iii) transmission by hand delivery, electronic mail, telecopy, telegram or facsimile. Each
notice or communication that is mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given, served,
sent, and received, in the case of mailed notices, on the third business day following the date on which it is mailed and, in the case
of notices delivered by courier service, hand delivery, electronic mail, telecopy, telegram or facsimile, at such time as it is delivered
to the addressee or at such time as delivery is refused by the addressee upon presentation. Any notice or communication under this Agreement
must be addressed, if to the Company, to: 11 Commerce Drive, First Floor Cranford, NJ 07016, and, if to any Holder, at such Holder’s
address or facsimile number as set forth in the Company’s books and records. Any party may change its address for notice at any
time and from time to time by written notice to the other parties hereto, and such change of address shall become effective thirty (30)
days after delivery of such notice as provided in this Section 6.1.
6.2 Assignment; No
Third Party Beneficiaries.
6.2.1 This Agreement and
the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part.
6.2.2 Prior to the expiration
of the Lock-up Period, no Holder may assign or delegate such Holder’s rights, duties or obligations under this Agreement, in whole
or in part, except in connection with a transfer of Registrable Securities by such Holder to a Permitted Transferee but only if such Permitted
Transferee agrees to become bound by the transfer restrictions set forth in this Agreement.
6.2.3 This Agreement and
the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the permitted
assigns of the Holders, which shall include Permitted Transferees.
6.2.4 This Agreement shall
not confer any rights or benefits on any persons that are not parties hereto, other than as expressly set forth in this Agreement and Section
6.2 hereof.
6.2.5 No assignment by any
party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless and until
the Company shall have received (i) written notice of such assignment as provided in Section 6.1 hereof and (ii) the
written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement
(which may be accomplished by an addendum or certificate of joinder to this Agreement). Any transfer or assignment made other than as
provided in this Section 6.2 shall be null and void.
6.3 Counterparts.
This Agreement may be executed in multiple counterparts (including facsimile or PDF counterparts), each of which shall be deemed an original,
and all of which together shall constitute the same instrument, but only one of which need be produced.
6.4 Governing Law;
Venue. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT
(I) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE AS APPLIED TO AGREEMENTS AMONG DELAWARE
RESIDENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN DELAWARE, WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS OF SUCH JURISDICTION
AND (II) THE VENUE FOR ANY ACTION TAKEN WITH RESPECT TO THIS AGREEMENT SHALL BE THE COURT
OF CHANCERY OF THE STATE OF DELAWARE OR, IF UNDER APPLICABLE LAW, EXCLUSIVE JURISDICTION OVER SUCH MATTER IS VESTED IN THE FEDERAL COURTS,
ANY FEDERAL COURT IN THE STATE OF DELAWARE AND ANY APPELLATE COURT FROM ANY THEREOF.
6.5 Amendments and
Modifications. Upon the written consent of the Company and the Holders of at least a majority in interest of the Registrable Securities
at the time in question, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or
any of such provisions, covenants or conditions may be amended or modified; provided, however, that notwithstanding
the foregoing, any amendment hereto or waiver hereof that adversely affects one Holder, solely in its capacity as a holder of the shares
of the Company, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holder
so affected. No course of dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of
a Holder or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies
of any Holder or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as
a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party.
6.6 Other Registration
Rights. The Company represents and warrants that no person, other than a Holder of Registrable Securities, has any right to require
the Company to register any securities of the Company for sale or to include such securities of the Company in any Registration filed
by the Company for the sale of securities for its own account or for the account of any other person. Further, the Company represents
and warrants that this Agreement supersedes any other registration rights agreement or agreement with similar terms and conditions and
in the event of a conflict between any such agreement or agreements and this Agreement, the terms of this Agreement shall prevail.
6.7 Term. This
Agreement shall terminate upon the earlier of (i) the fifth (5th) anniversary of the date of this Agreement or (ii) the date
as of which (A) all of the Registrable Securities have been sold pursuant to a Registration Statement (but in no event prior to the applicable
period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder (or any successor rule promulgated thereafter by the
Commission)) or (B) the Holders of all Registrable Securities are permitted to sell the Registrable Securities under Rule 144 (or any
similar provision) under the Securities Act without limitation on the amount of securities sold or the manner of sale. The provisions
of Section 3.5 and Article V shall survive any termination.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be executed as of the date first written above.
COMPANY: |
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CITIUS ONCOLOGY, INC. |
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|
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By: |
/s/ Xiaofeng Yuan |
|
Name: |
Xiaofeng Yuan |
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Title: |
Chief Executive Officer and Chairman |
|
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SPONSOR EQUITYHOLDERS: |
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10XYZ HOLDINGS LP |
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By: |
/s/ Taylor Zhang |
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Name: |
Taylor Zhang on behalf of 10XYZ Management LLC as General Partner |
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INTELLIGENT INVESTMENTS I LLC |
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By: |
/s/ Mark Crone |
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Name: |
Mark Crone |
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Title: |
Managing Member |
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LEGACY CITIUS ONCOLOGY EQUITYHOLDER: |
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CITIUS PHARMACEUTICALS, INC. |
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By: |
/s/ Leonard Mazur |
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Name: |
Leonard Mazur |
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Title: |
Chief Executive Officer and Chairman of the Board |
|
[Signature Page to A&R
Registration Rights Agreement]
17
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