United States
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
July 21, 2023 (July 17, 2023)
REVELSTONE CAPITAL ACQUISITION CORP.
(Exact name of registrant as specified in its charter)
| Delaware |
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001-41178 |
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87-1511157 |
(State or other jurisdiction
of incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
14350 Myford Road
Irvine, CA 92606
(Address of principal executive offices, including
zip code)
(949) 751-7518
Registrant’s telephone number, including
area code:
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
| Title of each class |
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Trading Symbol(s) |
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Name of each exchange on which
registered |
| Units, each consisting of one share of Class A Common Stock and one-half of one Redeemable Warrant |
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RCACU |
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The Nasdaq Stock Market, LLC |
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| Class A Common Stock, par value $0.0001 per share |
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RCAC |
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The Nasdaq Stock Market, LLC |
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| Redeemable Warrants, each whole warrant exercisable for one share of Class A Common Stock for $11.50 per share |
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RCACW |
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The Nasdaq Stock Market, LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities
Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company x
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised
financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01 Entry into a Material Definitive Agreement
Merger Agreement
On July 17, 2023, Revelstone
Capital Acquisition Corp., a Delaware corporation (“Revelstone” or “Parent”), entered into a Merger
Agreement (the “Merger Agreement”) by and among Revelstone, Revelstone Capital Merger Sub, Inc., a Delaware corporation
and a wholly owned subsidiary of Revelstone (“Merger Sub”), Set Jet, Inc., a Nevada corporation (“SET
JET”) and Thomas P. Smith, as the Securityholder Representative. Pursuant to the terms of the Merger Agreement, a business combination
between Revelstone and SET JET will be effected through the merger of Merger Sub with and into SET JET, with SET JET surviving the merger
as a wholly owned subsidiary of Revelstone (the “Merger”). As part of the business combination, Revelstone will change its name to “Set Jet, Inc.” and continue trading on the Nasdaq
Stock Market, LLC. The board of directors of Revelstone has (i) approved
and declared advisable the Merger Agreement, the Additional Agreements and the transactions contemplated thereby and (ii) resolved
to recommend approval of the Merger Agreement and related transactions by the stockholders of Revelstone. Capitalized terms used but not
defined in this Current Report on Form 8-K shall have the respective meanings ascribed to such terms in the Merger Agreement.
The Merger is expected to
be consummated after obtaining the required approval by the stockholders of Revelstone and SET JET and the satisfaction of certain other
customary closing conditions.
The following description
of the Merger Agreement is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as
Exhibit 2.1 to this Current Report on Form 8-K, and incorporated herein by reference.
Merger Consideration; Earnout Consideration
The total consideration
to be paid at Closing (the “Merger Consideration”) or via earnout (the “Earnout
Consideration”) by Revelstone to SET JET security holders will be an amount up to $145 million, subject to adjustment,
based on the sum of (a) Merger Consideration paid at closing in an amount equal to $80 million (subject to adjustment based on
the Debt for Borrowed Money of the Company net of the Company’s Cash and Cash Equivalents at Closing) and (b) Earnout
Consideration of up to $65 million consisting of (i) up to $45 million to shareholders of SET JET pursuant to the Earnout
Escrow Agreement as described below and (ii) up to $20 million to certain executive officers and directors of the Combined
Company under the Retention Bonus Agreement described below. The Merger Consideration will be payable in (a) 5,703,000 shares
of Class A common stock, par value $0.0001 per share, of Revelstone (“Revelstone Common Stock”) at the
reference price of $10.00 per share (the “Reference Price”), subject to adjustment based on whether the Debt for Borrowed Money of the Company net of the
Company’s Cash and Cash Equivalents at Closing is greater than or less than $14,970,000 and (b) 800,000 shares of
Revelstone Common Stock at the Reference Price in exchange for the conversion of the Pre-PIPE Convertible Note.
Treatment of SET JET Securities
Cancellation of Securities
Each share of SET JET capital
stock, if any, that is owned by Revelstone, Merger Sub, SET JET, or any of their respective subsidiaries (as treasury stock or otherwise)
immediately prior to the effective time of the Merger (the “Effective Time”) will automatically be cancelled and retired
without any conversion or consideration.
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SET JET Capital Stock. Immediately prior to the Effective Time, each issued and outstanding share of SET JET’s common stock, par value $0.0001 per share (“SET JET Common Stock”) (other than any such shares of SET JET capital stock cancelled as described above and any dissenting shares) will be converted into the right to receive a number of shares of Revelstone Common Stock at the Conversion Ratio set forth in the Closing Consideration Spreadsheet with respect to such share of SET JET Common Stock. |
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“Merger Exchange Ratio” means the quotient obtained by dividing (a) the Closing Merger Consideration Shares by (b) the Fully Diluted Company Shares. |
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“Fully Diluted Company Shares” means the sum, without duplication, of (a) all shares of SET JET Common Stock that are issued and outstanding immediately prior to the Effective Time plus (b) subject to certain exceptions described in the Merger Agreement, all shares of SET JET Common Stock issuable upon conversion, exercise or exchange of any other in-the-money securities of SET JET convertible into or exchangeable or exercisable for shares of SET JET Common Stock. |
Merger Sub Securities
Each share of common stock,
par value $0.0001 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time will be converted into and become
one newly issued share of common stock of the surviving corporation of the Merger.
Treatment of Convertible
Notes
Each Converting Note that
is then held and remains outstanding immediately prior to the Effective Time shall be cancelled and converted into shares of SET JET Common
Stock, and such applicable shares of SET JET Common Stock shall be issued to the applicable Converting Noteholder.
The Pre-PIPE Convertible Note
in the amount of $4,000,000 issued on July 17, 2023 contemporaneously with the signing of the Merger Agreement and in advance of
the PIPE Financing, as described below, shall, at the Closing of the Business Combination, be cancelled and converted into the right to
receive 800,000 shares of Revelstone Common Stock (the “Pre-PIPE Conversion Shares”) and a ten-year warrant to purchase
400,000 shares of Revelstone Common Stock with an exercise price of $12.50 per share (the “Pre-Pipe Conversion Warrant”).
The $4 million will be paid in four monthly installments of $1 million, the first of which is due on July 31, 2023, then $1 million thereafter
by monthly payments due on August 28, 2023, September 25, 2023, and October 23, 2023.
Representations and Warranties
The Merger Agreement contains
customary representations and warranties of the parties thereto with respect to, among other things: (a) corporate existence and
power; (b) authorization to enter into the Merger Agreement and related transactions; (c) governmental authorization; (d) non-contravention;
(e) capitalization; (f) corporate records; (g) subsidiaries and minority investments as set forth in the Merger Agreement;
(h) consents; (i) financial statements; (j) books and records; (k) internal accounting controls; (l) absence
of certain changes; (m) properties; title to assets; (n) litigation; (o) contracts; (p) licenses and permits; (q) compliance
with laws; (r) intellectual property; (s) accounts payable; affiliate loans; (t) employee matters and benefits; (u) real
property; (v) tax matters; (w) environmental laws; (x) finders’ fees; (y) powers of attorney, suretyships and
bank accounts; (z) directors and officers; (aa) anti-money laundering laws; (ab) insurance; (ac) related party transactions; and
(ad) certain representations related to securities law and activity and not being an investment company. Revelstone has additional representations
and warranties, including (a) issuance of shares; (b) capitalization; (c) trust fund; (d) listing; (e) board
approval; (f) SEC documents and financial statements; (g) certain business practices; and (h) expenses, indebtedness and
other liabilities, and no one is in violation of any employment agreements and the Restrictive Covenant Agreements shall have been executed
Revelstone has delivered to SET JET true, correct and complete copies of each of the Subscription Agreements and the PIPE Registration
Rights Agreements entered into by Revelstone with the PIPE Investors.
Covenants
The Merger Agreement includes
customary covenants of the parties with respect to operation of their respective businesses prior to consummation of the Merger and efforts
to satisfy conditions to consummation of the Merger. The Merger Agreement also contains additional covenants of the parties, including,
among others, conduct of business, access to information, notice of certain events, keep current and timely file public filings with the
SEC and otherwise comply in all material respects with applicable securities Laws, and shall use its reasonable best efforts prior to
the Closing to maintain the listing of the Parent Units and the Parent Warrants on Nasdaq, cooperation in the preparation of the Form S-4
and Proxy Statement (as each such term is defined in the Merger Agreement) required to be filed in connection with the Merger and to obtain
all requisite approvals of each party’s respective stockholders. The Merger Agreement also contains additional covenants pertaining
to SET JET including reporting; compliance with laws; no insider trading; commercially reasonable efforts to obtain consents; SET JET
Stockholder approval; provide additional financial information; within thirty (30) days the date of the Merger Agreement, SET JET shall
use commercially reasonable efforts to obtain and deliver execute Lock-Up Agreements, Company Support Agreements and Voting Agreements
from shareholders of SET JET in addition to those provided as the signing of the Merger Agreement; amend parent charter; there shall be
no amendments to the Subscription Agreements; and certain initial stockholders of Parent shall have forfeited an aggregate of 100,000
shares of Parent Common Stock. Revelstone has also agreed to include in the Proxy Statement the recommendation of its board that its stockholders
approve all of the proposals to be presented at the special meeting.
Non-Solicitation Restrictions
SET JET has agreed that from
the date of the Merger Agreement until the Closing Date or, if earlier, the valid termination of the Merger Agreement in accordance with
its terms, it will not initiate, encourage or engage in any negotiations with any party relating to an Alternative Transaction, take any
action intended to facilitate an Alternative Transaction or approve, recommend or enter into any agreement relating to an Alternative
Transaction.
Conditions to Closing
The consummation of the Merger
is conditioned upon, among other things, (i) the absence of any applicable (A) law or order, or (B) Action commenced or
asserted in writing by any Authority, prohibiting or, in the case of clause (B), materially restrict the consummation of the
Merger and related transactions; (ii) receipt of any consent, approval or authorization required by any Authority; (iii) initial
listing application with Nasdaq in connection with the transactions contemplated shall have been conditionally approved; (iv) approval
by SET JET stockholders of the Merger and related transactions; (v) approval by Revelstone’s stockholders of the Merger and
related transactions; (vi) prior to closing, and subject to stockholder approval, adoption of a management incentive equity plan;
and (vii) and (viii) the Form S-4 becoming effective in accordance with the provisions of the Securities Act of 1933, as
amended (“Securities Act”).
Solely with respect to Revelstone
and Merger Sub, the consummation of the Merger is conditioned upon, among other things: (i) SET JET having duly performed or complied
with all of its obligations under the Merger Agreement in all material respects; (ii) the representations and warranties of SET JET,
being true and correct in all material respects; (iii) no event having occurred that would result in a Material Adverse Effect on
SET JET or any of its subsidiaries; (iv) SET JET providing a certificate from its chief executive officer as to the accuracy of the
aforementioned conditions; (v) SET JET having provided a certificate from its Secretary attaching true, correct and complete copies
of its Articles of Incorporation, Bylaws, Board of Directors authorizing resolutions and a good standing; (vi) each of SET JET and
the Company Securityholders and each other Person (other than Parent and the Sponsor) duly and irrevocably executing and delivering to
Parent a copy of each Additional Agreement to which they are a Party; (vii) not more than 5% of the issued and outstanding shares
of SET JET shall constitute Dissenting Shares; (viii) SET JET having delivered to Parent a duly executed certificate conforming to
the requirements of Treasury Regulations Sections 1.897-2(h)(1)(i) and 1.1445-2(c)(3)(i) and a notice to be delivered to the
United States Internal Revenue Service as required under Treasury Regulations Section 1.897-2(h)(2), (ix) SET JET having obtained
and delivered to Parent each Company Consent; (x) SET JET having obtained and delivered to Parent the financial statements required
to be included in the Parent SEC Documents; (xi) the cumulative Debt for Borrowed Money of the Company shall be less than or equal
to $14,970,000; (xii) SET JET having obtained and delivered to Parent the written approval of the Merger by the holders of a majority
of the issued and outstanding common stock of SET JET not held by directors or officers of SET JET; (xiii) SET JET having obtained
and delivered to Parent duly and irrevocably executed Lock-Up Agreements, Company Support Agreements, and Voting Agreements from the holders
of at least 50% of all issued and outstanding common stock of SET JET; and (xiv) SET JET shall have complied in all material respects
with its obligations under the Pre-PIPE Convertible Note.
Solely with respect to SET
JET, the consummation of the Merger is conditioned upon, among other things: (i) Revelstone and Merger Sub having duly performed
or complied with all of their respective obligations under the Merger Agreement in all material respects; (ii) the fundamental representations
and warranties of Revelstone as set forth in the Merger Agreement that are qualified as to materiality being true in all respects and
the representations and warranties as set forth in the Merger Agreement that are not so qualified, being true and correct in all material
respects; (iii) no event having occurred that would result in a Material Adverse Effect on Revelstone or Merger Sub; (iv) Revelstone
providing a certificate from its chief executive officer as to the accuracy of the aforementioned conditions, (iv) Revelstone, Revelstone
Ventures I, LLC (the “Sponsor”), and any other security holder of Revelstone, shall have executed and delivered to
SET JET each Additional Agreement to which they each are a party; (v) Revelstone and Merger Sub having each delivered certain certificates
to SET JET; (vi) Revelstone having filed its Amended Parent Charter and such Amended Parent Charter being declared effective by,
the Delaware Secretary of State; (vii) Revelstone having provided a certificate from its Secretary attaching true, correct and complete
copies of their respective Articles of Incorporation, Bylaws, Board of Directors authorizing resolutions and a good standing; (viii) Merger
Sub having provided a certificate from its Secretary attaching true, correct and complete copies of its Articles of Incorporation, Bylaws,
Board of Directors authorizing resolutions and a good standing; (ix) The size and composition of the post-Closing Parent Board of
Directors shall have been constituted in accordance with Section 2.8 of the Merger Agreement, and (x) Revelstone shall have
complied in all material respects with the provisions of the Subscription Agreement with respect to the issuance of warrants and granting
of registration rights and that the subscriber under the Subscription Agreement shall have complied in all material respects with its
subscription obligation pursuant to the terms thereof.
Termination
The Merger Agreement may be
terminated as follows:
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(i) |
by either Revelstone or SET JET, without liability to the other party, if (A) the Merger and related transactions are not consummated on or before December 21, 2023 (the “Outside Closing Date”), and (B) the material breach or violation of any representation, warranty, covenant or obligation under the Merger Agreement by the party seeking to terminate the Merger Agreement was not the cause of, or resulted in, the failure of the Closing to occur on or before the Outside Closing Date. Such right may be exercised by Revelstone or SET JET, as the case may be, giving written notice to the other at any time after the Outside Closing Date; |
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by either Revelstone or SET JET if any Authority has issued any final decree, order, judgment, award, injunction, rule or consent or enacted any law, having the effect of permanently enjoining or prohibiting the consummation of the Merger; |
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by either Revelstone and SET JET if, at the Parent Stockholder Meeting (including any postponements or adjournments thereof), the Parent Proposals shall fail to be approved by the affirmative vote of Parent stockholders required under Parent’s organizational documents and applicable Law; |
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by mutual written consent of Revelstone and SET JET duly authorized by each of their respective boards of directors; |
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by either Revelstone or SET JET if, at the Revelstone Stockholder Meeting (including any postponements or adjournments thereof), the Required Proposals (as described in the Merger Agreement) shall fail to be approved by the affirmative vote of Revelstone stockholders required under Revelstone’s organizational documents and applicable Law; |
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by Revelstone, if (a) at any time after the SET JET Stockholder Written Consent Deadline, SET JET has not previously received the Stockholder Approval, or (b) SET JET shall have taken or omitted to take any action the taking or omission of which is the cause of the occurrence of a Material Adverse Effect with respect to SET JET; or |
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by either Revelstone or SET JET, if the other party has breached any of its covenants or representations and warranties such that it would be impossible or would reasonably be expected to be impossible to satisfy any of its closing conditions and such breach is incapable of being cured or is not cured by the earlier of (A) the Outside Closing Date and (B) five days following receipt by the breaching party of a written notice of the breach or suffered a Material Adverse Effect which is incurable and continuing; provided that the terminating party is not then in breach of the Merger Agreement so as to prevent the satisfaction of its closing conditions. |
Effect of Termination
If the Merger Agreement is
terminated in accordance with its terms, the Merger Agreement will become void and of no further force and effect without liability of
any party, except for liability arising out of any party’s willful breach of the Merger Agreement or intentional fraud.
Certain Related Agreements
Parent Stockholder Support Agreement
In connection with the execution
of the Merger Agreement, Revelstone and certain stockholders of Revelstone entered into that certain Parent Stockholder Support Agreement
dated July 17, 2023 (the “Parent Stockholder Support Agreement”) pursuant to which they agreed to vote all shares
of Revelstone Common Stock beneficially owned by them, including any additional shares of Revelstone they acquire ownership of or the
power to vote in favor of the Merger, and related transactions, and against any action reasonably expected to impede, delay or materially
and adversely affect the Merger and related transactions.
The foregoing description
of the Parent Stockholder Support Agreement is qualified in its entirety by reference to the full text of the Parent Stockholder Support
Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K, and incorporated herein by reference.
Company Stockholder Support Agreement
In connection with the execution
of the Merger Agreement, Revelstone and certain stockholders of SET JET entered into that certain Company Stockholder Support Agreement
dated July 17, 2023 (the “Company Stockholder Support Agreement”) pursuant to which certain SET JET stockholders
agreed to vote all shares of SET JET Common Stock beneficially owned by them, including any additional shares of SET JET they acquire
ownership of or the power to vote in favor of the Merger, including related transactions, and against any action reasonably expected to
impede, delay or materially and adversely affect the Merger and related transactions. An additional number of certain stockholders of
SET JET will enter into a Company Support Agreement prior to Closing.
The foregoing description
of the Company Stockholder Support Agreement is qualified in its entirety by reference to the full text of the Company Stockholder Support
Agreement, a copy of which is filed as Exhibit 10.2 to this Current Report on Form 8-K, and incorporated herein by reference.
Agreements to be Executed Prior to or at Closing
Earnout Escrow Agreement
In connection with the execution
of the Merger Agreement, Revelstone, SET JET, the Sponsor, and Continental Stock Transfer & Trust Company will enter into an earnout
escrow agreement (the “Earnout Escrow Agreement”), pursuant to which certain Earnout Recipients shall be entitled to
earn, on a pro rata basis, up to an additional 4,500,000 shares of Revelstone Class A Common Stock at the Reference Price. The
release of the Earnout Shares shall occur as follows:
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3,500,000 Earnout Shares if the VWAP of Parent’s Common Stock trades above $12.50 for 20 out of 30 consecutive days within five (5) years after the Closing Date; and |
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1,000,000 Earnout Shares if the VWAP of Parent’s Common Stock trades above $15.00 for 20 out of 30 consecutive days within five (5) years after the Closing Date. |
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Upon a Change in Control within five (5) years after the Closing Date. |
Retention Bonus Agreement
In addition, prior to the
Closing, Revelstone will enter into a Retention Bonus Agreement with certain executive officers and directors of SET JET who will continue
as officers and directors of the Combined Company (the “Retention Bonus Agreement”) pursuant to which such individuals
will be granted restricted stock units that include up to 2,000,000 shares of Parent Common Stock, at the Reference Price under the
Equity Incentive Plan, and will vest if, within five (5) years after the Closing Date (a) the VWAP of Parent’s Common
Stock trades above $15.00 for 20 out of 30 consecutive days within five (5) years after the Closing Date or (b) a Change of
Control.
The foregoing description
of each of the Earnout Agreement and the Retention Bonus Agreement, is qualified in its entirety by reference to the full text of the
form of Earnout Agreement and the Retention Bonus Agreement, copies of which are included as Exhibit J and Exhibit D, respectively,
to the Merger Agreement, filed as Exhibit 2.1 to this Current Report on Form 8-K, and incorporated herein by reference.
Lock-Up Agreement
In connection with the execution
of the Merger Agreement, Revelstone, and certain SET JET stockholders have entered into contemporaneously with the signing of the Merger
Agreement, and additional SET JET stockholders will enter into, a lock-up agreement (the “Lock-Up Agreement”), pursuant
to which each such SET JET stockholder will agree, subject to certain customary exceptions, not to (i) sell, offer to sell, contract
or agree to sell, pledge or otherwise dispose of, directly or indirectly, any shares of Revelstone Common Stock held by them as part of
the Merger Consideration, (such shares, together with any securities convertible into or exchangeable for or representing the rights to
receive shares of Common Stock if any, acquired during the Lock-Up Period (as defined below), the “Lock-Up Shares”),
(ii) enter into a transaction that would have the same effect, (iii) enter into any swap, hedge or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership of the Lock-Up Shares or otherwise, or engage in any short
sales or other arrangement with respect to the Lock-Up Shares or (iv) publicly announce any intention to effect any transaction specified
in clause (i) or (ii) until the date that is 6 months after the Closing Date (the period from the date of the Lock-Up Agreement
until such date, the “Lock-Up Period”).
The foregoing description
of the Lock-Up Agreement is qualified in its entirety by reference to the full text of the form of Lock-Up Agreement, a copy of which
is included as Exhibit F to the Merger Agreement, filed as Exhibit 10.3 to this Current Report on Form 8-K, and incorporated
herein by reference.
Voting Agreement
In connection with the execution of the Merger Agreement, Revelstone,
the Sponsor and certain holders of Revelstone Common Stock (as identified in the Voting Agreement) have entered into, contemporaneously
with the signing of the Merger Agreement, and additional SET JET stockholders will enter into, a voting agreement (the “Voting
Agreement”), pursuant to which such holders of Revelstone Common Stock agree to vote in favor of certain matters relating to
the nomination and election of the Post-Closing Board of Directors (as described in the Voting Agreement).
The foregoing description
of the Voting Agreement is qualified in its entirety by reference to the full text of the form of Voting Agreement, a copy of which is
included as Exhibit I to the Merger Agreement, filed as Exhibit 2.1 to this Current Report on Form 8-K, filed as Exhibit 10.4
to this Current Report on Form 8-K, and incorporated herein by reference.
PIPE Financing
- Subscription Agreements
On
July 17, 2023, contemporaneously with the signing of the Merger Agreement, SET JET and Revelstone entered into agreements with the
Coleman Asset Management Group Ltd., an investment firm headquartered in London, England (the “Subscriber”), to
finance SET JET and the Combined Company in the aggregate amount of $18 million. The Subscriber committed $4 million to SET JET upon
execution of the Pre-Pipe Subscription Agreement and the Pre-PIPE Convertible Note; and $14 million will be issued in two tranches
pursuant to the PIPE subscription agreement between the Subscriber and Revelstone, for the purchase of Class A shares of Common
Stock (the “PIPE Subscription Agreement”), as described below. The equity financing as herein described is
referred to as the “PIPE Financing” and includes the conversion rights issued as part of the Pre-PIPE Convertible
Note.
The
Pre-PIPE Convertible Note shall convert into the right to receive 800,000 shares of Class A Common Stock of the Combined Company,
at the Closing of the Business Combination. In addition, the Subscriber will be issued 400,000 warrants which will be added to the number
of warrants issued in connection with the PIPE Financing on the same terms and conditions as the warrant agreement, defined below.
Pursuant
to the Subscription Agreement, among other things, the Subscriber will purchase shares of Class A Common Stock of the Combined Company
(the “PIPE Shares”), for aggregate gross proceeds of $14 million at a purchase price of $5.00 per share, in a private
placement (“PIPE Financing Amount”). The $14 million shall be paid to the Combined Company in two tranches: $7,500,000
at the Initial Closing Date (which is the date of the Closing of the Business Combination), and $6,500,000 on the Additional Closing Date,
as defined below.
In
addition, the Company shall issue Warrants to the Subscriber in two tranches pursuant to a warrant agreement (the “Warrant
Agreement”): (i) 750,000 Warrants upon the Initial Closing Date each exercisable, for a period of 10 years from the date
of the Initial Closing, for one share of Common Stock at a price of $12.50 per share and (ii) 650,000 Warrants upon the Additional
Closing Date (as defined below) each exercisable for a period of 10 years from the date of the Additional Closing Date, for one share
of Common Stock at a price of $12.50 per share. The Additional Closing Date shall mean the date that is within 3 business days of, the
earlier of (i) the date on which the Registration Statement registering all of the Registrable Securities is declared effective by
the Commission and (ii) the three month anniversary of the Initial Closing Date. The warrants issued to the Subscriber in connection
with the Pre-PIPE Convertible Note shall be included in the Warrant Agreement with the warrants issued in connection with the PIPE Subscription
Agreement.
The
purpose of the PIPE Financing is to raise additional capital for use in connection with the Merger. The PIPE Shares will not be entitled
to any redemption rights and will not be registered with the SEC. The closing of the sale of PIPE Shares will be contingent upon the substantially
concurrent consummation of the Merger.
Pursuant
to the PIPE Subscription Agreement, the Combined Company has agreed to file (at the Combined Company’s sole cost and expense) a
registration statement registering the resale of the PIPE Shares (the “PIPE Resale Registration Statement”) within
45 days of the Closing of the Business Combination. The Combined Company will use its commercially reasonable efforts to have the PIPE
Resale Registration Statement declared effective as soon as practical, but no later than the earlier of (a) ninety (90) calendar
days after the filing thereof (or one hundred twenty (120) calendar days after the filing thereof if the SEC notifies the Combined Company
that it will “review” the Registration Statement) and (b) ten (10) business days after the Combined Company is notified
by the SEC that the Registration Statement will not be “reviewed” or will not be subject to further review.
The
PIPE Subscription Agreement may be terminated if the Initial Closing has not been consummated on or before December 31, 2023.
The foregoing
description of the Warrant Agreement, Pre-Pipe Subscription Agreement, PIPE Subscription Agreement and Form PIPE Resale
Registration Rights Agreement is qualified in its entirety by reference to the full text of the Form of Warrant Agreement,
Pre-Pipe Subscription Agreement, PIPE Subscription Agreement, and Form PIPE Resale Registration Rights Agreement, a copy of
each of which is filed as Exhibits 4.1, 10.5, 10.6 and 10.7 to this Current Report on Form 8-K, and incorporated herein by
reference.
Item 3.02 Unregistered Sales of Equity Securities.
The information set forth
above in Item 1.01 of this Report under the heading “PIPE Subscription Agreement” is incorporated by reference herein.
The shares of Common Stock to be issued in connection with the Subscription Agreement and the transactions contemplated thereby will not
be registered under the Securities Act, in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities
Act and/or Regulation D promulgated thereunder.
Item 7.01 Regulation FD Disclosure.
On July 18, 2023,
Revelstone and SET JET issued a joint press release announcing the execution of the Merger Agreement. A copy of the press release is
furnished as Exhibit 99.1 to this Current Report on Form 8-K, and is incorporated herein by reference.
The information in this Item
7.01, including Exhibit 99.1, is furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to liabilities under that section, nor
shall it be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, except as expressly set forth
by specific reference in such filing.
Important Information About the Merger and
Where to Find It
In connection with the proposed
Merger, Revelstone intends to file a registration statement on Form S-4 with the SEC, which will include a document that serves as
a prospectus and proxy statement of Revelstone, referred to as a “proxy statement/prospectus.” The preliminary and definitive
proxy statements/prospectuses and other relevant documents will be sent or given to the stockholders of Revelstone as of the record date
established for voting on the proposed Merger and will contain important information about the proposed Merger and related matters. Before
making any voting decision, investors and security holders of Revelstone are urged to read, when available, the registration statement,
the preliminary proxy statement/prospectus and any amendments thereto and, once available, the definitive proxy statement/prospectus,
in connection with Revelstone’s solicitation of proxies for the meeting of stockholders to be held to approve, among other things,
the proposed Merger because these documents will contain important information about Revelstone, SET JET and the proposed Merger. When
available, the definitive proxy statement/prospectus will be mailed to Revelstone’s stockholders as of a record date to be established
for voting on the proposed Merger. Revelstone stockholders and other interested persons will also be able to obtain copies of the proxy
statement/prospectus, without charge, once available, at the SEC’s website at www.sec.gov or by directing a request to: Revelstone,
at info@Revelstoneadv.com.
Participants in the Solicitation
Revelstone, SET JET and their
respective directors and executive officers may be deemed to be participants in the solicitation of proxies from Revelstone’s stockholders
in connection with the proposed Merger. Revelstone’s stockholders and other interested persons may obtain, without charge, more
detailed information regarding the directors and executive officers of Revelstone in Revelstone’s final prospectus filed with the
SEC on December 16, 2021 in connection with Revelstone’s initial public offering. Information regarding the persons who may,
under SEC rules, be deemed participants in the solicitation of proxies to Revelstone’s stockholders in connection with the proposed
Merger will be set forth in the proxy statement/prospectus for the proposed Merger when available. Additional information regarding the
interests of participants in the solicitation of proxies in connection with the proposed Merger will be included in the proxy statement/prospectus
that Revelstone intends to file with the SEC, as described in the “Important Information About the Merger and Where to Find It”
section of this Current Report on Form 8-K.
Forward-Looking Statements
This
Current Report on Form 8-K and the documents incorporated by reference herein contain certain “forward-looking statements”
within the meaning of “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995, as amended. Forward-looking
statements can be identified by words such as “target,” “believe,” “expect,” “will,” “shall,”
“may,” “anticipate,” “estimate,” “would,” “positioned,” “future,”
“forecast,” “intend,” “plan,” “project” and other similar expressions that predict or
indicate future events or trends or that are not statements of historical matters. Examples of forward-looking statements include, among
others, statements made in this Current Report on Form 8-K regarding the proposed transactions contemplated by the Merger Agreement,
including the benefits of the Merger, integration plans, expected synergies and revenue opportunities, anticipated future financial and
operating performance and results, including estimates for growth, achievement of the Management and Sponsor Earnout Shares, other
performance metrics, projections of market opportunity, expected management and governance of the
post-business combination company and expected timing of the Merger. Forward-looking statements are neither historical facts nor assurances
of future performance. Instead, these statements are based on various assumptions, whether or not identified in this Current
Report on Form 8-K and on the current expectations of Revelstone’s and SET JET’s respective management and are not predictions
of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve, and
must not be relied on by any investor, as a guarantee, an assurance, a prediction or a definitive statement of fact or probability.
Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances
are beyond the control of Revelstone and SET JET. Some important factors that could cause actual results to differ materially from those
in any forward-looking statements could include changes in domestic and foreign business, market, financial, political and legal
conditions. Because forward-looking statements relate to the future, they are subject to inherent
uncertainties, risks and changes in circumstances that are difficult to predict and many of which are outside of Revelstone’s and
SET JET’s control. Actual results and outcomes may differ materially from those indicated in the forward-looking statements. Therefore,
investors and security holders of Revelstone should not rely on any of these forward-looking
statements.
Important
factors that could cause actual results and outcomes to differ materially from those indicated in the forward-looking statements include,
among others, the following: (1) the occurrence of any event, change or other circumstances that could give rise to an amendment
or termination of the Merger Agreement and the proposed transaction contemplated thereby; (2) the inability to complete the transactions
contemplated by the Merger Agreement due to the failure to obtain approval of the stockholders of Revelstone or SET JET or other conditions
to closing in the Merger Agreement; (3) the inability to project with any certainty the amount of cash proceeds remaining in the
Revelstone trust account at Closing; (4) the uncertainty relative to the cash made available to SET JET at Closing should any material
redemption requests be made by the Revelstone stockholders (since the sources of cash projected in the exhibit to this Current Report
on Form 8-K assume that no redemptions will be requested by Revelstone stockholders); (5) the inability of the post-business
combination company to obtain or maintain the listing of its securities on Nasdaq following the Merger; (6) the amount of costs related
to the Merger; (7) SET JET’s ability to yield sufficient cash proceeds from the transaction to support its short-term operations
and research and development efforts since the Merger Agreement requires no minimum level of funding in the trust fund to close the transaction;
(8) the outcome of any legal proceedings that may be instituted against the parties to the Merger Agreement following the announcement
of the proposed Merger; (9) changes in applicable laws or regulations; (10) the ability of SET JET to meet its post-Closing
financial and strategic goals due to competition, among other things; (11) the ability of the post-business combination company to grow
and manage growth profitability and retain its key employees; (12) the possibility that the post-business combination company may be adversely
affected by other economic, business and/or competitive factors; (13) risks relating to the successful retention of SET JET’s customers;
(14) the potential impact that the COVID-19 pandemic may have on SET JET’s customers, suppliers, vendors, regulatory agencies, employees
and the global economy as a whole; (15) the expected duration over which SET JET’s balances will fund its operations; and (16) other
risks and uncertainties described herein, as well as those risks and uncertainties indicated in Revelstone’s final prospectus
filed with the SEC on December 16, 2021 in connection with Revelstone’s initial public offering, the
preliminary and definitive proxy statements/prospectuses relating to the proposed Merger
to be filed by Revelstone with the SEC, particularly those under the “Risk Factors” sections therein, and in Revelstone’s
other filings with the SEC. Revelstone cautions that the foregoing list of factors is not exclusive. If any of these risks materialize
or Revelstone’s or SET JET’s assumptions prove incorrect, actual results could differ materially from the results implied
by these forward-looking statements. There may be additional risks that neither Revelstone nor SET JET presently know, or that Revelstone
and SET JET currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking
statements. In addition, forward-looking statements reflect Revelstone and SET JET’s current expectations, plans and forecasts of
future events and views as of the date hereof. Nothing in this Current Report on Form 8-K and the attachments hereto should be regarded
as a representation by any person that the forward-looking statements set forth herein will be achieved or that any of the contemplated
results of such forward-looking statements will be achieved. Investors and security holders of Revelstone should not place undue reliance
on forward-looking statements in this Current Report on Form 8-K and the attachments hereto, which speak only as of the date they
are made and are qualified in their entirety by reference to the cautionary statements herein and the risk factors of Revelstone and SET
JET described above. Revelstone and SET JET anticipate that subsequent events and developments will cause their assessments to change.
However, while Revelstone and SET JET may elect to update these forward-looking statements at some point in the future, they each specifically
disclaim any obligation to do so, except as required by law. These forward-looking statements should not be relied upon as representing
Revelstone or SET JET’s assessments as of any date subsequent to the date of this Current Report on Form 8-K. Accordingly,
undue reliance should not be placed upon the forward-looking statements.
No Offer or Solicitation
This
Current Report on Form 8-K shall not constitute a solicitation of a proxy, consent or authorization with respect to any securities
or in respect of the proposed Merger. This Current Report on Form 8-K shall also not constitute
an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval, nor shall there be any
sale of any securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of such other jurisdiction. No offering of securities shall be made except by means of a prospectus
meeting the requirements of Section 10 of the Securities Act, or an exemption therefrom.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits:
| Exhibit |
|
Description |
| 2.1* |
|
Merger Agreement dated as of July 17, 2023 by and among Set Jet, Inc., Revelstone Capital Acquisition Corp., Revelstone Merger Sub, Inc. and Thomas P. Smith as the Securityholder Representative |
| 4.1 |
|
Form of Warrant Agreement |
| 10.1 |
|
Parent Stockholder Support Agreement dated as of July 17, 2023 by and among Revelstone Capital Acquisition Corp., SET JET Inc. and certain stockholders of Revelstone Capital Acquisition Corp. |
| 10.2 |
|
Company Stockholder Support Agreement dated as of July 17, 2023 by and among Set Jet, Inc. and certain stockholders of Set Jet, Inc. |
| 10.3 |
|
Form of Lockup Agreement |
| 10.4 |
|
Form of Voting Agreement |
| 10.5 |
|
Pre-PIPE Subsription Agreement |
| 10.6 |
|
Subscription Agreement dated July 17, 2023 |
| 10.7 |
|
Form of PIPE Resale Registration Rights Agreement |
| 99.1 |
|
Press Release dated July 18, 2023 |
| 104 |
|
Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document. |
| * |
Certain exhibits and schedules to this Exhibit have been omitted in accordance with Item 601(a)(5) of Regulation S-K. Revelstone agrees to furnish supplementally a copy of any omitted exhibit and schedule to the SEC upon its request. |
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: July 21, 2023
| REVELSTONE CAPITAL ACQUISITION CORP. |
|
| |
|
|
| By: |
/s/ Morgan Callagy |
|
| Name: |
Morgan Callagy |
|
| Title: |
Co-Chief Executive Officer |
|
Exhibit 2.1
MERGER AGREEMENT
dated
July 17, 2023
by and among
Set Jet, Inc.,
Revelstone Capital Acquisition Corp.,
Revelstone Capital Merger Sub, Inc., and
Thomas P. Smith,
as the Securityholder Representative.
Table
of Contents
| |
|
Page |
| |
|
|
| Article I
DEFINITIONS |
2 |
| |
|
|
| 1.1 |
Definitions |
2 |
| 1.2 |
Construction |
17 |
| |
|
|
| Article II
MERGER |
18 |
| |
|
|
| 2.1 |
Merger |
18 |
| 2.2 |
Merger Effective Time |
18 |
| 2.3 |
Effect of the Merger |
18 |
| 2.4 |
U.S. Tax Treatment |
18 |
| 2.5 |
Articles of Incorporation; Bylaws |
19 |
| 2.6 |
Closing |
19 |
| 2.7 |
Directors and Officers of Surviving Corporation |
19 |
| 2.8 |
Directors of Parent |
19 |
| 2.9 |
Taking of Necessary Action; Further Action |
20 |
| 2.10 |
No Further Ownership Rights in Company Common Stock |
20 |
| |
|
|
| Article III
EFFECT OF THE MERGER |
20 |
| |
|
|
| 3.1 |
Effect of the Merger on Company Common Stock |
20 |
| 3.2 |
Treatment of Company Options. Company Restricted
Stock and Company Warrants |
20 |
| 3.3 |
Dissenting Shares |
22 |
| 3.4 |
Surrender and Payment |
23 |
| 3.5 |
Consideration Spreadsheet |
24 |
| 3.6 |
Earnout |
25 |
| 3.7 |
Adjustment |
26 |
| 3.8 |
No Fractional Shares |
27 |
| 3.9 |
Withholding |
27 |
| 3.10 |
Lost or Destroyed Certificates |
27 |
| |
|
|
| Article IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
27 |
| |
|
|
| 4.1 |
Corporate Existence and Power |
27 |
| 4.2 |
Authorization |
28 |
| 4.3 |
Governmental Authorization |
28 |
| 4.4 |
Non-Contravention |
29 |
| 4.5 |
Capitalization |
29 |
| 4.6 |
Corporate Records |
30 |
| 4.7 |
No Subsidiaries |
30 |
| 4.8 |
Consents |
30 |
| 4.9 |
Financial Statements |
31 |
| 4.10 |
Books and Records |
31 |
| 4.11 |
Internal Accounting Controls |
31 |
| 4.12 |
Absence of Certain Changes |
31 |
| 4.13 |
Properties; Title to the Company’s Assets |
32 |
| 4.14 |
Litigation |
32 |
| 4.15 |
Contracts |
32 |
| 4.16 |
Licenses and Permits |
34 |
Table
of Contents continued
| |
|
Page |
| |
|
|
| 4.17 |
Compliance with Laws |
34 |
| 4.18 |
Intellectual Property |
35 |
| 4.19 |
Accounts Payable; Affiliate Loans |
38 |
| 4.20 |
Employees; Employment Matters |
38 |
| 4.21 |
Withholding |
40 |
| 4.22 |
Employee Benefits |
40 |
| 4.23 |
Real Property |
42 |
| 4.24 |
Tax Matters |
43 |
| 4.25 |
Environmental Laws |
44 |
| 4.26 |
Finders’ Fees |
44 |
| 4.27 |
Powers of Attorney, Suretyships and Bank Accounts |
45 |
| 4.28 |
Directors and Officers |
45 |
| 4.29 |
Anti-Money Laundering Laws |
45 |
| 4.30 |
Insurance |
46 |
| 4.31 |
Related Party Transactions |
46 |
| 4.32 |
No Trading or Short Position |
46 |
| 4.33 |
Not an Investment Company |
46 |
| 4.34 |
Information Supplied |
47 |
| |
|
|
| Article V
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB |
47 |
| |
|
|
| 5.1 |
Corporate Existence and Power |
47 |
| 5.2 |
Corporate Authorization |
47 |
| 5.3 |
Governmental Authorization |
48 |
| 5.4 |
Non-Contravention |
48 |
| 5.5 |
Internal Controls |
48 |
| 5.6 |
Undisclosed Liabilities |
48 |
| 5.7 |
Stock Exchange Listing |
49 |
| 5.8 |
Finders’ Fees |
49 |
| 5.9 |
Issuance of Shares |
49 |
| 5.10 |
Capitalization |
49 |
| 5.11 |
Information Supplied |
50 |
| 5.12 |
Trust Fund |
50 |
| 5.13 |
Board Approval |
51 |
| 5.14 |
Parent SEC Documents and Financial Statements |
51 |
| 5.15 |
Affiliate Transactions |
52 |
| 5.16 |
Litigation |
52 |
| 5.17 |
Compliance with Laws |
53 |
| 5.18 |
Absence of Certain Changes |
53 |
| 5.19 |
Indebtedness |
53 |
| 5.20 |
Tax Matters |
54 |
| 5.21 |
PIPE Investments |
56 |
| |
|
|
| Article VI
COVENANTS OF THE PARTIES PENDING CLOSING |
56 |
| |
|
|
| 6.1 |
Conduct of the Business |
56 |
| 6.2 |
Exclusivity |
59 |
| 6.3 |
Access to Information |
60 |
| 6.4 |
Notices of Certain Events |
60 |
| 6.5 |
Cooperation with Form S-4/Proxy Statement;
Other Filings |
61 |
Table
of Contents continued
| |
|
Page |
| |
|
|
| 6.6 |
Trust Account |
64 |
| 6.7 |
Obligations of Merger Sub |
64 |
| 6.8 |
EIP |
64 |
| 6.9 |
Extension of Time to Consummate the Merger |
64 |
| |
|
|
| Article VII
COVENANTS |
65 |
| |
|
|
| 7.1 |
Reporting; Compliance with Laws; No Insider Trading |
65 |
| 7.2 |
Commercially Reasonable Efforts to Obtain Consents
and Agreements |
66 |
| 7.3 |
Company Stockholders Approval |
66 |
| 7.4 |
Additional Financial Information |
66 |
| 7.5 |
280G Approval |
67 |
| 7.6 |
Amended Parent Charter |
67 |
| 7.7 |
Subscription Agreements |
67 |
| 7.8 |
Retirement of Parent Shares |
67 |
| 7.9 |
Additional Agreements |
67 |
| 7.10 |
Pre-PIPE and PIPE Agreements |
68 |
| |
|
|
| Article VIII
COVENANTS OF ALL PARTIES HERETO |
68 |
| |
|
|
| 8.1 |
Commercially Reasonable Efforts; Further Assurances;
Governmental Consents |
68 |
| 8.2 |
Confidential Nature of Information |
69 |
| 8.3 |
Directors’ and Officers’ Indemnification
and Liability Insurance |
69 |
| 8.4 |
Parent Public Filings; Nasdaq |
70 |
| 8.5 |
Certain Tax Matters |
71 |
| |
|
|
| Article IX
CONDITIONS TO CLOSING |
71 |
| |
|
|
| 9.1 |
Condition to the Obligations of the Parties |
71 |
| 9.2 |
Conditions to Obligations of Parent and Merger Sub |
72 |
| 9.3 |
Conditions to Obligations of the Company |
74 |
| |
|
|
| Article X
TERMINATION |
75 |
| |
|
|
| 10.1 |
Termination Without Default |
75 |
| 10.2 |
Termination Upon Default |
76 |
| 10.3 |
Effect of Termination |
76 |
| |
|
|
| Article XI
MISCELLANEOUS |
77 |
| |
|
|
| 11.1 |
Notices |
77 |
| 11.2 |
Fees and Expenses |
78 |
| 11.3 |
Amendments; No Waivers; Remedies |
78 |
| 11.4 |
Arm’s Length Bargaining; No Presumption Against
Drafter |
79 |
| 11.5 |
Publicity |
79 |
| 11.6 |
No Assignment or Delegation |
79 |
| 11.7 |
Governing Law |
79 |
| 11.8 |
Counterparts; Facsimile Signatures |
79 |
| 11.9 |
Entire Agreement |
79 |
| 11.10 |
Severability |
79 |
Table
of Contents continued
| |
|
Page |
| |
|
|
| 11.11 |
Further Assurances |
80 |
| 11.12 |
Third Party Beneficiaries |
80 |
| 11.13 |
Waiver |
80 |
| 11.14 |
Waiver of Jury Trial |
80 |
| 11.15 |
Submission to Jurisdiction |
80 |
| 11.16 |
Remedies |
81 |
| 11.17 |
Non-Recourse |
81 |
| 11.18 |
Securityholder Representative |
81 |
| Exhibit A |
– |
Form of Company Support Agreements |
| Exhibit B |
– |
Form of Parent Support Agreement |
| Exhibit C |
– |
Form of Voting Agreement |
| Exhibit D |
– |
Form of Retention Bonus Agreement |
| Exhibit E |
– |
Form of Employment Agreement |
| Exhibit F |
– |
Form of Lock-up Agreement |
| Exhibit G |
– |
Form of Restrictive Covenant Agreement |
| Exhibit H |
– |
Form of Certificate of Merger |
| Exhibit I |
– |
Form of Articles of Merger |
| Exhibit J |
– |
Form of Earnout Escrow Agreement |
| Exhibit K |
– |
Form of Third Amended and Restated Certificate
of Incorporation |
| Exhibit L |
– |
Form of Amended and Restated Bylaws |
| Exhibit M |
– |
Form of Equity Incentive Plan |
MERGER AGREEMENT
THIS MERGER AGREEMENT is
dated as of July 17, 2023 (this “Agreement”), and entered into by and among Set Jet, Inc., a Nevada corporation
(the “Company”), Revelstone Capital Acquisition Corp., a Delaware corporation (“Parent”), Revelstone
Capital Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and Thomas P. Smith, as the Securityholder Representative.
W I T N E S E T H:
A. The
Company is in the business of providing a membership based private jet charter program and related activities (as conducted or proposed
to be conducted by the Company, the “Business”).
B. Parent
is a blank check company formed for the sole purpose of entering into a share exchange, asset acquisition, share purchase, recapitalization,
reorganization or other similar business combination with one or more businesses or entities, and Merger Sub is a wholly-owned subsidiary
of Parent.
C. Merger
Sub will merge with and into the Company (the “Merger”), after which the Company will be the surviving company (the
“Surviving Corporation”) and a wholly-owned subsidiary of Parent and Parent shall change its name to “Set Jet, Inc.”
D. Upon
or prior to the date hereof, and as a condition and an inducement to Parent and Merger Sub to enter into this Agreement, the Company
Securityholders whose names are set forth on Schedule D hereto are entering into and delivering Support Agreements, substantially
in the form attached hereto as Exhibit A (each, a “Company Support Agreement”), pursuant to which each
such Company Securityholder has agreed to vote in favor of the adoption of this Agreement and approval of the Merger and the other transactions
contemplated hereby.
E. Upon
or prior to date hereof, and as a condition and an inducement to Parent, Merger Sub and the Company to enter into this Agreement, and
the stockholders of Parent whose names are set forth on Schedule E hereto are entering into and delivering Support Agreements,
substantially in the form attached hereto as Exhibit B (each, a “Parent Support Agreement”), pursuant
to which each such Parent stockholder has agreed (i) not to transfer or redeem any shares of Parent Common Stock held by such Parent
stockholder and (ii) to vote in favor of the adoption and approval of each of the Parent Proposals at the Parent Stockholder Meeting.
F. Upon
or prior to the date hereof, and as a condition and an inducement to Parent, Merger Sub and the Company to enter into this Agreement,
Parent, the Company, and the Company Securityholders and stockholders of Parent whose names are set forth on Schedule F attached
hereto are entering into and delivering that certain Voting Agreement in the form attached hereto as Exhibit C (the “Voting
Agreement”), pursuant to which such Company Securityholders and certain Parent stockholders agree to vote for the composition
of the Board of Directors of Parent and the Company pursuant to the terms thereof and as set forth herein.
G. Upon
or prior to the date hereof, and as a condition and an inducement to Parent and the Company to enter into this Agreement, the Company
Securityholders whose names are set forth on Schedule G hereto are entering into and delivering a Lock-Up Agreement with Parent
pursuant to which the Parent Common Stock held by them, including shares of Parent Common Stock issued to them at Closing in connection
with the Merger, are subject to restrictions on their sale, transfer or other disposition in accordance with the terms and conditions
more fully set forth therein.
H. Prior
to the Closing, Parent will enter into a Retention Bonus Agreement with certain executive officers and directors of the Company, substantially
in the form attached hereto as Exhibit D (the “Retention Bonus Agreement”) pursuant to which such individuals
will be granted restricted stock units covering up to 2,000,000 shares of Parent Common Stock under the EIP, subject to the terms and
conditions set forth in the Retention Bonus Agreement.
I. For
U.S. federal income tax purposes, the parties hereto intend that the Merger will qualify as a tax-deferred reorganization within the
meaning of Section 368(a) of the Code and the Company’s Board of Directors and the Boards of Directors of Parent and
Merger Sub have approved this Agreement and intend that it constitute a plan of reorganization within the meaning of Treasury Regulation
Section 1.368-2(g).
J. In
connection with the transactions contemplated hereby, Parent has entered into certain (i) subscription agreements (collectively,
the “Subscription Agreements”) with the applicable investors named therein (collectively, the “PIPE Investors”)
pursuant to which the PIPE Investors have committed to make a private investment in public equity in the form of Parent Class A
Common Stock (the “PIPE Investment”) on the terms and subject to the conditions set forth therein and (ii) registration
rights agreements (collectively, the “PIPE Registration Rights Agreements”) pursuant to which the PIPE Investors will
receive certain registration rights for Parent Class A Common Stock received in the PIPE Investment on the terms and subject to
the conditions set forth therein.
K. The
Boards of Directors of each of the Company, Parent and Merger Sub have (i) approved and declared advisable this Agreement and the
transactions contemplated by this Agreement and the Additional Agreements to which they are or will be party, including the Merger, and
the performance of their respective obligations hereunder or thereunder, on the terms and subject to the conditions set forth herein
or therein, (ii) determined that this Agreement and such transactions are advisable and in the best interests of, them and their
respective stockholders and (iii) resolved to recommend that their respective stockholders approve the Merger and such other transactions
and adopt this Agreement and the Additional Agreements to which they are or will be a party and the performance of such party of their
obligations hereunder and thereunder.
In consideration of the mutual
covenants and promises set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
Article I
DEFINITIONS
1.1 Definitions.
The following terms have the meanings specified or referred to in this Article I:
“Action”
means any legal action, litigation, suit, claim, hearing, proceeding or investigation, including any audit, claim or assessment for Taxes
or otherwise, by or before any Authority.
“Additional
Agreements” means the Company Support Agreements, the Parent Support Agreements, the Lock-Up Agreements, the Restrictive
Covenant Agreements, the Employment Agreements, the Voting Agreement, the Subscription Agreements and the PIPE Registration Rights Agreements.
“Additional Parent
SEC Documents” has the meaning set forth in Section 5.14(a).
“Affiliate”
means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by or under common Control with such
Person.
“Agreement”
has the meaning set forth in the preamble.
“Alternative Proposal”
has the meaning set forth in Section 6.2(b).
“Alternative Transaction”
has the meaning set forth in Section 6.2(a).
“Amended Parent Charter”
has the meaning set forth in Section 6.5(e).
“Applicable Taxes”
mean such Taxes as defined in Internal Revenue Service Notice 2020-65 (and any corresponding Taxes under state or local tax applicable
Law).
“Applicable Wages”
mean such wages as defined in Internal Revenue Service Notice 2020-65 (and any corresponding wages under state or local tax applicable
Law).
“Articles of Merger”
has the meaning set forth in Section 2.2.
“Authority”
means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government
or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority
exercising executive, legislative, judicial, regulatory or administrative functions (to the extent that the rules, regulations or orders
of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.
“Balance Sheet”
means the audited consolidated balance sheet of the Company as of December 31, 2022 (the “Balance Sheet Date”).
“Books and Records”
means all books and records, ledgers, employee records, customer lists, files, correspondence, and other records of every kind (whether
written, electronic, or otherwise embodied) owned or controlled by a Person in which a Person’s assets, the business or its transactions
are otherwise reflected, other than stock books and minute books.
“Business”
has the meaning set forth in the recitals to this Agreement.
“Business Combination”
has the meaning set forth in the Parent’s Letter Agreement dated December 16, 2021.
“Business
Day” means any day other than a Saturday, Sunday or a legal holiday on which commercial banking institutions in New York, New
York are authorized to close for business, excluding as a result of “stay at home”, “shelter-in-place”,
“non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the
direction of any governmental authority so long as the electronic funds transfer systems, including for wire transfers, of commercially
banking institutions in New York, New York are generally open for use by customers on such day.
“CARES Act”
means Coronavirus Aid, Relief, and Economic Security Act.
“Cash and Cash Equivalents”
means the cash and cash equivalents, including checks, money orders, marketable securities, short-term instruments, negotiable instruments,
funds in time and demand deposits or similar accounts on hand, in lock boxes, in financial institutions or elsewhere, together with all
accrued but unpaid interest thereon, and all bank, brokerage or other similar accounts.
“Certificate of Merger”
has the meaning set forth in Section 2.2.
“Change in Control”
means (i) any transaction or series of related transactions that results in any Person or “group” (within the meaning
of Section 13(d)(3) of the Exchange Act) acquiring Equity Interests that represent more than 50% of the total voting power
of Parent or (ii) a sale or disposition of all or substantially all of the assets of Parent and its Subsidiaries on a consolidated
basis, in each case other than a transaction or series of related transactions which results in at least 50% of the combined voting power
of the then outstanding voting securities of Parent (or any successor to Parent) immediately following the closing of such transaction
(or series of related transactions) being beneficially owned, directly or indirectly, by individuals and entities (or Affiliates of such
individuals and entities) who were the beneficial owners, respectively, of at least 50% of the Equity Interests of Parent (or any successor
to Parent) immediately prior to such transaction (or series of related transactions).
“Closing”
has the meaning set forth in Section 2.6.
“Closing Consideration
Spreadsheet” means the last Consideration Spreadsheet prepared and delivered by the Company to Parent prior to the Closing
in accordance with, and on a basis consistent with, the Form Consideration Spreadsheet.
“Closing Date”
has the meaning set forth in Section 2.6.
“Closing Exchange
Ratio” means the quotient obtained by dividing (a) the Closing Merger Consideration Shares by (b) the Fully Diluted
Company Shares.
“Closing Merger Consideration
Shares” means a number of shares of Parent Class A Common Stock equal to the sum of (a) 5,703,000 plus (b) the
product, rounded down to the nearest whole share, of (i) the amount, if any, by which the Company’s Debt for Borrowed Money
net of the Company’s Cash and Cash Equivalents at Closing is less than $14,970,000 and (ii) 0.10, minus (c) the product,
rounded down to the nearest whole share, of (i) the amount, if any, by which the Company’s Debt for Borrowed Money net of
the Company’s Cash and Cash Equivalents at Closing is greater than $14,970,000 and (ii) 0.10.
“Closing Per Share
Merger Consideration” means with respect to a share of Company Common Stock, a number of shares of Parent Common Stock equal
to the Closing Exchange Ratio.
“COBRA”
means collectively, the requirements of Sections 601 through 606 of ERISA and Section 4980B of the Code.
“Code” means
the Internal Revenue Code of 1986.
“Company”
has the meaning set forth in the preamble.
“Company Articles
of Incorporation” means the Articles of Incorporation of the Company filed with the Secretary of State of the State of Nevada
on May 17, 2022.
“Company Common Stock”
means the common stock, par value $0.0001 per share, of the Company.
“Company Consent”
has the meaning set forth in Section 4.8.
“Company Exclusively
Licensed IP” means all Company Licensed IP that is solely and exclusively licensed to the Company.
“Company Financial
Statements” has the meaning set forth in Section 4.9(a).
“Company Fundamental
Representations” means the representations and warranties of the Company set forth in Section 4.1 (Corporate Power
and Existence), Section 4.2 (Authorization), Section 4.4(a) (Non-Contravention), Section 4.5
(Capitalization), Section 4.7 (No Subsidiaries), and Section 4.26 (Finders’ Fees).
“Company Information
Systems” has the meaning set forth in Section 4.18(n).
“Company IP”
means, collectively, all Company Owned IP and Company Licensed IP.
“Company Licensed
IP” means all Intellectual Property owned by a third Person and licensed to the Company or that the Company otherwise has a
right to use.
“Company Option”
means each option (whether vested or unvested) to purchase Company Common Stock granted, and that remains outstanding, under the Equity
Incentive Plan.
“Company Owned IP”
means all Intellectual Property owned or purported to be owned by the Company, in each case, whether exclusively, jointly with another
Person or otherwise.
“Company Restricted
Stock Units” means the restricted stock units granted pursuant to the Equity Incentive Plan.
“Company Securities”
means the Company Common Stock and the Company Options.
“Company Securityholder”
means each Person who holds Company Securities.
“Company Stockholders”
means, at any given time, the holders of Company Common Stock.
“Company Stockholder
Approvals” has the meaning set forth in Section 4.2(b)
“Company Stockholder
Written Consent” has the meaning set forth in Section 7.3(a).
“Company Stockholder
Written Consent Deadline” has the meaning set forth in Section 7.3(a).
“Company Support Agreement”
has the meaning set forth in the recitals to this Agreement.
“Company
Transaction Expenses” means all fees, costs and expenses (including fees, costs and expenses of third-party advisors,
legal counsel, investment bankers, accounting firms or other representatives) of the Company reasonably incurred in connection with the
transactions contemplated herein.
“Company Warrant”
means each outstanding warrant of the Company to purchase Company Common Stock issued by the Company.
“Confidentiality Agreement”
means the Confidentiality Agreement dated as of July 12, 2022, by and between the Company and Parent.
“Consideration Spreadsheet”
means, collectively, the Form Consideration Spreadsheet and the Closing Consideration Spreadsheet.
“Contracts”
means the Lease and all other contracts, agreements, leases (including equipment leases, car leases and capital leases), licenses, Permits,
commitments, client contracts, statements of work, sales and purchase orders and similar instruments, oral or written, to which the Company
is a party or by which any of its respective properties or assets is bound.
“Control”
of a 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. “Controlled,” “Controlling”
and “under common Control with” have correlative meanings.
“Converted Restricted
Stock Unit” has the meaning set forth in Section 3.2(b).
“Converted Stock Option”
has the meaning set forth in Section 3.2(a)(i).
“Converted Warrant”
has the meaning set forth in Section 3.2(c).
“Converting Notes”
means the notes set forth on Schedule 1.1(a).
“Converting Noteholders”
means the Persons set forth on Schedule 1.1(b) or any successor in interest with respect to the applicable Converting Note
for which such Converting Noteholder is a holder as of the date of this Agreement.
“Copyleft Licenses”
means all licenses or other Contracts to Software that requires as a condition of use, modification, or distribution of such Software
that other Software or technology incorporated into, derived from, or distributed with such Software (i) be disclosed or distributed
in source code form, (ii) be licensed for the purpose of making derivative works or (iii) be redistributable at no or minimal
charge.
“Copyrights”
has the meaning set forth in the definition of “Intellectual Property.”
“Data Protection Laws”
means all applicable Laws in any applicable jurisdiction relating to the Processing, privacy, security, or protection of Personal Information,
including the EU General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA), and all regulations or guidance
issued thereunder.
“Debt for Borrowed
Money” means with respect to any Person, all obligations of such Person for borrowed money, including with respect thereto,
all interests, fees and costs; provided, however, that under no circumstances does Debt for Borrowed Money include any debt in respect
the Pre-Pripe Convertible Note.
“DGCL” has
the meaning set forth in Section 2.1.
“Dissenting Shares”
has the meaning set forth in Section 3.3.
“Domain Names”
has the meaning set forth in the definition of “Intellectual Property.”
“Earnout Period”
means the period beginning on the date that is one hundred eighty (180) days after the Closing Date and ending on the date that is the
fifth (5th) anniversary of the Closing Date.
“Earnout Recipients”
means, with respect to the occurrence of the applicable Earnout Trigger, (a) each holder of record of Company Common Stock as of
immediately prior to the Effective Time and (b) each Person who received one or more Converted Stock Options pursuant to Section 3.2(a)(i) below
who has exercised a Converted Stock Option for shares of Parent Common Stock prior to the date of the occurrence or deemed occurrence
of the applicable Earnout Trigger; provided, however, that for the avoidance of doubt “Earnout Recipients” does not include
the Pre-PIPE Convertible Noteholder.
“Earnout Shares”
has the meaning set forth in Section 3.6(a).
“Earnout Trigger”
has the meaning set forth in Section 3.6(a).
“Effective Time”
has the meaning set forth in Section 2.2.
“Employment Agreements”
means the Employment Agreement in substantially the same form attached hereto as Exhibit E to be entered into by the Company,
on the one hand, and each of Thomas P. Smith, William R. Smith III and James A. Barnes.
“EIP” has
the meaning set forth in Section 6.8.
“Enforceability Exceptions”
has the meaning set forth in Section 4.2(a).
“Environmental Laws”
shall mean all applicable Laws that prohibit, regulate or control any Hazardous Material or any Hazardous Material Activity, including
the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, the Resource Recovery and Conservation Act of 1976,
the Federal Water Pollution Control Act, the Clean Air Act, the Hazardous Materials Transportation Act and the Clean Water Act.
“Equity Incentive
Plan” means the Company’s 2022 Stock Incentive Plan, as amended.
“Equity Interest”
means, with respect to Parent, Merger Sub or any of their respective Affiliates (including, following the Effective Time, the Company
and any Subsidiary thereof), any capital stock of, or other ownership, membership, partnership, voting, joint venture, equity interest,
preemptive right, stock appreciation, phantom stock, profit participation or similar rights in, such Person or any indebtedness, securities,
options, warrants, call, subscription or other rights or entitlements of, or granted by, such Person or any of its Affiliates that are
convertible into, or are exercisable or exchangeable for, or give any person any right or entitlement to acquire any such capital stock
or other ownership, partnership, voting, joint venture, equity interest, preemptive right, stock appreciation, phantom stock, profit
participation or similar rights, in all cases, whether vested or unvested, of such Person or any of its Affiliates or any similar security
or right that is derivative or provides any economic benefit based, directly or indirectly, on the value or price of any such capital
stock or other ownership, partnership, voting, joint venture, equity interest, preemptive right, stock appreciation, phantom stock, profit
participation or similar rights, in all cases, whether vested or unvested.
“ERISA”
means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate”
means each entity, trade or business that is, or was at the relevant time, a member of a group described in Section 414(b) or
(c) (o) of the Code that includes the Company.
“Exchange Act”
means the Securities Exchange Act of 1934.
“Excluded Matter”
means any one or more of the following: (a) general economic or political conditions; (b) conditions generally affecting the
industries in which such Person or its Subsidiaries operates; (c) any changes in financial, banking or securities markets in general,
including any disruption thereof and any decline in the price of any security or any market index or any change in prevailing interest
rates; (d) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (e) (i) any
changes in applicable Laws (including in connection with the COVID-19 pandemic) or accounting rules (including U.S. GAAP) or the
enforcement, implementation or interpretation thereof, or (ii) in the case of Parent, new pronouncements by the SEC or other U.S.
federal regulators with respect to prior accounting rules, including changes to, and the restatement of Parent’s audited financial
statements as of and for the fiscal year ended December 31, 2020 or for future periods, as a result of the SEC pronouncement on
April 12, 2021 relating to the accounting of warrants (the “SEC Warrant Pronouncement”); (f) the announcement,
pendency or completion of the transactions contemplated by this Agreement; (g) any natural or man-made disaster, acts of God or
pandemics, including the COVID-19 pandemic, or the worsening thereof; or (h) any failure by a party to meet any internal or published
projections, forecasts or revenue or earnings predictions (it being understood that the facts or occurrences giving rise or contributing
to such failure that are not otherwise an Excluded Matter may be taken into account in determining whether there has been a Material
Adverse Effect); provided that the exclusion set forth in this clause (h) shall not apply with respect to the fraud of either party;
provided further that the exclusions provided in the foregoing clauses (a) through (d), clause (e) and clause (g) shall
not apply to the extent that Parent and Merger Sub, taken as a whole, on the one hand, or the Company, taken as a whole, on the other
hand, is disproportionately affected by any such exclusions or any change, event or development to the extent resulting from any such
exclusions relative to all other similarly situated companies that participate in the industry in which they operate.
“Extension Fee”
has the meaning set forth in Section 6.9(e).
“Extension Proposal”
has the meaning set forth in Section 6.9(a).
“Extension Proxy Statement”
has the meaning set forth in Section 6.9(a).
“Foreign Corrupt Practices
Act” has the meaning set forth in Section 4.17.
“Form Consideration
Spreadsheet” has the meaning set forth in Section 3.5(a).
“Form S-4”
has the meaning set forth in Section 6.5(a).
“Fully Diluted Company
Shares” means, without duplication, (a) all shares of Company Common Stock that are issued and outstanding immediately
prior to the Effective Time (assuming the exercise, conversion or exchange of options, warrants or convertible or exchangeable securities,
including Company Restricted Stock Units or Company Warrants, to Company Common Stock other than Company Options), plus (b) the
aggregate number of Rollover Option Shares with respect to Company Options; plus (c) all shares of Company Common Stock issuable
upon conversion, exercise or exchange of any other securities of the Company convertible into or exchangeable or exercisable for shares
of Company Common Stock, expressed, in the case of the foregoing clauses (b) and (c) as a fully-diluted and as converted to
Company Common Stock basis. Notwithstanding anything to the contrary, “Fully Diluted Company Shares” shall not include any
shares of Company Common Stock issuable upon conversion of the Pre-PIPE Convertible Note nor any shares of Company Common Stock issuable
upon conversion of any convertible note not deemed a “Converting Note”.
“Hazardous Material”
shall mean any material, emission, chemical, substance or waste that has been designated by any Authority to be radioactive, toxic, hazardous,
a pollutant or a contaminant.
“Hazardous Material
Activity” shall mean the transportation, transfer, recycling, storage, use, treatment, manufacture, removal, remediation, release,
exposure of others to, sale, labeling, or distribution of any Hazardous Material or any product or waste containing a Hazardous Material,
or product manufactured with ozone depleting substances, including any required labeling, payment of waste fees or charges (including
so-called e-waste fees) and compliance with any recycling, product take-back or product content requirements.
“Indebtedness”
means with respect to any Person, without duplication, (a) Debt for Borrowed Money of such Person, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or
other title retention agreements relating to property purchased by such Person, (d) all obligations of such Person issued or assumed
as the deferred purchase price of property or services (other than accounts payable to creditors for goods and services incurred in the
ordinary course of business consistent with past practices), (e) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien or security interest on property owned
or acquired by such Person, whether or not the obligations secured thereby have been assumed, (f) all obligations of such Person
under leases required to be accounted for as capital leases under U.S. GAAP, (g) all guarantees by such Person of the Indebtedness
of another Person, (h) all liability of such Person with respect to any hedging obligations, including interest rate or currency
exchange swaps, collars, caps or similar hedging obligations, (i) any unfunded or underfunded liabilities pursuant to any retirement
or nonqualified deferred compensation plan or arrangement, and any earned but unpaid compensation (including salary, bonuses and paid
time off), other than earned but unpaid compensation outstanding as of the end of the current monthly period, (j) any obligations
that the Person has elected to defer pursuant to the CARES Act or as a result of COVID-19, including any deferred rent or deferred Taxes,
and any liabilities associated with any loans or other stimulus packages received by the Person under the CARES Act and applicable rules and
regulations thereunder, and (k) any agreement to incur any of the same.
“Intellectual Property”
means all of the worldwide intellectual property rights and proprietary rights associated with any of the following, whether registered,
unregistered or registrable, to the extent recognized in a particular jurisdiction: discoveries, inventions, ideas, technology, know-how,
trade secrets, and source code in any Software, in each case whether or not patentable or copyrightable (including proprietary or confidential
information, systems, methods, processes, procedures, practices, algorithms, formulae, techniques, knowledge, results, protocols, models,
designs, drawings, specifications, materials, technical data or information, and other information related to the development, marketing,
pricing, distribution, cost, sales and manufacturing) (collectively, “Trade Secrets”); trade names, trademarks, service
marks, trade dress, product configurations, other indications of origin, registrations thereof or applications for registration therefor,
and all rights arising under common law, together with the goodwill associated with the foregoing (collectively, “Trademarks”);
patents, patent applications, utility models, industrial designs, supplementary protection certificates, and certificates of inventions,
including all re-issues, continuations, divisionals, continuations-in-part, re-examinations, renewals, counterparts, extensions, and
validations thereof (collectively, “Patents”); works of authorship, Software, copyrights, copyrightable materials,
copyright registrations and applications for copyright registration (collectively, “Copyrights”); domain names and
URLs (collectively, “Domain Names”), social media accounts, and other intellectual property, and all embodiments and
fixations thereof and related documentation and registrations and all additions, improvements and accessions thereto.
“IP Contracts”
means, collectively, any and all Contracts to which any member of the Company is a party or by which any of its respective properties
or assets is bound, in any case under which the Company (i) is granted a right (including option rights, rights of first offer,
first refusal, first negotiation, etc.) in or to any Intellectual Property of a third Person, (ii) grants a right (including
option rights, rights of first offer, first refusal, first negotiation, etc.) to a third Person in or to any Intellectual Property
owned or purported to be owned by the Company or (iii) has entered into an agreement not to assert or sue with respect to any Intellectual
Property (including settlement agreements and co-existence arrangements), in each case other than (A) “shrink wrap”
or other licenses for generally commercially available software (including Publicly Available Software) or hosted services, (B) customer,
distributor or channel partner Contracts on Company’s standard forms without material change, (C) Contracts with the Company’s
employees or contractors on Company’s standard forms, and (D) customary non-disclosure agreements entered into in the ordinary
course of business consistent with past practices (subparts (A)-(D) collectively, the “Standard Contracts”).
“IPO” means
the initial public offering of Parent pursuant to a prospectus dated December 16, 2021.
“Key Personnel”
means the persons whose names are set forth on Schedule 1.1(c) attached hereto.
“Knowledge of the
Company” or “to the Company’s Knowledge” means the actual knowledge, after reasonable inquiry, of
Thomas P. Smith, William R. Smith III and James A. Barnes.
“Knowledge of Parent”
or “to Parent’s Knowledge” means the actual knowledge, after reasonable inquiry, of Morgan Callagy and Daniel
Neukomm.
“Law” means
any domestic or foreign, federal, state, municipality or local law, statute, ordinance, code, rule, or regulation.
“Leased Real Property”
means all leasehold or subleasehold estates and other rights to use or occupy any land, buildings, structures, improvements, fixtures
or other interest in Real Property held by the Company.
“Leases”
means all leases, subleases, licenses, concessions and other Contracts pursuant to which the Company holds any Leased Real Property (along
with all amendments, modifications and supplements thereto).
“Lien” means,
with respect to any property or asset, any mortgage, lien, pledge, charge, claim, security interest or encumbrance of any kind in respect
of such property or asset, and any conditional sale or voting agreement or proxy, including any agreement to give any of the foregoing.
“Lock-Up Agreement”
means the agreement, in substantially the form attached hereto as Exhibit F, restricting the sale, transfer or other disposition
of the shares of Parent Common Stock received by certain of the Company Securityholders at the Closing in connection with the Merger.
“Material Adverse
Effect” means any fact, effect, event, development, change, state of facts, condition, circumstance or occurrence (an “Effect”)
that, individually or together with one or more other contemporaneous Effect, (i) has or would reasonably be expected to have a
materially adverse effect on the financial condition, assets, liabilities, business or results of operations of the Company, on the one
hand, or on Parent and Merger Sub, on the other hand, in each case, taken as a whole; or (ii) prevents or materially impairs or
would reasonably be expected to prevent or materially impair the ability of the Company Securityholders and the Company, on the one hand,
or on Parent and Merger Sub, on the other hand to consummate the Merger and the other transactions contemplated by this Agreement in
accordance with the terms and conditions of this Agreement; provided, however, that a Material Adverse Effect shall
not be deemed to include Effects (and solely to the extent of such Effects) resulting from an Excluded Matter.
“Material Contracts”
has the meaning set forth in Section 4.15(a).
“Merger”
has the meaning set forth in the recitals to this Agreement.
“Merger Consideration
Shares” means the Closing Merger Consideration Shares.
“Merger Sub”
has the meaning set forth in the Preamble.
“Merger Sub Common
Stock” has the meaning set forth in Section 5.10(b).
“Minority
Investment” means, with respect to any Person, any corporation, partnership, trust, limited liability company or other entity
in which such Person (and/or one or more Subsidiaries of such Person) holds shares or other ownership interests representing (a) fifty
percent (50%) or less of the voting power of all outstanding shares or ownership interests of such entity; or (b) the right to receive
fifty percent (50%) or less of the net assets of such entity available for distribution to the holders of outstanding shares or ownership
interests upon a liquidation or dissolution of such entity.
“Nasdaq”
means the Nasdaq Stock Market, LLC.
“Nevada Merger Act”
means Chapter 92A of the Nevada Revised Statutes (NRS 92.A.005 et seq.).
“Offer Documents”
has the meaning set forth in Section 6.5(a).
“Order”
means any decree, order, judgment, writ, award, injunction, stipulation, determination, award, rule or consent of or by an Authority.
“OSHA” has
the meaning set forth in Section 4.20(k).
“Other Filings”
means any filings to be made by Parent required under the Exchange Act, Securities Act or any other United States federal, foreign or
blue sky laws, other than the SEC Statement and the other Offer Documents.
“Outside Closing Date”
has the meaning set forth in Section 10.1(a).
“Owned Real Property”
means all Real Property owned by the Company.
“Parent”
has the meaning set forth in the preamble.
“Parent Board Recommendation”
has the meaning set forth in Section 5.13(a).
“Parent Class A
Common Stock” means the Class A Common Stock of Parent, par value $0.0001 per share.
“Parent Class B
Common Stock” means the Class B Common Stock of Parent, par value $0.0001 per share.
“Parent Common Stock”
means, the Parent Class A Common Stock and Parent Class B Common Stock.
“Parent Financial
Statements” has the meaning set forth in Section 5.14(c).
“Parent Fundamental
Representations” means the representations and warranties of Parent set forth in Section 5.1 (Corporate Existence
and Power), Section 5.2 (Corporate Authorization), Section 5.8 (Finders’ Fees) and Section 5.10
(Capitalization).
“Parent Parties”
has the meaning set forth in Article V.
“Parent Preferred
Stock” means the preferred stock of Parent, par value $0.0001 per share.
“Parent Private Warrant”
means each warrant issued to the Sponsor in a private placement at the time of the consummation of the IPO, entitling the holder thereof
to purchase one share of Parent Class A Common Stock at an exercise price of $11.50 per whole share.
“Parent Proposals”
has the meaning set forth in Section 6.5(e).
“Parent Public Warrant”
means each warrant issued as part of a Parent Unit.
“Parent Redemption
Amount” has the meaning set forth in Section 6.6.
“Parent SEC Documents”
has the meaning set forth in Section 5.14(a).
“Parent Stockholder
Approval” has the meaning set forth in Section 5.2.
“Parent Stockholder
Meeting” has the meaning set forth in Section 6.5(a).
“Parent Support Agreement”
has the meaning set forth in the recitals to this Agreement.
“Parent Transaction
Expenses” means all fees, costs and expenses (including, but not limited to, fees, costs and expenses of the tail policy and
other insurance obtain by Parent pursuant to Section 8.3(d) and of third-party advisors, legal counsel, investment bankers
or other representatives) of Parent incurred or payable by Parent or Sponsor in connection with this Agreement and the transactions contemplated
herein, including expenses related to those items set forth in Schedule 1.1(d).
“Parent Unit”
means each unit of Parent issued in the IPO composed of (a) one share of Parent Class A Common Stock and (b) one-half
(1/2) of one Parent Warrant upon the consummation of an initial business combination pursuant to Parent’s organizational or constituent
documents and Parent’s public filings with the SEC.
“Parent Warrant”
means each Parent Private Warrant and Parent Public Warrant.
“Patents”
has the meaning set forth in the definition of “Intellectual Property.”
“Per Share Merger
Consideration” means with respect to a share of Company Common Stock, a number of shares of Parent Class A Common Stock
equal to the Closing Exchange Ratio.
“Permit”
means each license, franchise, permit, order, approval, consent or other similar authorization, including Regulatory Authorizations,
required to be obtained and maintained by the Company under applicable Law to carry out or otherwise affecting, or relating in any way
to, the Business.
“Permitted Liens”
means (a) mechanic’s, materialmen’s and similar Liens arising in the ordinary course of business consistent with past
practice with respect to any amounts (i) not yet due and payable or which are being contested in good faith through appropriate
proceedings and (ii) for which adequate accruals or reserves have been established on the Company Financial Statements in accordance
with GAAP, (b) Liens for Taxes (i) not yet due and payable or which are being contested in good faith through appropriate proceedings
and (ii) for which adequate accruals or reserves have been established on the Company Financial Statements in accordance with GAAP,
(c) defects or imperfections of title, easements, encroachments, covenants, rights-of-way, conditions, matters that would be apparent
from a physical inspection or current, accurate survey of such real property, restrictions and other similar charges or encumbrances
that do not materially impair the value or materially interfere with the present use of the leased Real Property, (d) with respect
to any leased Real Property (i) the interests and rights of the respective lessors with respect thereto, including any statutory
landlord liens and any Lien thereon, (ii) any Lien permitted under any Lease and (iii) any Liens encumbering the real property
of which the leased Real Property is a part, (e) zoning, building, entitlement and other land use and Environmental Laws promulgated
by any Governmental Authority that do not materially interfere with the current use of, or materially impair the value of, the leased
Real Property, (f) ordinary course purchase money Liens and Liens securing rental payments under operating or capital lease arrangements
for amounts not yet due or payable, and (g) all other Liens that do not, individually or in the aggregate, materially impair the
use, occupancy or value of the applicable assets of the Company.
“Person”
means an individual, corporation, partnership (including a general partnership, limited partnership or limited liability partnership),
limited liability company, association, trust or other entity or organization, including a government, domestic or foreign, or political
subdivision thereof, or an agency or instrumentality thereof.
“Personal Information”
means (a) any data or information Processed by or on behalf of the Company that, alone or in combination with other data or information
relates to an individual natural Person (including any part of such Person’s name, physical address, telephone number, email address,
financial account number or credit card number, government issued identifier (including social security number and driver’s license
number), user identification number and password, billing and transactional information, medical, health or insurance information, date
of birth, educational or employment information, vehicle identification number, IP address, cookie identifier, or any other number
or identifier that identifies or relates to an individual natural Person, or such Person’s vehicle, browser or device); or (b) or
any other data or information that constitutes personal data, personal health information, protected health information, personally identifiable
information, personal information or similar defined term under any Data Protection Law.
“PIPE Proceeds”
means an amount equal to the net cash proceeds received or to be received upon the consummation of the PIPE Investment.
“Plan” means
each “employee benefit plan” within the meaning of Section 3(3) of ERISA and all other compensation and benefits
plans, policies, programs, arrangements or payroll practices, but excluding multiemployer plans within the meaning of Section 3(37)
of ERISA, and each other stock purchase, stock option, restricted stock, severance, retention, employment (other than any employment
offer letter in such form as previously provided to Parent that is terminable “at will” without any contractual obligation
on the part of the Company to make any severance, termination, change of control, or similar payment), consulting, change-of-control,
bonus, incentive, deferred compensation, employee loan, fringe benefit and other benefit plan, agreement, program, policy, commitment
or other arrangement, whether or not subject to ERISA (including any related funding mechanism now in effect or required in the future),
whether formal or informal, oral or written, in each case, that is sponsored, maintained, contributed or required to be contributed to
by the Company, or under which the Company has any current or potential liability.
“Pre-PIPE Convertible
Note” means that certain convertible promissory note set forth on Schedule 1.1(e).
“Pre-PIPE Conversion
Shares” has the meaning set forth in Section 3.2(d)(ii).
“Pre-PIPE Conversion
Warrant” has the meaning set forth in Section 3.2(d)(ii).
“Pre-PIPE Convertible
Noteholder” means the Person set forth on Schedule 1.1(f) or any successor holder to the Pre-PIPE Convertible Note.
“Process,”
“Processed” or “Processing” means any operation or set of operations performed upon Personal Information
or sets of Personal Information, whether or not by automated means, such as collection, recording, organization, structuring, storage,
adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment
or combination, restriction, erasure, or destruction.
“Prospectus”
has the meaning set forth in the recitals.
“Proxy Statement”
has the meaning set forth in Section 6.5(a).
“Publicly Available
Software” means each of any Software that contains, or is derived in any manner (in whole or in part) from, any Software that
is distributed as free software, “copyleft,” open source software (e.g. Linux), or under similar licensing and distribution
models, including but not limited to any of the following: (A) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL),
(B) the Artistic License (e.g., PERL), (C) the Mozilla Public License, (D) the Netscape Public License, (E) the Sun
Community Source License (SCSL), (F) the Sun Industry Source License (SISL) and (G) the Apache Server License, including for
the avoidance of doubt all Software licensed under a Copyleft License.
“Real Property”
means, collectively, all real properties and interests therein (including the right to use), together with all buildings, fixtures, trade
fixtures, plant and other improvements located thereon or attached thereto; all rights arising out of use thereof (including air, water,
oil and mineral rights); and all subleases, franchises, licenses, permits, easements and rights-of-way which are appurtenant thereto.
“Registered Exclusively
Licensed IP” means all Company Exclusively Licensed IP that is the subject of a registration or an application for registration,
including issued patents and patent applications.
“Registered IP”
means collectively, all Registered Owned IP and Registered Exclusively Licensed IP.
“Registered Owned
IP” means all Intellectual Property constituting Company Owned IP or filed in the name of the Company, and in each instance
is the subject of a registration or an application for registration, including issued patents and patent applications.
“Representatives”
means a party’s officers, directors, Affiliates, managers, consultant, employees, representatives and agents.
“Restrictive Covenant
Agreement” means the Restrictive Covenant Agreements in substantially the form attached hereto as Exhibit G to
be entered into by the Company and each of Thomas P. Smith, William R. Smith III and James A. Barnes.
“Rollover Option Shares”
means the aggregate number of shares of Company Common Stock issuable upon exercise of all Company Options (whether Vested Company Options
or Unvested Company Options).
“S-4 Effective Date”
has the meaning set forth in Section 6.5(c).
“Sarbanes-Oxley Act”
means the Sarbanes-Oxley Act of 2002.
“SBA” means
the Small Business Administration.
“SEC” means
the Securities and Exchange Commission.
“SEC Statement”
means the Form S-4, including the Proxy Statement, whether in preliminary or definitive form, and any amendments or supplements
thereto.
“Securities Act”
means the Securities Act of 1933.
“Securityholder Representative”
has the meaning set forth in the preamble.
“Securityholder Representative
Authorized” has the meaning set forth in Section 11.18.
“Software”
means computer software, programs, and databases (including development tools, library functions, and compilers) in any form, including
in or as Internet Web sites, web content, links, source code, object code, operating systems, database management code, utilities, graphical
user interfaces, menus, images, icons, forms, methods of processing, software engines, platforms, and data formats, together with all
versions, updates, corrections, enhancements and modifications thereof, and all related specifications, documentation, developer notes,
comments, and annotations.
“Sponsor”
means Revelstone Capital LLC, a Delaware limited liability company.
“Standard Contracts”
has the meaning set forth in the definition of IP Contracts.
“Subsidiary”
means, with respect to any Person, each entity of which at least fifty percent (50%) of the capital stock or other equity or voting securities
are Controlled or owned, directly or indirectly, by such Person.
“Surviving Corporation”
has the meaning set forth in the recitals to this Agreement.
“Tangible Personal
Property” means all tangible personal property and interests therein, including machinery, computers and accessories, furniture,
office equipment, communications equipment, automobiles, laboratory equipment and other equipment owned or leased by the Company and
other tangible property.
“Tax Return”
means any return, information return, declaration, claim for refund or credit, report or any similar statement, and any amendment thereto,
including any attached schedule and supporting information, whether on a separate, consolidated, combined, unitary or other basis, that
is filed or required to be filed with any Taxing Authority in connection with the determination, assessment, collection or payment of
a Tax or the administration of any Law relating to any Tax.
“Tax(es)”
means any U.S. federal, state or local or non-U.S. tax, charge, fee, levy, custom, duty, deficiency, or other assessment of any kind
or nature imposed by any Taxing Authority (including any income (net or gross), gross receipts, profits, windfall profit, sales, use,
goods and services, ad valorem, franchise, license, withholding, employment, social security, workers compensation, unemployment compensation,
employment, payroll, transfer, excise, import, real property, personal property, intangible property, occupancy, recording, minimum,
alternative minimum), together with any interest, penalty, additions to tax or additional amount imposed with respect thereto.
“Taxing Authority”
means the Internal Revenue Service and any other Authority responsible for the collection, assessment or imposition of any Tax or the
administration of any Law relating to any Tax.
“Trade Secrets”
has the meaning set forth in the definition of “Intellectual Property.”
“Trademarks”
has the meaning set forth in the definition of “Intellectual Property.”
“Trading Day”
means (a) for so long as the Parent Common Stock is listed or admitted for trading on Nasdaq or any other national securities exchange,
days on which such securities exchange is open for business; (b) when and if the Parent Common Stock is quoted on Nasdaq or any
similar system of automated dissemination of quotations of securities prices, days on which trades may be made on such system; or (c) if
the Parent Common Stock is not listed or admitted to trading on any national securities exchange or quoted on Nasdaq or similar system,
days on which the Common Stock is traded regular way in the over-the- counter market and for which a closing bid and a closing asked
price for the Common Stock are available.
“Transaction Litigation”
has the meaning set forth in Section 8.1(c).
“Treasury Regulations”
means the regulations promulgated by the United States Department of the Treasury pursuant to and in respect of provisions of the Code.
All references herein to Sections of the Treasury Regulations shall include any corresponding provision or provisions of succeeding,
similar, substitute, proposed, temporary, or final Treasury Regulations.
“Trust Account”
has the meaning set forth in Section 5.12.
“Trust Agreement”
has the meaning set forth in Section 5.12.
“Trust Fund”
has the meaning set forth in Section 5.12.
“Trustee”
has the meaning set forth in Section 5.12.
“Unaudited Financial
Statements” has the meaning set forth in Section 4.9(a).
“U.S. GAAP”
means U.S. generally accepted accounting principles, consistently applied.
“Unvested Company
Option” means each Company Option outstanding immediately prior to the Effective Time that is not a Vested Company Option.
“Vested Company Option”
means each Company Option outstanding immediately prior to the Effective Time that is vested in accordance with its terms as of immediately
prior to the Effective Time or will vest solely as a result of the consummation of the Merger.
“VWAP” means,
for any security as of any date(s), the dollar volume-weighted average price for such security on the principal securities exchange or
securities market on which such security is then traded during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00
p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average) or, if the foregoing does
not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board
for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported
by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of
the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported by OTC Markets
Group Inc. If the VWAP cannot be calculated for such security on such date(s) on any of the foregoing bases, the VWAP of such security
on such date(s) shall be the fair market value as reasonably determined in good faith by a majority of the disinterested independent
directors of the board of directors (or equivalent governing body) of the applicable issuer. All such determinations shall be appropriately
adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
1.2 Construction.
(a) References
to particular sections and subsections, schedules, and exhibits not otherwise specified are cross-references to sections and subsections,
schedules, and exhibits of this Agreement. Captions are not a part of this Agreement, but are included for convenience, only.
(b) The
words “herein,” “hereof,” “hereunder,” and words of similar import refer to this Agreement as a whole
and not to any particular provision of this Agreement; and, unless the context requires otherwise, “party” means a party
signatory hereto.
(c) Any
use of the singular or plural, or the masculine, feminine or neuter gender, includes the others, unless the context otherwise requires;
the word “including” means “including without limitation”; the word “or” means “and/or”;
the word “any” means “any one, more than one, or all”; and, unless otherwise specified, any financial or accounting
term has the meaning of the term under United States generally accepted accounting principles as consistently applied heretofore by the
Company. Any reference in this Agreement to a Person’s directors shall include any member of such Person’s governing body
and any reference in this Agreement to a Person’s officers shall include any Person filling a substantially similar position for
such Person. Any reference in this Agreement or any Additional Agreement to a Person’s shareholders or stockholders shall include
any applicable owners of the equity interests of such Person, in whatever form.
(d) Unless
otherwise specified, any reference to any agreement (including this Agreement), instrument, or other document includes all schedules,
exhibits, or other attachments referred to therein, and any reference to a statute or other law means such law as amended, restated,
supplemented or otherwise modified from time to time and includes any rule, regulation, ordinance or the like promulgated thereunder,
in each case, as amended, restated, supplemented or otherwise modified from time to time.
(e) Any
reference to a numbered schedule means the same-numbered section of the disclosure schedule. Any reference in a schedule contained in
the disclosure schedules delivered by a party hereunder shall be deemed to be an exception to (or, as applicable, a disclosure for purposes
of) the applicable representations and warranties (or applicable covenants) that are contained in the section or subsection of this Agreement
that corresponds to such schedule and any other representations and warranties of such party that are contained in this Agreement to
which the relevance of such item thereto is reasonably apparent on its face. Nothing in the disclosure schedules constitutes an admission
of any liability or obligation of the disclosing party to any third party or an admission to any third party, including any Authority,
against the interest of the disclosing party, including any possible breach of violation of any Contract or Law. Summaries of any written
document in the disclosure schedules do not purport to be complete and are qualified in their entirety by the written document itself.
(f) If
any action is required to be taken or notice is required to be given within a specified number of days following a specific date or event,
the day of such date or event is not counted in determining the last day for such action or notice. If any action is required to be taken
or notice is required to be given on or before a particular day which is not a Business Day, such action or notice shall be considered
timely if it is taken or given on or before the next Business Day.
(g) To
the extent that any Contract, document, certificate or instrument is represented and warranted to by the Company to be given, delivered,
provided or made available by the Company, such Contract, document, certificate or instrument shall be deemed to have been given, delivered,
provided and made available to Parent or its Representatives, if such Contract, document, certificate or instrument shall have been posted
not later than two (2) Business Days prior to the date of this Agreement to the electronic data site maintained on behalf of the
Company for the benefit of the Parent and its Representatives and the Parent and its Representatives have been given access to the electronic
folders containing such information.
Article II
MERGER
2.1 Merger.
Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the General Corporation Law of the State
of Delaware (the “DGCL”) and the Nevada Merger Act, at the Effective Time, (a) Merger Sub shall be merged with
and into the Company, (b) the separate corporate existence of Merger Sub shall thereupon cease, and the Company shall be the Surviving
Corporation, which shall remain a Nevada corporation, and (c) the Surviving Corporation shall become a wholly-owned Subsidiary of
Parent, which shall change its name to “Set Jet, Inc.”
2.2 Merger
Effective Time. Subject to the provisions of this Agreement, at the Closing, the Company shall file (a) with the Secretary of
State of the State of Delaware the certificate of merger in substantially the form attached hereto as Exhibit H, executed
in accordance with the relevant provisions of the DGCL (the “Certificate of Merger”) and (b) with the Secretary
of State of the State of Nevada the articles of merger in substantially the form attached hereto as Exhibit I, executed in
accordance with the relevant provisions of the Nevada Merger Act (the “Articles of Merger”). The Merger shall become
effective upon the filing of the Certificate of Merger and Articles of Merger or at such later time as is agreed to by the parties and
specified in the Certificate of Merger and Articles of Merger (the time at which the Merger becomes effective is herein referred to as
the “Effective Time”).
2.3 Effect
of the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Certificate of Merger,
the Articles of Merger and the applicable provisions of the DGCL and the Nevada Merger Act. Without limiting the generality of the foregoing,
and subject thereto, at the Effective Time, all the assets, property, rights, privileges, immunities, powers and franchises of the Company
and Merger Sub shall vest in the Surviving Corporation and all debts, liabilities and duties of the Company and Merger Sub shall become
the debts, liabilities and duties of the Surviving Corporation.
2.4 U.S.
Tax Treatment. For U.S. federal income tax purposes, the Merger is intended to constitute a tax-deferred “reorganization”
within the meaning of Section 368(a) of the Code. The parties to this Agreement hereby (i) adopt this Agreement insofar
as it relates to the Merger as a “plan of reorganization” within the meaning of Treasury Regulations Section 1.368-2(g),
(ii) agree to file and retain such information as shall be required under Treasury Regulations Section 1.368-3, and (iii) agree
to file all Tax and other informational returns on a basis consistent with such characterization. Notwithstanding the foregoing or anything
else to the contrary contained in this Agreement, but subject to the covenants in Section 8.5(a), the parties acknowledge
and agree that, other than the representations set forth in Sections 4.24(e) and 5.20(e) hereof, no party is
making any representation or warranty as to the qualification of the Merger as a tax-deferred reorganization under Section 368(a) of
the Code or as to the effect, if any, that any transaction consummated on, after or prior to the Effective Time has or may have on any
such reorganization status. Each of the parties acknowledges and agrees that each such party (A) has had the opportunity to obtain
independent legal and tax advice with respect to the transactions contemplated by this Agreement and (B) is responsible for paying
its own Taxes, including any adverse Tax consequences that may result if the Merger is determined not to qualify as a tax-deferred reorganization
under Section 368(a) of the Code.
2.5 Articles
of Incorporation; Bylaws.
(a) The
Company Articles of Incorporation as in effect immediately prior to the Effective Time shall, in accordance with the terms thereof and
the Nevada Merger Act, be amended and restated in its entirety as set forth in the exhibit to the Certificate of Merger and Articles
of Merger, and, as so amended and restated, shall be the articles of incorporation of the Surviving Corporation until duly amended in
accordance with the terms thereof and the Nevada Merger Act.
(b) The
Bylaws of the Company as in effect immediately prior to the Effective Time shall be amended at the Effective Time to read in its entirety
as the Bylaws of Merger Sub as in effect immediately prior to the Effective Time, until thereafter amended in accordance with the terms
thereof, the articles of incorporation of the Surviving Corporation and applicable Law.
2.6 Closing.
Unless this Agreement is earlier terminated in accordance with Article X, the parties shall effect the closing of the Merger
(the “Closing”) at 10:00 a.m. New York time, on the second (2nd) Business Day after the satisfaction
or duly provided waiver (to the extent permitted by applicable law) of the conditions set forth in Article IX or at such
other time, date and location as Parent and Company agree in writing. The parties may effect the Closing via electronic means. The date
on which the Closing actually occurs is hereinafter referred to as the “Closing Date”.
2.7 Directors
and Officers of Surviving Corporation.
(a) At
the Effective Time, the initial directors of the Surviving Corporation shall consist of the same persons serving on the Company’s
Board of Directors as of immediately prior to the Effective Time, other than those directors who have resigned as contemplated by Section 9.2(k),
in accordance with Section 2.8.
(b) At
the Effective Time, the officers of the Company shall become the initial officers of the Surviving Corporation and shall hold office
until their respective successors are duly elected or appointed and qualified, or until their earlier death, resignation or removal.
2.8 Directors
of Parent. At the Effective Time, Parent’s Board of Directors will consist of up to six (6) directors. Upon and after
the Closing Date, the Parent’s board of directors shall consist of up to six (6) directors, a majority of whom shall be independent
directors under Nasdaq rules requiring a majority of directors to be independent, with one (1) of such independent directors
to be designated by Sponsor prior to Closing who is approved by the Company, which such consent will not be unreasonably withheld. The
remainder of the directors, both independent and not independent, shall be designated by the Company prior to the Closing.
2.9 Taking
of Necessary Action; Further Action. If, at any time after the Closing, any further action is necessary or desirable to carry out
the purposes of this Agreement and to vest the Surviving Corporation with full right, title and interest in, to and under, or possession
of, all assets, property, rights, privileges, powers and franchises of the Company and Merger Sub, the officers and directors of the
Surviving Corporation are fully authorized in the name and on behalf of the Company and Merger Sub, to take all lawful action necessary
or desirable to accomplish such purpose or acts, so long as such action is not inconsistent with this Agreement.
2.10 No
Further Ownership Rights in Company Common Stock. All Merger Consideration Shares issued or issuable in exchange for shares of Company
Common Stock hereunder, or upon the exercise of the appraisal rights described in Section 3.3, shall be deemed to have been
issued or issuable in full satisfaction of all rights pertaining to such shares of Company Common Stock, and from and after the Effective
Time there shall be no further registration of transfers of Company Shares on the stock transfer books of the Surviving Corporation.
If, after the Effective Time, certificates formerly representing shares of Company Common Stock (each, a “Company Stock Certificate”)
are presented to the Surviving Corporation, subject to the terms and conditions set forth herein, they shall be cancelled and exchanged
for the Merger Consideration Shares provided for, and in accordance with the procedures set forth, in Article III.
Article III
EFFECT OF THE MERGER
3.1 Effect
of the Merger on Company Common Stock. At the Effective Time, as a result of the Merger and without any action on the part of Parent,
Merger Sub, the Company or the holders of any shares of capital stock of any of them:
(a) Cancellation
of Certain Shares of Company Common Stock. Each share of Company Common Stock, if any, that is owned by Parent or Merger Sub (or
any other Subsidiary of Parent) or the Company (or any of its Subsidiaries) (as treasury stock or otherwise), will automatically be cancelled
and retired without any conversion thereof and will cease to exist, and no consideration will be delivered in exchange therefor.
(b) Conversion
of Shares of Company Common Stock. Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time
(other than any such shares of Company Common Stock cancelled pursuant to Section 3.1(a) and any Dissenting Shares,
and including such shares of Company Common Stock that are issued to the Converting Noteholders pursuant to Section 3.2(d)(i))
shall, in accordance with the Company Articles of Incorporation and subject to this Agreement, be exchanged for and otherwise converted
into the right to receive the applicable Closing Per Share Merger Consideration.
(c) Conversion
of Merger Sub Capital Stock. Each share of common stock, par value $0.0001 per share, of Merger Sub issued and outstanding immediately
prior to the Effective Time shall be converted into and become one newly issued, fully paid and nonassessable share of common stock of
the Surviving Corporation.
3.2 Treatment
of Company Options. Company Restricted Stock and Company Warrants.
(a) Treatment
of Company Options.
(i) Prior
to the Closing, the Company’s Board of Directors (or, if appropriate, any committee thereof administering the Equity Incentive
Plan) shall adopt such resolutions or take such other actions as may be required to adjust the terms of all Vested Company Options and
Unvested Company Options as necessary to provide that, at the Effective Time, each Company Option shall be converted into an option (a
“Converted Stock Option”) to acquire, subject to substantially the same terms and conditions as were applicable under
such Company Option, the number of shares of Parent Class A Common Stock (rounded up to the nearest whole share), determined by
multiplying the number of shares of Company Common Stock subject to such Company Option as of immediately prior to the Effective Time
by the Closing Exchange Ratio, at an exercise price per share of Parent Class A Common Stock (rounded down to the nearest whole
cent) equal to (x) the exercise price per share of Company Common Stock of such Company Option divided by (y) the Closing Exchange
Ratio, in each case as set forth in the Closing Consideration Spreadsheet.
(ii) Parent
shall at all times reserve the net shares of Parent Class A Common Stock issuable in the aggregate upon exercise of all Converted
Stock Options then outstanding, and such shares shall not be delivered to, or constitute part of, the Exchange Fund established pursuant
to Section 3.4(a). Annually, and on the applicable anniversary of the Closing Date, Parent shall issue to the Company Stockholders
as of immediately prior to the Effective Time, on a pro rata basis as set forth in the Closing Consideration Spreadsheet, a number of
shares of Parent Class A Common Stock (rounded up to the nearest whole share) equal to the shares of Parent Class A Common
Stock that would have otherwise been issuable pursuant to any unexercised Converted Stock Options that expired or were otherwise forfeited
during the preceding year. Parent shall continue to reserve and distribute shares of Parent Class A Common Stock as set forth in
this Section 3.2(a)(ii) until the anniversary of the Closing Date on which there are no outstanding and unexercised
Converted Stock Options.
(iii) At
the Effective Time, Parent shall assume all obligations of the Company under the Equity Incentive Plan, each outstanding Converted Stock
Option and the agreements evidencing the grants thereof. As soon as practicable after the Effective Time, Parent shall deliver to the
holders of Converted Stock Options appropriate notices setting forth such holders’ rights, and the agreements evidencing the grants
of such Converted Stock Option shall continue in effect on the same terms and conditions (subject to the adjustments required by this
Section 3.2 after giving effect to the Merger).
(b) Treatment
of Company Restricted Stock Units. Prior to the Closing, the Company’s Board of Directors (or, if appropriate, any committee
thereof administering the Equity Incentive Plan) shall adopt such resolutions or take such other actions as may be required to adjust
the terms of all vested and unvested Company Restricted Stock Units as necessary to provide that, at the Effective Time, each Company
Restricted Stock Unit shall be converted into a restricted stock unit (a “Converted Restricted Stock Unit”) to acquire,
subject to substantially the same terms and conditions as were applicable under such Company Restricted Stock Unit, the number of shares
of Parent Class A Common Stock (rounded up to the nearest whole share), determined by multiplying the number of shares of Company
Common Stock subject to such Company Restricted Stock Unit as of immediately prior to the Effective Time by the Closing Exchange Ratio,
in each case as set forth in the Consideration Spreadsheet.
(c) Treatment
of Company Warrants. Prior to the Closing, the Board of Directors of the Company shall adopt such resolutions or take such other
actions as may be required to adjust the terms of all Company Warrants as necessary to provide that, at the Effective Time, each Company
Warrant issued and outstanding immediately prior to the Effective Time shall be converted into a warrant to purchase, subject to substantially
the same terms and conditions as were applicable under such Company Warrant, the number of shares of Parent Class A Common Stock
(rounded up to the nearest whole share), determined by multiplying (i) the number of shares of Company Common Stock subject to such
Company Warrant immediately prior to the Effective Time, by (ii) the Closing Exchange Ratio, at an exercise price per share of Parent
Class A Common Stock (rounded down to the nearest whole cent) equal to (A) the exercise price per share of Company Common Stock
of such Company Warrant divided by (B) the Exchange Ratio (a “Converted Warrant”). At the Effective Time, the
Parent shall assume all obligations of the Company with respect to any Converted Warrants.
(d) Treatment
of Convertible Notes.
(i) Immediately
prior to the Effective Time, without any action on the part of the Converting Noteholder, each Converting Note that is then held and
remains outstanding immediately prior to the Effective Time shall be cancelled and converted into shares of Company Common Stock, and
such applicable shares of Company Common Stock shall be issued to the applicable Converting Noteholder.
(ii) At
the Effective Time, by virtue of the Merger and without any action on the part of the Pre-PIPE Convertible Noteholder, the Pre-PIPE Convertible
Note, if then held and remains outstanding, shall be cancelled and converted into the right to receive 800,000 shares of Parent Class A
Common Stock (the “Pre-PIPE Conversion Shares”) and a ten-year warrant to purchase 400,000 shares of Parent Class A
Common Stock with an exercise price of $12.50 per share (the “Pre-Pipe Conversion Warrant”). For the avoidance of
doubt, at no time will, either prior to, on or after the Effective Time, the Pre-PIPE Convertible Note convert into Company Common Stock.
3.3 Dissenting
Shares. Notwithstanding any provision of this Agreement to the contrary, including Section 4.1, shares of Company Common
Stock issued and outstanding immediately prior to the Effective Time (other than shares of Company Common Stock cancelled in accordance
with Section 3.1(a)) and held by a holder who has not voted in favor of adoption of this Agreement or consented thereto in
writing and who has properly exercised and perfected appraisal rights of such Company Shares in accordance with Sections 92A.300 through
92A.500, inclusive, of the Nevada Merger Act (such shares of Company Common Stock being referred to collectively as the “Dissenting
Shares” until such time as such holder fails to perfect or otherwise loses such holder’s appraisal rights under the Nevada
Merger Act with respect to such shares) shall not be converted into a right to receive a portion of the Merger Consideration Shares,
but instead shall be entitled to only such rights as are granted by Sections 92A.300 through 92A.500, inclusive, of the Nevada Merger
Act; provided, however, that if, after the Effective Time, such holder fails to perfect, withdraws or loses such
holder’s right to appraisal pursuant to Sections 92A.300 through 92A.500 of the Nevada Merger Act, inclusive, of the Nevada Merger
Act or if a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Sections 92A.300
through 92A.500, inclusive, of the Nevada Merger Act, such Dissenting Shares shall be treated as if they had been converted as of the
Effective Time into the right to receive the portion of the Merger Consideration Shares to which such holder is entitled pursuant to
the applicable subsections of Section 3.1, without interest thereon upon surrender of the Company Stock Certificate or Company
Stock Certificates representing such Dissenting Shares in accordance with Section 3.3. The Company shall promptly provide
Parent prompt written notice of any demands received by the Company for appraisal of shares of Company Common Stock, any withdrawal of
any such demand and any other demand, notice or instrument delivered to the Company prior to the Effective Time pursuant to the Nevada
Merger Act that relates to such demand, and Parent shall have the opportunity to participate in all negotiations and proceedings with
respect to such demands.
3.4 Surrender
and Payment.
(a) Exchange
Fund. On the Closing Date, Parent shall deposit, or shall cause to be deposited, with Continental Stock Transfer & Trust
Company (the “Exchange Agent”) (i) for the benefit of the Company Stockholders, for exchange in accordance with
this Article III, the Closing Merger Consideration Shares (such shares of Parent Class A Common Stock, the “Exchange
Fund”). Parent shall cause the Exchange Agent, pursuant to irrevocable instructions, to pay the applicable portion of the Closing
Merger Consideration Shares out of the Exchange Fund in accordance with the Closing Consideration Spreadsheet and the other applicable
provisions contained in this Agreement. The Exchange Fund shall not be used for any other purpose other than as contemplated by this
Agreement.
(b) Exchange
Procedures.
(i) As
soon as practicable following the Effective Time, and in any event within two (2) Business Days following the Effective Time (but
in no event prior to the Effective Time), Parent shall cause the Exchange Agent to deliver to each Company Stockholder, as of immediately
prior to the Effective Time, represented by certificate or book-entry, a letter of transmittal and instructions for use in exchanging
such Company Stockholder’s shares of Company Common Stock for such Company Stockholder’s applicable portion of the Closing
Merger Consideration Shares from the Exchange Fund upon and following the Effective Time, and, with respect to each Company Stockholder
not already a party to the Lock-up Agreement, which shall include restrictions on such Company Stockholder’s sale, transfer or
other disposition of such Company Stockholder’s applicable portion of the Merger Consideration Shares substantially the same as
set forth in the Lock-up Agreement and be in form and contain other provisions which Parent may specify and which are reasonably acceptable
to the Company (a “Letter of Transmittal”), and promptly following the later of the receipt of a Company Stockholder’s
properly completed and executed Letter of Transmittal and the Effective Time, deliver such Company Stockholder’s applicable portion
of the Closing Merger Consideration Shares to such Company Stockholder. For the purpose of clarification, the portion of the Closing
Merger Consideration Shares payable to each Company Stockholder following such Person’s delivery of a properly completed and executed
Letter of Transmittal shall consist of such Company Stockholder’s applicable portion of the Exchange Fund as set forth in the Closing
Consideration Spreadsheet with respect to such Company Stockholder.
(ii) As
soon as practicable following the Effective Time, and in any event within two (2) Business Days following the Effective Time (but
in no event prior to the Effective Time), if the Pre-PIPE Convertible Note converted into a right to receive the Pre-PIPE Conversion
Shares and the Pre-Pipe Conversion Warrant pursuant to Section 3.2(d)(ii), Parent shall cause the Exchange Agent to deliver
to the Pre-PIPE Convertible Noteholder, represented by certificate or book-entry, a letter of transmittal and instructions for use in
exchanging the Pre-PIPE Convertible Note for the Pre-PIPE Convertible Noteholder’s Pre-PIPE Conversion from the Exchange Fund upon
and following the Effective Time and be in form and contain other provisions which Parent may specify and which are reasonably acceptable
to the Company (a “Pre-PIPE Noteholder Letter of Transmittal”), and promptly following the later of the receipt of
the Pre-PIPE Noteholder’s properly completed and executed Pre-PIPE Noteholder Letter of Transmittal and the Effective Time, deliver
the Pre-PIPE Conversion Shares and the Pre-PIPE Conversion Warrants to the Pre-PIPE Convertible Noteholder.
(c) Termination
of Exchange Fund. Any portion of the Exchange Fund relating to the Closing Merger Consideration Shares that remains undistributed
to the Company Stockholders for two (2) years after the Effective Time shall be delivered to Parent, upon demand, and any Company
Stockholders who have not theretofore complied with this Section 3.4 shall thereafter look only to Parent for their portion
of the Closing Merger Consideration Shares. Any portion of the Exchange Fund remaining unclaimed by Company Stockholders as of a date
which is immediately prior to such time as such amounts would otherwise escheat to or become property of any Authority shall, to the
extent permitted by applicable Law, become the property of Parent free and clear of any claims or interest of any person previously entitled
thereto.
3.5 Consideration
Spreadsheet.
(a) At
least five (5) Business Days prior to the Closing, the Company shall deliver to Parent a spreadsheet (the “Form Consideration
Spreadsheet”), prepared by the Company in good faith and setting forth the following, in each case, as of immediately prior
to the Effective Time, based, when relevant, on assumptions reasonably acceptable to Parent which are described in detail in the Consideration
Spreadsheet:
(i)
the name and address of record of each Company Stockholder and the number and class, type or
series of shares of Company Common Stock held by each;
(ii) the
names of record of each holder of Company Warrants and the number of shares of Company Common Stock subject to each Company Warrant held
by it;
(iii) the
names of record of each holder of Vested Company Options, and the exercise price, number of shares of Company Common Stock subject to
each Vested Company Option held by it;
(iv) the
names of record of each holder of Unvested Company Options, and the exercise price, number of shares of Company Common Stock subject
to each such Unvested Company Option held by it and vesting arrangements with respect to each such Unvested Company Option (including
the vesting schedule, vesting commencement date, date fully vested);
(v) the
names of record of each holder of Company Restricted Stock Units, and the number of shares of Company Common Stock subject to each such
Company Restricted Stock Unit held by it and vesting arrangements with respect to each such Company Restricted Stock Unit (including
the vesting schedule, vesting commencement date, date fully vested);
(vi) the
name and address of record of the Pre-PIPE Convertible Noteholder;
(vii) the
number of Fully Diluted Company Shares;
(viii) the
aggregate number of Rollover Option Shares;
(ix) detailed
calculations of each of the following (in each case, determined without regard to withholding):
(A) the
amount of the Company’s Indebtedness as of immediately prior to Closing;
(B) the
Closing Merger Consideration Shares;
(C) the
Closing Per Share Merger Consideration payable to each named Company Stockholder for each share of Company Common Stock held by such
Company Stockholder and the aggregate portion of the Merger Consideration Shares payable to such Company Stockholder;
(D) to
the extent applicable, the pro rata portion of any shares of Parent Class A Common Stock payable to each named Company Stockholder
in connection with expired or forfeited Converted Stock Options, as provided in Section 3.2(a)(ii);
(E) the
Closing Exchange Ratio;
(F) for
each Converted Stock Option, the exercise price therefor and the number of shares of Parent Class A Common Stock subject to such
Converted Stock Option and whether such Converted Stock Option constitutes a Vested Company Option or Unvested Company Option
(G) for
each Converted Restricted Stock Unit, the number of shares of Parent Class A Common Stock subject to such Converted Restricted Stock
Unit and whether such Converted Restricted Stock Unit constitutes a vested Restricted Stock Unit or unvested Restricted Stock Unit;
(H) for
each Company Warrant, the exercise price therefor and the number of shares of Parent Common Stock subject to such Company Warrant; and
(I) the
aggregate number of shares of Parent Class A Common Stock issuable upon exercise of all the Converted Stock Options.
(x) any
explanatory or supporting information, including calculations, as Parent may reasonably request.
(b) The
Consideration Spreadsheet delivered hereunder shall be true complete and correct and shall contain the same information described in
this Section 3.5, subject to Parent’s rights pursuant to Section 3.4(c).
(c) The
contents of the Consideration Spreadsheet delivered by the Company hereunder shall be subject to reasonable review and comment by Parent
and shall comport with the provisions of this Agreement, but the Company shall, in all events, remain solely responsible for the contents
of the Consideration Spreadsheet. Under no circumstances shall Parent or Merger Sub be responsible for the calculations or the determinations
regarding such calculations in the Consideration Spreadsheet and the parties agree that Parent and Merger Sub shall be entitled to rely
on the Consideration Spreadsheet in making payments under Article IV.
(d) Nothing
contained in this Section 3.5 or in the Consideration Spreadsheet shall be construed or deemed to: (i) modify the Company’s
obligations pursuant to Section 6.1(a)(xx) to obtain Parent’s prior consent to the issuance of any securities;
or (ii) alter or amend the definition of Closing Merger Consideration Shares or Closing Exchange Ratio.
3.6 Earnout.
(a) The
Earnout Recipients have the right to receive up to an aggregate of 4,500,000 additional shares of Parent Class A Common Stock (the
“Earnout Shares”) as follows:
(i) 3,500,000
Earnout Shares if the VWAP of Parent’s Common Stock is above $12.50 for any twenty (20) out of thirty (30) consecutive Trading
Days during the Earnout Period (the “12.50 Earnout Trigger”), and
(ii) 1,000,000
Earnout Shares if the VWAP of Parent’s Common Stock is above $15.00 for any twenty (20) out of thirty (30) consecutive Trading
Days during the Earnout Period (together with the $12.50 Earnout Trigger, the “Earnout Triggers” and each an “Earnout
Trigger”).
(b) The
Earnout Shares (i) shall be issued to the recipients thereof free and clear of all Liens other than applicable federal and state
securities restrictions and restrictions set forth in the Earnout Escrow Agreement, (ii) shall be deposited in escrow at Closing
pursuant to an escrow agreement substantially in the form attached hereto as Exhibit J (the “Earnout Escrow Agreement”),
and (iii) shall be released from escrow to the extent they are earned as a result of the occurrence of the applicable Earnout Trigger
or, to the extent not earned as a result of the occurrence of the applicable Earnout Trigger, shall thereupon be returned to Parent,
in either case pursuant to the Earnout Escrow Agreement. The Earnout Shares, if earned, shall be distributed to the Earnout Recipients
in accordance with the principles set forth in the Consideration Spreadsheet.
(c) If,
at any time after the Closing and prior to or on the fifth (5th) anniversary of the Closing Date, there occurs any transaction resulting
in a Change in Control, then the Earnout Triggers set forth in Sections 3.6(a)(i) - (ii) shall be deemed to have
occurred provided, however, that, the Earnout Shares shall be released to the recipients thereof as of immediately prior to the Change
in Control, and the recipients of such Earnout Shares shall be eligible to participate in such Change in Control transaction with respect
to such Earnout Shares.
(d) During
the Earnout Period, Parent shall use commercially reasonable efforts to remain listed as a public company on, and for the Parent Class A
Common Stock to be tradable over, Nasdaq; provided, however, that the foregoing shall not limit Parent from consummating a Change in
Control or entering into a Contract that contemplates a Change in Control. Upon the consummation of any Change in Control during the
Earnout Period, Parent shall have no further obligations pursuant to this Section 3.6(c).
(e) Except
with respect to any amounts treated as imputed interest under Section 483 of the Code, any issuance of shares of Earnout Shares
pursuant to this Section 3.6 shall be treated as an adjustment to the merger consideration by the parties for Tax purposes,
unless otherwise required by a change in applicable Tax Law. To the extent any Earnout Shares hereunder are required to be treated as
contingent interest pursuant to Treasury Regulations Section 1.483-4(b), example (2), or other applicable Law, then the Earnout
Shares so issued shall be represented by separate share certificates to the extent they represent contingent interest versus the principal
component under such Regulations or other applicable Law. Any Earnout Share that is issued pursuant to this Section 3.6 will
be treated as eligible for non-recognition treatment under Section 354 of the Code (and will not be treated as “other property”
within the meaning of Section 356 of the Code).
(f) For
the avoidance of doubt, the Pre-PIPE Convertible Noteholder is not an Earnout Recipient and has no right to earn, and no rights to, any
of the Earnout Shares.
3.7 Adjustment.
The Merger Consideration Shares and the Closing Exchange Ratio shall be adjusted to reflect appropriately the effect of any stock split,
reverse stock split, stock dividend, recapitalization, reclassification, combination, exchange of shares or other like change with respect
to shares of Parent Class A Common Stock occurring prior to the date the Merger Consideration Shares are issued or such Merger Consideration
Shares which are released from escrow pursuant to this Agreement.
3.8 No
Fractional Shares. No fractional shares of Parent Class A Common Stock, or certificates or scrip representing fractional shares
of Parent Class A Common Stock, will be issued upon the conversion of the Company Common Stock pursuant to the Merger, and such
fractional share interests will not entitle the owner thereof to vote or to any rights of a stockholder of Parent. After aggregating
all shares of Company Common Stock represented by all Company Stock Certificates and book-entry shares delivered by a holder thereof,
any fractional share of Parent Class A Common Stock will be rounded up or down to the nearest whole number of shares of Parent Class A
Common Stock.
3.9 Withholding.
Parent and the Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable to any Person
pursuant to this Agreement such amounts as may be required to be deducted or withheld with respect to the making of such payment under
the Code, or under any provision of state, local or non-U.S. Tax Law. To the extent that amounts are so deducted and withheld and paid
over to the appropriate Taxing Authorities, such amounts shall be treated for all purposes under this Agreement as having been paid to
the Person in respect of which such deduction and withholding was made. Notwithstanding the foregoing, Parent and the Surviving Corporation
shall provide notice of any withholding that either intends to make (or cause to be made) in connection with consideration payable or
otherwise deliverable pursuant to this Agreement (other than any withholding required in connection with amounts properly treated as
compensation for applicable Tax purposes) at least five (5) days prior to the date of the relevant payment and shall use commercially
reasonable efforts to reduce or eliminate any such withholding, including providing recipients of consideration a reasonable opportunity
to provide documentation establishing exemptions from or reductions of such withholdings.
3.10 Lost
or Destroyed Certificates. Notwithstanding the foregoing, if any Company Stock Certificate shall have been lost, stolen or destroyed,
then upon making of a customary affidavit of that fact by the Person claiming such Company Stock Certificate to be lost, stolen or destroyed
in a form reasonably acceptable to Parent, the Exchange Agent shall issue, in exchange for such lost, stolen or destroyed Company Stock
Certificate, the portion of the Merger Consideration Shares to be paid in respect of the shares of Company Common Stock formerly represented
by such Company Stock Certificate as contemplated under this Article III.
Article IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the
disclosure schedules delivered by the Company to Parent prior to the execution of this Agreement with specific reference to the particular
section or subsection of this Agreement to which the information set forth in such disclosure schedule relates (which qualify (a) the
correspondingly numbered representation, warranty or covenant specified therein and (b) such other representations, warranties or
covenants where its relevance as an exception to (or disclosure for purposes of) such other representation, warranty or covenant is reasonably
apparent on its face or cross-referenced), the Company hereby represents and warrants to Parent as follows:
4.1 Corporate
Existence and Power. The Company is a corporation or legal entity duly organized, validly existing and in good standing (with respect
to jurisdictions that recognize that concept) under the laws of its jurisdiction of its incorporation or formation, as the case may be.
The Company has all requisite power and authority, corporate and otherwise, to own, lease or otherwise hold and operate its properties
and other assets and to carry on the Business as currently conducted. The Company is a duly licensed or qualified to do business and
is in good standing (with respect to jurisdictions that recognize that concept) in each jurisdiction in which the nature of its business
or the ownership, leasing or operation of its properties or other assets makes such qualification, licensing or good standing necessary,
except where the failure to be so qualified, licensed or in good standing, individually or in the aggregate, has not had and would not
reasonably be expected to have a Material Adverse Effect in respect of the Company. The Company has offices located only at the addresses
set forth on Schedule 4.1. The Company has made available to Parent, prior to the date of this Agreement, complete and accurate
copies of the Company Articles of Incorporation and the Company’s Bylaws, and the comparable organizational or constitutive documents
of each of its Subsidiaries, in each case as amended to the date hereof. The Company Articles of Incorporation, the Company’s Bylaws
and the comparable organizational or constitutive documents of the Company’s Subsidiaries so delivered are in full force and effect.
The Company is not in violation of the Company Articles of Incorporation or Company’s Bylaws and each of its Subsidiaries is not
in violation of its respective comparable organizational or constitutive documents.
4.2 Authorization.
(a) The
Company has all requisite corporate power and authority to execute and deliver this Agreement and the Additional Agreements to which
it is a party and to consummate the transactions contemplated hereby and thereby, in the case of the Merger, subject to receipt of the
Company Stockholder Approval. The execution and delivery by the Company of this Agreement and the Additional Agreements to which it is
a party and the consummation by the Company of the transactions contemplated hereby and thereby have been duly authorized by all necessary
corporate action on the part of the Company. No other corporate proceedings on the part of the Company are necessary to authorize this
Agreement or the Additional Agreements to which it is a party or to consummate the transactions contemplated by this Agreement (other
than, in the case of the Merger, the receipt of the Company Stockholder Approval) or the Additional Agreements. This Agreement and the
Additional Agreements to which the Company is a party have been duly executed and delivered by the Company and, assuming the due authorization,
execution and delivery by each of the other parties hereto and thereto, this Agreement and the Additional Agreements to which the Company
is a party constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization or similar Laws affecting the rights
of creditors generally and the availability of equitable remedies (the “Enforceability Exceptions”).
(b) By
resolutions duly adopted (and not thereafter modified or rescinded) by the requisite vote of the Board of Directors of the Company, the
Board of Directors of the Company has (i) approved the execution, delivery and performance by the Company of this Agreement, the
Additional Agreements to which it is a party and the consummation of the transactions contemplated hereby and thereby, including the
Merger, on the terms and subject to the conditions set forth herein and therein; (ii) determined that this Agreement, the Additional
Agreements to which it is a party, and the transactions contemplated hereby and thereby, upon the terms and subject to the conditions
set forth herein, are advisable and in the best interests of the Company and the Company Stockholders; and (iii) directed that the
adoption of this Agreement be submitted to the Company Stockholders for consideration and recommended that all of the Company Stockholders
adopt this Agreement. The affirmative vote or written consent of (x) Persons holding a majority of the voting power of the shares
of Company Common Stock entitled to vote thereon to adopt this Agreement, and (y) Persons holding a majority of the voting power
of the shares of Company Common Stock entitled to vote thereon to adopt this Agreement excluding any shares held by a party to any Retention
Bonus Agreement (together, the “Company Stockholder Approvals”) are the only votes or consents of any of the holders
of Company Common Stock or any other class or series of capital stock of the Company that is necessary to adopt this Agreement and approve
the Merger and the consummation of the other transactions contemplated hereby (including the EIP and the PIPE Investment).
4.3 Governmental
Authorization. None of the execution, delivery or performance, by the Company of this Agreement or any Additional Agreement to which
the Company is or will be a party, or the consummation of the transactions contemplated hereby or thereby, requires any consent, approval,
license, Order or other action by or in respect of, or registration, declaration or filing with, any Authority, except for (a) the
filing of the Certificate of Merger with the Secretary of State of the State of Delaware pursuant to the DGCL, and (b) the filing
of the Articles of Merger with the Secretary of State of the State of Nevada pursuant to the Nevada Merger Act.
4.4 Non-Contravention.
None of the execution, delivery or performance by the Company of this Agreement or any Additional Agreement to which the Company is or
will be a party or the consummation by the Company of the transactions contemplated hereby and thereby does or will (a) contravene
or conflict with the Company Articles of Incorporation or the Company’s Bylaws, (b) contravene or conflict with or constitute
a violation of any provision of any Law or Order binding upon or applicable to the Company or to any of its respective properties, rights
or assets, (c) except for the Contracts listed on Schedule 4.8 requiring Company Consents (but only as to the need to obtain
such Company Consents), (i) require consent, approval or waiver under, (ii) constitute a default under or breach of (with or
without the giving of notice or the passage of time or both), (iii) violate, (iv) give rise to any right of termination, cancellation,
amendment or acceleration of any right or obligation of the Company or to a loss of any material benefit to which the Company is entitled,
in the case of each of clauses (i) – (iv), under any provision of any Permit, Contract or other instrument or obligations
binding upon the Company or any of their respective properties, rights or assets, (d) result in the creation or imposition of any
Lien (except for Permitted Liens) on any of the Company’s properties, rights or assets, or (e) require any consent, approval
or waiver from any Person pursuant to any provision of the Company Articles of Incorporation or Bylaws of the Company, except for such
consent, approval or waiver which shall be obtained (and a copy provided to Parent) prior to the Closing.
4.5 Capitalization.
(a) As
of the date hereof, the authorized capital stock of the Company consists of is 40,000,000 shares of common stock, par value of $0.0001
per share, of which 23,436,667 shares are issued and outstanding as of the date of this Agreement. As of the date hereof, there are (a) 5,000,000
shares of Company Common Stock reserved for issuance under the Equity Incentive Plan, of which (i) zero (0) shares have been issued
pursuant to the exercise of outstanding options, (ii) 1,528,500 shares of Company Common Stock are reserved for issuance pursuant
to outstanding unexercised Company Options and (iii) 478,850 shares are reserved for issuance pursuant to outstanding Company Restricted
Stock Units. As of the date hereof, no other shares of capital stock or other voting securities of the Company are authorized or reserved
for issuance or, other than issuances of Company Common Stock after the date hereof in connection with exercises of Company Options and
Company Restricted Stock Units outstanding as of the date hereof or as set forth on Schedule 4.5(a), issued or outstanding. All
issued and outstanding shares of Company Common Stock are duly authorized, validly issued, fully paid and non-assessable and were issued
in compliance with all applicable Laws (including any applicable securities laws) and in compliance with the Company Articles of Incorporation
and the Company’s Bylaws. No shares of Company Common Stock are subject to or were issued in violation of any purchase option,
right of first refusal, preemptive right, subscription right or any similar right (including under any provision of the Nevada Revised
Statutes, the DGCL, the Company Articles of Incorporation or any Contract to which the Company is a party or by which the Company or
any of its properties, rights or assets are bound). As of the date of this Agreement, all outstanding shares of Company Common Stock
are owned of record by the Persons set forth on Schedule 4.5(a) in the amounts set forth opposite their respective names.
Schedule 4.5(a) contains a complete and correct list of each Company Option or Company Restricted Stock Unit outstanding
as of the date of this Agreement, the holder thereof, the number of shares of Company Common Stock issuable thereunder or otherwise subject
thereto, the grant date thereof and the exercise price (as applicable to Company Options) and expiration date thereof.
(b) Except
for the Company Options, Company Restricted Stock Units and as set forth on Schedule 4.5(b), there are no (i) outstanding
warrants, options, agreements, convertible securities, performance units, restricted stock units, restricted stock, stock appreciation
rights or any other derivative equity securities or other commitments or instruments pursuant to which the Company is or may become obligated
to issue or sell any of its shares of Company Common Stock or other securities, (ii) outstanding obligations of the Company to repurchase,
redeem or otherwise acquire outstanding capital stock of the Company or any securities convertible into or exchangeable for any shares
of capital stock of the Company or rights of any Persons to trigger any such obligation, (iii) treasury shares of capital stock
of the Company, (iv) bonds, debentures, notes or other Indebtedness of the Company having the right to vote (or convertible into,
or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote, are issued or
outstanding, (v) preemptive or similar rights to purchase or otherwise acquire shares or other securities of the Company (including
pursuant to any provision of Law, the Company Articles of Incorporation or any Contract to which the Company is a party), or (vi) Liens
(including any right of first refusal, right of first offer, proxy, voting trust, voting agreement or similar arrangement or restriction)
with respect to the sale or voting of shares or securities of the Company (whether outstanding or issuable). There are no issued, outstanding
or authorized stock appreciation, phantom stock or similar rights with respect to the Company.
(c) Each
Company Option and each Company Restricted Stock Unit (i) was granted in compliance in all material respects with (A) all applicable
Laws (including any applicable securities Laws) and (B) all of the terms and conditions of the Equity Incentive Plans pursuant to
which it was issued, (ii) in the case of a Company Option has an exercise price per share of Company Common Stock equal to or greater
than the fair market value of such share at the close of business on the date of such grant, and (iii) has a grant date identical
to the date on which the Board of Directors of the Company or compensation committee actually awarded such Company Option or Company
Restricted Stock Unit.
4.6 Corporate
Records. All proceedings occurring since January 1, 2017, of the Board of Directors of the Company or the governing Persons
or body of any Person acquired by the Company, including all committees thereof, and of the Company Stockholders and the equity holders
of any Person acquired by the Company, and all consents to actions taken thereby, are accurately reflected in the minutes and records
contained in the corporate minute books of the Company and made available to Parent. The stockholder ledger of the Company is true, correct
and complete.
4.7 No
Subsidiaries. The Company does not own, directly or indirectly, as of the date hereof, and has never owned, directly or indirectly,
(a) any capital stock of, or other voting securities or other equity or voting interests in, any Person or (b) any other interest
or participation that confers on the Company or any Subsidiary of the Company the right to receive (i) a share of the profits and
losses of, or distributions of assets of, any other Person or (ii) any economic benefit or right similar to, or derived from, the
economic benefits and rights accruing to holders of capital stock of, or other equity interests in, any other Person.
4.8 Consents.
The Contracts listed on Schedule 4.8 are the only Contracts requiring a consent, approval, authorization, order or other action
of or filing with any Person as a result of the execution, delivery and performance of this Agreement or any Additional Agreement to
which the Company is or will be a party or the consummation of the transactions contemplated hereby or thereby (each of the foregoing,
a “Company Consent”).
4.9 Financial
Statements.
(a) The
Company has delivered to Parent (a) the audited consolidated balance sheets of the Company, and the related statements of operations,
changes in stockholders’ equity and cash flows, for the fiscal years ended December 31, 2022 and December 31, 2021, including
the notes thereto (collectively, the “Annual Financial Statements”), and (b) the unaudited balance sheet of the
Company, and the related statements of operations, changes in stockholders’ equity and cash flows, for the three-month period ended
March 31, 2023 (collectively, the “Unaudited Financial Statements” and, together with the Annual Financial Statements,
the “Company Financial Statements”). The Company Financial Statements have been prepared in conformity with U.S. GAAP
applied on a consistent basis and in accordance with the requirements of the Public Company Accounting Oversight Board for public companies.
The Company Financial Statements fairly present, in all material respects, the financial position of the Company as of the dates thereof
and the results of operations of the Company for the periods reflected therein subject, in the case of the Unaudited Financial Statements,
to normal audit adjustments and the absence of notes thereto. The Company Financial Statements were prepared from the Books and Records
of the Company in all material respects. Since the Balance Sheet Date, except as required by applicable Law or U.S. GAAP, there has been
no change in any accounting principle, procedure or practice followed by the Company or in the method of applying any such principle,
procedure or practice.
(b) Except:
(i) as specifically disclosed, reflected or fully reserved against on the Balance Sheet; (ii) for liabilities and obligations
incurred in the ordinary course of business consistent with past practices since the Balance Sheet Date; (iii) for liabilities that
are executory obligations arising under Contracts to which the Company is a party (none of which, with respect to the liabilities described
in clause (ii) and this clause (iii) results from, arises out of, or relates to any breach or violation of, or default under,
a Contract or applicable Law); (iv) for expenses incurred in connection with the negotiation, execution and performance of this
Agreement, any Additional Agreement or any of the transactions contemplated hereby or thereby; and (v) for liabilities set forth
on Schedule 4.9(b), the Company does not have any material liabilities, debts or obligations of any nature (whether accrued, fixed
or contingent, liquidated or unliquidated, asserted or unasserted or otherwise).
(c) Except
as set forth on Schedule 4.9(c), the Company does not have any Indebtedness.
4.10 Books
and Records. The Books and Records of the Company accurately and fairly, in reasonable detail, reflect the transactions and dispositions
of assets of and the providing of services by the Company. The Books and Records of the Company have been maintained, in all material
respects, in accordance with reasonable business practices.
4.11 Internal
Accounting Controls.
The Company has established
a system of internal accounting controls sufficient to provide reasonable assurance that: (a) transactions are executed in accordance
with management’s general or specific authorizations; (b) transactions are recorded as necessary to permit preparation of
financial statements in conformity with U.S. GAAP, and the Company’s historical practices and to maintain asset accountability;
(c) access to assets is permitted only in accordance with management’s general or specific authorization; and (d) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
4.12 Absence
of Certain Changes. From the Balance Sheet Date until the date of this Agreement, except as set forth on Schedule 4.12, (a) the
Company has conducted its businesses in the ordinary course and in a manner consistent with past practices; (b) there has not been
any Material Adverse Effect in respect of the Company; and (c) the Company has not taken any action that, if taken after the date
of this Agreement and prior to the consummation of the Merger, would require the consent of Parent pursuant to Section 6.1
and Parent has not given consent.
4.13 Properties;
Title to the Company’s Assets.
(a) All
items of Tangible Personal Property are in good operating condition and repair and function in all material respects in accordance with
their intended uses (ordinary wear and tear excepted), have been properly maintained and are suitable for their present uses and meet
all specifications and warranty requirements with respect thereto. All of the Tangible Personal Property is located at the offices or
properties of the Company.
(b) The
Company or a Subsidiary has good, valid and marketable title in and to, or in the case of the Lease and the assets which are leased or
licensed pursuant to Contracts, a valid leasehold interest or license in or a right to use all of the tangible assets reflected on the
Balance Sheet. Except as set forth on Schedule 4.13(b), no such tangible asset is subject to any Lien other than Permitted Liens.
(c) All
Permits and regulatory authorizations, applications, submissions, registrations, listings and approvals therefore made to or granted
by any regulatory or other Authority, including all data, documents and information contained therein, are owned by the Company and held,
listed or registered in the name of the Company.
(d) The
Company’s assets, including the Company’s leased assets, constitute all of the rights, properties, and assets of any kind
or description whatsoever, including goodwill, necessary for the Company to operate the Business immediately after the Closing in substantially
the same manner as the Business is currently being conducted.
4.14 Litigation.
Except as set forth on Schedule 4.14, there is no Action pending or, to the Knowledge of the Company, threatened against or affecting
the Company, any of the officers or directors, of the Company, the Business, any of the Company’s rights, properties or assets
or any Contract before any Authority or which, as of the date hereof, in any manner challenges or seeks to prevent, enjoin, alter or
delay the transactions contemplated by this Agreement or any Additional Agreement and there are no outstanding judgments against the
Company or any of its respective rights, properties or assets. Neither the Company nor any of its respective rights, properties or assets
is, nor has been since January 1, 2017, subject to any Action by any Authority.
4.15 Contracts.
(a) Schedule
4.15(a) sets forth a complete and correct list, as of the date of this Agreement, of all of the following Contracts as amended
to date which are currently in effect (collectively, “Material Contracts”):
(i) all
Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company of $100,000 or more (other
than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);
(ii) all
sales, advertising, agency, lobbying, broker, sales promotion, market research, marketing or similar Contracts;
(iii) each
Contract with any current officer, director, employee or consultant of the Company, under which the Company (A) has continuing obligations
for payment of an annual compensation of at least $150,000, and which is not terminable for any reason or no reason upon reasonable notice
without payment of any penalty, severance or other obligation; (B) has severance or post-termination obligations to such Person
(other than COBRA obligations); or (C) has an obligation to make a payment upon consummation of the transactions contemplated by
this Agreement or any Additional Agreement or as a result of a change of control of the Company;
(iv) all
Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company is
a party;
(v) all
Contracts relating to any acquisitions or dispositions of material assets by the Company (other than acquisitions or dispositions of
inventory in the ordinary course of business consistent with past practices) in excess of $100,000;
(vi) all
Contracts relating to the lease of any aircraft, aircraft engine or simulator;
(vii) all
IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such
IP Contracts under which the Company is entitled to receive royalties thereunder;
(viii) all
Contracts limiting the freedom of the Company to compete in any line of business or industry, with any Person or in any geographic area;
(ix) all
Contracts providing for guarantees, indemnification arrangements and other hold harmless arrangements made or provided by the Company,
including all ongoing agreements for repair, warranty, maintenance, service, indemnification or similar obligations, other than Standard
Contracts;
(x) all
Contracts with or pertaining to the Company to which any Affiliate of the Company is a party, other than any Contracts for less than
$50,000 or relating to such Affiliate’s status as a Company Securityholder;
(xi) all
Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company holds a leasehold interest
(including the Lease), and which involve payments to the lessor thereunder in excess of $100,000 per year;
(xii) all
Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness), except any such Contract
with an aggregate outstanding principal amount not exceeding $100,000;
(xiii) all
Contracts relating to the voting or control of the equity interests of the Company or the election of directors of the Company (other
than the organizational or constitutive documents the Company);
(xiv) all
Contracts not cancellable by the Company with no more than thirty (30) days’ notice if the effect of such cancellation would result
in monetary penalty to the Company in excess of $100,000 per the terms of such contract;
(xv) all
Contracts that may be terminated, or the provisions of which may be altered, as a result of the consummation of the transactions contemplated
by this Agreement or any Additional Agreement;
(xvi) all
Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the
consummation of the transactions contemplated by this Agreement or any Additional Agreement, or the amount or value thereof will be calculated
on the basis of, the transactions contemplated by this Agreement or any Additional Agreement;
(xvii) all
charter agreements; and
(xviii) all
collective bargaining agreements or other agreement with a labor union or labor organization.
Notwithstanding the foregoing,
“Material Contracts” shall not include Contracts that are also Plans.
(b) Each
Material Contract is (i) a valid and binding agreement, (ii) in full force and effect and (iii) enforceable by and against
the Company or its Subsidiary and to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of
this clause (iii), to the Enforceability Exceptions. Neither the Company nor, to the Company’s Knowledge, any other party to a
Material Contract is in material breach or default (whether with or without the passage of time or the giving of notice or both) under
the terms of any such Material Contract. The Company has not assigned, delegated or otherwise transferred any of its rights or obligations
under any Material Contract or granted any power of attorney with respect thereto.
(c) The
Company is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds
and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated
by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any
Indebtedness.
4.16 Licenses
and Permits. Schedule 4.16 sets forth a complete and correct list of each material Permit, together with the name of the Authority
issuing the same. Such Permits are valid and in full force and effect, and none of the Permits will be terminated or impaired or become
terminable as a result of the transactions contemplated by this Agreement or any Additional Agreement. The Company has all Permits necessary
to operate the Business, and each of the Permits is in full force and effect. The Company is not in material breach or violation of,
or material default under, any such Permit, and, to the Company’s Knowledge, no basis (including the execution of this Agreement
and the other Additional Agreements to which the Company is a party and the consummation of the transactions contemplated by this Agreement
or any Additional Agreement) exists which, with notice or lapse of time or both, would reasonably constitute any such breach, violation
or default or give any Authority grounds to suspend, revoke or terminate any such Permit. The Company has not received any written (or,
to the Company’s Knowledge, oral) notice from any Authority regarding any material violation of any Permit. There has not been
and there is not any pending or, to the Company’s Knowledge, threatened Action, investigation or disciplinary proceeding by or
from any Authority against the Company involving any Permit, and the Company has not received any written communications from any Authority
notifying the Company of a Permit the Company does not currently possess, or has not applied for, that is required in connection with
the Company’s operation of the Business.
4.17 Compliance
with Laws.
(a) Neither
the Company nor, to the Knowledge of the Company, any Representative or other Person acting on behalf of the Company, is in violation
in any material respect of, and, since January 1, 2017, no such Person has failed to be in compliance in all material respects with,
all applicable Laws and Orders. Since January 1, 2017, no event has occurred or circumstance exists that (with or without notice
or due to lapse of time) would reasonably constitute or result in a material violation by the Company of, or failure on the part of the
Company to comply with, or any liability suffered or incurred by the Company in respect of any material violation of or material noncompliance
with, any Laws, Orders or policies by any Authority that are or were applicable to it or the conduct or operation of its business or
the ownership or use of any of its assets.
(b) Neither
the Company nor, to the Knowledge of the Company, any Representative or other Person acting on behalf of the Company is currently subject
to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department.
4.18 Intellectual
Property.
(a) The
Company is the sole and exclusive owner of each item of Company Owned IP, free and clear of any Liens (except for Permitted Liens). The
Company is the sole and exclusive licensee of each item of Company Exclusively Licensed IP, free and clear of any Liens. The Company
has a valid right under IP Contracts to use the Company Licensed IP as currently used.
(b) Schedule
4.18(b) sets forth a complete and correct list of all (i) Registered Owned IP; (ii) unregistered material Trademarks
constituting Company Owned IP; (iii) Domain Names constituting Company Owned IP; and (iv) all social media accounts and handles
constituting Company Owned IP; accurately specifying as to each of the foregoing, as applicable: (A) the filing number, issuance
or registration number, or other identify details; (B) the owner and nature of the ownership; and (C) the jurisdictions by
or in which such Registered Owned IP has been issued, registered, or in which an application for such issuance or registration has been
filed.
(c) To
the Knowledge of the Company, all Registered Owned IP is subsisting valid and enforceable. All Registered Exclusively Licensed IP is
subsisting and to the Knowledge of the Company valid and enforceable. To the Knowledge of the Company, all Persons have, in connection
with the prosecution of all Patents before the United States Patent and Trademark Office and other similar offices in other jurisdictions
complied with the applicable obligations of candor owed to the United States Patent and Trademark Office and such other offices. Since
January 1, 2016, no Registered Owned IP is or has been involved in any interference, opposition, reissue, reexamination, revocation
or equivalent proceeding, and no such proceeding has been threatened in writing with respect thereto. Since January 1, 2016, there
have been no claims filed, served or threatened in writing, or orally threatened, against the Company contesting the validity, use, ownership,
enforceability, patentability, registrability, or scope of any Registered Owned IP. All registration, maintenance and renewal fees currently
due in the next ninety (90) days in connection with any Registered Owned IP have been paid and all documents, recordations and certificates
in connection therewith have been filed with the authorities in the United States or foreign jurisdictions, as the case may be, for the
purposes of prosecuting, maintaining and perfecting such rights and recording the Company’s ownership or interests therein.
(d) To
the Knowledge of the Company, the operation of the Business as currently conducted and as conducted since January 1, 2016, do not
conflict with, infringe, misappropriate or otherwise violate any Intellectual Property of any third Person. Since January 1, 2016,
there have been no claims filed, served or threatened in writing, or orally threatened, against the Company alleging any conflict with,
infringement, misappropriation, or other violation of any Intellectual Property of a third Person (including any unsolicited written
offers to license any such Intellectual Property). There are no Actions pending that involving a claim against the Company by a third
Person alleging infringement or misappropriation of such third Person’s Intellectual Property. To the Knowledge of the Company,
since January 1, 2016, no third Person has conflicted with, infringed, misappropriated, or otherwise violated any Company IP.
(e) Since
January 1, 2016, the Company has not filed, served, or threatened a third Person with any claims alleging any conflict with, infringement,
misappropriation, or other violation of any Company IP. There are no Actions pending that involve a claim against a third Person by the
Company alleging infringement or misappropriation of Company IP. The Company is not subject to any Order that adversely restricts the
use, transfer, registration or licensing of any Company IP by the Company.
(f) Except
as disclosed on Schedule 4.18(f), each employee, agent, consultant, and contractor who has contributed to or participated in the
creation or development of any material Intellectual Property on behalf of the Company has executed a form of proprietary information
and/or inventions agreement or similar written Contract with the Company under which such Person: (i) has assigned all right, title
and interest in and to such Intellectual Property to the Company (or such predecessor in interest, as applicable); and (ii) is obligated
to maintain the confidentiality of the Company’s confidential information both during and after the term (subject to certain expirations
for business information) of such Person’s employment or engagement. To the extent any such proprietary information and/or inventions
agreement or other similar written Contract permitted such employee, agent, consultant, and contractor to exclude from the scope of such
agreement or Contract any Intellectual Property in existence prior to the date of the employment or relationship, no such employee, agent,
consultant, and contractor excluded Intellectual Property that was related to the Business of the Company. To the Knowledge of the Company,
no employee, agent, consultant or contractor of the Company is or has been in violation of any term of any such Contract.
(g) No
government funding or facility of a university, college, other educational institution or research center was used in the development
of any item of Company Owned IP.
(h) None
of the execution, delivery or performance by the Company of this Agreement or any of the Additional Agreements to which the Company is
or will be a party or the consummation by the Company of the transactions contemplated hereby or thereby will (i) cause any item
of Company Owned IP, or any material item of Company Licensed IP immediately prior to the Closing, to not be owned, licensed or available
for use by the Company on substantially the same terms and conditions immediately following the Closing or (ii) require any additional
payment obligations by the Company in order to use or exploit any other such Intellectual Property to the same extent as the Company
was permitted immediately before the Closing.
(i) Except
with respect to the IP Contracts listed on Schedule 4.18(i), the Company is not obligated under any Contract to make any payments
by way of royalties, fees, or otherwise to any owner or licensor of, or other claimant to, any Intellectual Property.
(j) The
Company has exercised reasonable efforts necessary to maintain, protect and enforce the confidentiality of all Trade Secrets constituting
Company Owned IP and all other material confidential information. No Company Owned IP is subject to any technology or source code escrow
arrangement or obligation. No person other than the Company and their employees and contractors (i) has a right to access or possess
any source code of the Software constituting the Company Owned IP, or (ii) will be entitled to obtain access to or possession of
such source code as a result of the execution, delivery and performance of by the Company of this Agreement. The Company is in actual
possession of the source code of any Software constituting Company Owned IP.
(k) The
Company has a privacy policy regarding the collection, use or disclosure of data in connection with the operation of the Business as
currently conducted (the “Privacy Policy”) that is made available to all visitors to the Sites prior to the collection
of any data in the possession, custody, or control, or otherwise held or processed by, or on behalf of the Company. For purposes of this
subsection (m), “Sites” shall mean, any websites or applications made available to the general public provided by
or on behalf of the Company. The Privacy Policy accurately describes the Company’s data collection, disclosure and use practices,
complies with all Laws, and is consistent with good industry practice. None of the marketing materials and/or advertisements made, or
provided by, or on behalf of the Company have been inaccurate in a material way, misleading in a material way, unfair or deceptive in
violation of applicable Laws.
(l) In
connection with its Processing of any Personal Information, the Company is and has been in compliance with all applicable Laws, including
without limitation all applicable Data Privacy Laws and Laws related to data loss, theft, and security breach notification obligations,
and, to the Knowledge of the Company, there has been no unauthorized disclosure of any Personal Information for which the Company would
be required to make a report to a governmental authority, a data subject, or any other Person. In addition, the Company has in place
and since January 1, 2019, has had in place commercially reasonable policies (including the Privacy Policy and any other internal
and external privacy policies), rules, and procedures regarding the Company’s collection, use, disclosure, disposal, dissemination,
storage, protection and other Processing of Personal Information. The Company has complied in all respects with such privacy policies,
rules, and procedures in connection with any collection, use, or disclosure by the Company of any Personal Information of any Person.
The Company has not been subject to, and, to the Knowledge of the Company, there are no, complaints to or audits, proceedings, investigations
or claims pending against the Company by any Authority, or by any Person, in respect of the collection, use, storage disclosure or other
Processing of Personal Information. The Company has implemented commercially reasonable physical, technical, organization and administrative
security measures and policies designed to protect all Personal Information of any Person accessed, Processed or maintained by the Company
from unauthorized physical or virtual access, use, modification, acquisition, disclosure or other misuse. Without limiting the generality
of the foregoing, since January 1, 2019, to the Knowledge of the Company, the Company has not experienced any material loss, damage
or unauthorized access, use, disclosure or modification, or breach of security of Personal Information maintained by or on behalf of
the Company (including by any agent, subcontractor or vendor of the Company).
(m) The
Software that constitutes Company Owned IP and all Software that is used by the Company is, to the Knowledge of the Company, free of
all viruses, worms, Trojan horses and other material known contaminants and does not contain any bugs, errors, or problems of a material
nature that would disrupt its operation or have an adverse impact on the operation of other Software. The Company has not incorporated
Publicly Available Software into the Company services, and the Company has not distributed Publicly Available Software as part of the
Company’s products and services other than as set forth on Schedule 4.18(m) in a manner that subjects, in whole or
in part, any Software constituting Company Owned IP to any Copyleft License obligations. The Company is in material compliance with all
Publicly Available Software license terms applicable to any Publicly Available Software licensed to or used by the Company. The Company
has not received any written (or, to the Knowledge of the Company, oral) notice from any Person that it is in breach of any license with
respect to Publicly Available Software.
(n) The
Company computers, servers, equipment, hardware, networks, Software and systems used, owned, leased or licensed by the Company in connection
with the material operation of the Business (the “Company Information Systems”). There has been no unauthorized access
to or use of the Company Information Systems, nor has there been any downtime or unavailability of the Company Information Systems that
resulted in a material disruption of the Business. The Company Information Systems are adequate and sufficient (including with respect
to working condition and capacity) for the operations of the Business. There has been no failure with respect to any Company Information
System that has had a material effect on the operations of the Company.
4.19 Accounts
Payable; Affiliate Loans.
(a) The
accounts payable of the Company reflected on the Company Financial Statements, and all accounts payable arising subsequent to the date
thereof, arose from bona fide transactions in the ordinary course of business consistent with past practices.
(b) The
information set forth on Schedule 4.19(b) separately identifies any and all accounts, receivables or notes of the Company
which are owed by any Affiliate of the Company. Except as set forth on Schedule 4.19(b), the Company is not indebted to any of
its Affiliates and no Affiliates are indebted to the Company.
4.20 Employees;
Employment Matters.
(a) Schedule
4.20(a) sets forth a complete and correct list of each of the officers or employees of the Company as of the date hereof, setting
forth the name, title, current base salary or hourly rate for each such person and total compensation (including bonuses and commissions)
paid to each such person for the fiscal years ended December 31, 2021, 2020 and 2019.
(b) The
Company is not party to any collective bargaining agreement, and, since January 1, 2017, there has been no activity or proceeding
by a labor union or representative thereof to organize any employees of the Company. There is no labor strike, material slowdown or material
work stoppage or lockout pending or, to the Knowledge of the Company, threatened against the Company, and, since January 1,
2017, the Company has not experienced any strike, material slowdown, material work stoppage or lockout by or with respect to its
employees. To the Knowledge of the Company, the Company is not subject to any attempt by any union to represent Company employees as
a collective bargaining agent.
(c) There
are no pending or, to the Knowledge of the Company, threatened Actions against the Company under any worker’s compensation policy
or long-term disability policy. There is no unfair labor practice charge or complaint pending or, to the Knowledge of the Company, threatened
before any applicable Authority relating to employees of the Company. Since January 1, 2017, the Company has not engaged in, and
is not currently contemplating, any location closing, employee layoff, or relocation activities that would trigger the Worker Adjustment
Retraining and Notification Act of 1988, as amended, or any similar state or local statute, rule or regulation (collectively, the
“WARN Act”).
(d) Except
as set forth on Schedule 4.20(d), the Company is, and since January 1, 2017, has been, in material compliance in all material
respects with all applicable Laws relating to employment of labor, including all applicable Laws relating to wages, hours, overtime,
collective bargaining, equal employment opportunity, anti-discrimination, anti-harassment (including, but not limited to sexual harassment),
anti-retaliation, immigration, employee leave, disability rights or benefits, employment and reemployment rights of members and veterans
of the uniformed services, paid time off/vacation, unemployment insurance, safety and health, workers’ compensation, pay equity,
restrictive covenants, child labor, whistleblower rights, classification of employees and independent contractors, meal and rest breaks,
business expenses, and the collection and payment of withholding or social security Taxes. Since January 1, 2017, no audits have
been conducted, or are currently being conducted, or, to the Knowledge of the Company, are threatened to be conducted by any Authority
with respect to applicable Laws regarding employment or labor Laws. No employee of the Company has, since January 1, 2017, brought
or, to the Knowledge of the Company, threatened to bring a claim for unpaid compensation, including overtime amounts.
(e) The
Company has complied, in all material respects, with all Laws relating to the verification of identity and employment authorization of
individuals employed in the United States, and none of the Company currently employs, or since January 1, 2017, has employed, any
Person who was not permitted to work in the jurisdiction in which such Person was employed. No audit by any Authority is currently being
conducted, pending or, to the Knowledge of the Company, threatened to be conducted in respect to any foreign workers employed by the
Company. Schedule 4.20(e) sets forth with respect to each individual who is employed by the Company pursuant to a visa, (i) the
expiration date of such visa and (ii) whether the Company has made any attempts to renew such visa.
(f) To
the Knowledge of the Company, no key employee or officer of the Company is a party to or is bound by any confidentiality agreement, non-competition
agreement or other contract (with any Person) that would materially interfere with: (i) the performance by such officer or key employee
of any of his or her duties or responsibilities as an officer or employee of the Company or (ii) the Company’s business or
operations. No key employee or officer of the Company has given written notice of their definite intent to terminate their employment
with the Company, nor does the Company have any present intention to terminate the employment of any of the foregoing.
(g) Except
as set forth on Schedule 4.20(g), the employment of each of the key employees is terminable at will without any penalty or severance
obligation on the part of the Company. All material sums due for employee compensation and all vacation time owing to any employees of
the Company, and all fees owing to any independent contractors and consultants, have been duly accrued on the accounting records of the
Company.
(h) Except
as set forth on Schedule 4.20(h), with regard to any individual who performs or performed services for the Company and who is
not treated as an employee for Tax purposes by the Company, except as set forth on Schedule 4.20(h), the Company has complied
in all material respects with applicable Laws concerning independent contractors, including for Tax withholding purposes or Plan purposes,
and the Company does not have any Liability by reason of any individual who performs or performed services for the Company, in any capacity,
being improperly excluded from participating in any Plan. Each individual engaged by the Company as an independent contractor or consultant
is, and since January 1, 2017, has been, properly classified by the Company as an independent contractor, and the Company has not
received any notice from any Authority or Person disputing such classification. Each of the employees of the Company is, and since January 1,
2017, has been, properly classified by the Company as “exempt” or “non-exempt” under applicable Law.
(i) There
is no, and since January 1, 2017, there has been no, written notice provided to the Company of any claim or litigation relating
to, or any complaint or allegation of, discrimination, retaliation, wrongful termination, constructive termination, harassment (including
sexual harassment), sexual misconduct, or wage and hour violation against the Company; nor there is any pending obligation for the Company
under any settlement or out-of-court or pre-litigation arrangement relating to such matters, nor, to the Knowledge of the Company, has
any such litigation, settlement or other arrangement been threatened.
(j) Since
January 1, 2017, the Company has investigated all workplace harassment (including sexual harassment), discrimination, retaliation,
and workplace violence written claims relating to current and/or former employees of the Company or third-parties who interacted with
current and/or former employees of the Company. With respect to each such written claim with potential merit, the Company has taken corrective
action. Further, to the Knowledge of the Company, no allegations of sexual harassment have been made to the Company against any individual
in his or her capacity as director or an employee of the Company.
(k) As
of the date hereof and since January 1, 2017, there have been no audits by any Authority, nor have there been any charges, fines,
or penalties, including those pending or threatened, under any applicable federal, state or local occupational safety and health Law
and Orders (collectively, “OSHA”) against the Company. The Company is in compliance in all material respects with
OSHA and there are no pending appeals of any Authority’s decision or fines issued in relation to OSHA.
(l) The
Company has complied with all applicable Laws regarding the COVID-19 pandemic, including all applicable federal, state and local Orders
issued by any Authority (whether in the United States or any other jurisdiction) regarding shelters-in-place, or similar Orders in effect
as of the date hereof and have taken appropriate precautions regarding its employees. As of the date hereof, all employees of the Company
who are reasonably able to conduct their duties remotely are working remotely. There have been no, and there are no pending or anticipated
layoffs, leaves of absence or terminations of employment in respect to the employees of the Company as a result of the COVID-19 pandemic.
The Company has promptly and thoroughly investigated all occupational safety and health complaints, issues, or inquiries related to the
COVID-19 pandemic. With respect to each occupational safety and health complaint, issue, or inquiry related to the COVID-19 pandemic,
the Company has taken prompt corrective action that is reasonably calculated to prevent further spread of COVID-19 within the Company’s
workplace.
(m) Except
as set forth on Schedule 4.20(m), the Company has not paid or promised to pay any bonus to any employee in connection with the
consummation of the transactions contemplated hereby.
(n) Each
of the applicable persons included among Key Personnel on Schedule 1.1 hereto, and the Company have duly executed and delivered
a Restrictive Covenant Agreement and an employment agreement, as the case may be. To the Knowledge of the Company, none of the Key Personnel
are or were, as the case may be, in violation thereof.
4.21 Withholding.
Except as disclosed on Schedule 4.21, all obligations of the Company applicable to its employees, whether arising by operation
of Law, by Contract, or attributable to payments by the Company to trusts or other funds or to any Authority, with respect to unemployment
compensation benefits or social security benefits for its employees through the date hereof, have been paid or adequate accruals therefor
have been made on the Company Financial Statements. Except as disclosed on Schedule 4.19, all reasonably anticipated obligations
of the Company with respect to such employees (except for those related to wages during the pay period immediately prior to the Closing
Date and arising in the ordinary course of business consistent with past practices), whether arising by operation of Law, by contract,
by past custom, or otherwise, for salaries and holiday pay, bonuses and other forms of compensation payable to such employees in respect
of the services rendered by any of them prior to the date hereof have been or will be paid by the Company prior to the Closing Date.
4.22 Employee
Benefits.
(a) Schedule
4.22(a) sets forth a complete and correct list of all Plans. With respect to each Plan, the Company has made available to Parent
or its counsel a true, complete and correct copy, to the extent applicable, of: (i) each writing constituting a part of such Plan
and all amendments thereto, including all plan documents, adoption agreements, material employee communications, benefit schedules, trust
agreements, and insurance contracts and other funding vehicles; (ii) the three (3) most recent annual reports on Form 5500
and accompanying schedules; (iii) the current summary plan description and any material modifications thereto; (iv) the most
recent annual financial and actuarial reports; (v) the most recent determination or advisory letter received by the Company from
the Internal Revenue Service regarding the tax-qualified status of such Plan and (vi) the three (3) most recent written results
of all required compliance testing.
(b) No
Plan is (i) subject to Section 412 of the Code or Title IV of ERISA or (ii) a “multiemployer plan” (as defined
in Section 3(37) of ERISA). None of the Company, or any ERISA Affiliate, has withdrawn at any time since January 1, 2017, from
any multiemployer plan or incurred any withdrawal liability which remains unsatisfied, and no events have occurred and, to the Knowledge
of the Company, no circumstances exist that could reasonably be expected to result in any such liability to the Company with respect
to any multiemployer plan.
(c) With
respect to each Plan that is intended to qualify under Section 401(a) of the Code, such Plan, including its related trust,
has received a determination letter (or may rely upon opinion letters in the case of any prototype plans) from the Internal Revenue Service
that it is so qualified and that its trust is exempt from Tax under Section 501(a) of the Code, and nothing has occurred with
respect to the operation of any such Plan that could cause the loss of such qualification or exemption or the imposition of any material
liability, penalty or tax under ERISA or the Code.
(d) There
are no pending or, to the Knowledge of the Company, threatened Actions against or relating to the Plans, the assets of any of the trusts
under such Plans or the Plan sponsor or the Plan administrator, or against any fiduciary of any Plan with respect to the operation of
such Plan (other than routine benefits claims). No Plan is currently under audit or examination (nor has written notice been received
of a potential audit or examination) by any Authority.
(e) Each
Plan has been established, administered and funded in accordance with its terms and in compliance in all material respects with the applicable
provisions of ERISA, the Code and other applicable Laws. All premiums due or payable with respect to insurance policies funding any Plan
have been made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected
on the Company Financial Statements.
(f) None
of the Plans provide retiree or other post-employment health or life insurance benefits, except as may be required by Section 4980B
of the Code, Section 601 of ERISA or any other similar applicable Law. There has been no violation of the “continuation coverage
requirement” of “group health plans” as set forth in Section 4980B of the Code and Part 6 of Subtitle B of
Title I of ERISA with respect to any Plan to which such continuation coverage requirements apply.
(g) Except
as set forth on Schedule 4.22(g), neither the execution and delivery of this Agreement nor the consummation of the transactions
contemplated hereby will (either alone or in combination with another event) (i) result in any payment becoming due, or increase
the amount of any compensation or benefits due, to any current or former employee of the Company with respect to any Plan; (ii) increase
any benefits otherwise payable under any Plan; or (iii) result in the acceleration of the time of payment or vesting of any such
compensation or benefits. No Person is entitled to receive any additional payment (including any tax gross-up or other payment) from
the Company as a result of the imposition of the excise taxes required by Section 4999 of the Code or any taxes required by Section 409A
of the Code.
(h) Neither
the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination
with another event) result in the payment of any amount that would, individually or in combination with any other such payment, be an
“excess parachute payment” within the meaning of Section 280G of the Code.
(i) Each
Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) is in documentary
compliance in all material respects with, and has been administered in compliance with Section 409A of the Code.
(j) Each
Plan that is subject to the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act
of 2010 (the “Affordable Care Act”) has been established, maintained and administered in compliance in all material
respects with the requirements of the Affordable Care Act and satisfies in all material respects the minimum coverage, affordability
and non-discrimination requirements thereunder.
(k) There
are no Plans subject to the laws of any jurisdiction outside of the United States.
4.23 Real
Property.
(a) Schedule
4.23(a) sets forth the address of each Owned Real Property. With respect to each Owned Real Property: (i) the Company has
good and marketable fee simple title to such Owned Real Property, which shall be free and clear of all liens and encumbrances as of the
Closing Date, except for Permitted Liens; (ii) except as set forth on Schedule 4.23(a), the Company has not leased or otherwise
granted to any Person the right to use or occupy such Owned Real Property or any portion thereof; (iii) other than the right of
the Parent pursuant to this Agreement, there are no outstanding options, rights of first offer or rights of first refusal to purchase
such Owned Real Property or any portion thereof or interest therein; and (iv) the Company is not a party to any agreement or option
to purchase any real property or interest therein.
(b) Schedule
4.23(b) sets forth a true, correct and complete list of all Leases. The Leases are the only Contracts pursuant to which the
Company leases any real property or right in any Real Property. The Company has provided to Parent and Merger Sub accurate and complete
copies of all Leases. The Company has good, valid and subsisting title to its respective leasehold estates in the offices described on
Schedule 4.23(b), free and clear of all Liens other than Permitted Liens. The Company has not breached or violated any local zoning
ordinance, and no notice from any Person has been received by the Company or served upon the Company claiming any violation of any local
zoning ordinance.
(c) With
respect to each Lease: (i) it is valid, binding and enforceable in accordance with its terms and in full force and effect; (ii) all
rents and additional rents and other sums, expenses and charges due thereunder have been paid; (iii) the Company has been in peaceable
possession of the premises leased thereunder since the commencement of the original term thereof; (iv) no waiver, indulgence or
postponement of the Company’s obligations thereunder has been granted by the lessor; (v) the Company has performed all material
obligations imposed on it under such Lease and there exist no default or event of default thereunder by the Company or, to the Company’s
Knowledge, by any other party thereto; (vi) there exists, to the Company’s Knowledge, no occurrence, condition or act which,
with the giving of notice, the lapse of time or the happening of any further event or condition, would reasonably be expected to become
a default or event of default by the Company thereunder; (vii) there are no outstanding claims of breach or indemnification or notice
of default or termination thereunder and (viii) the Company has not exercised early termination options, if any, under such Lease.
The Company holds the leasehold estate established under the Leases free and clear of all Liens, except for Liens of mortgagees of the
Real Property on which such leasehold estate is located. The Real Property leased by the Company is in a state of maintenance and repair
in all material respects adequate and suitable for the purposes for which it is presently being used, and there are no material repair
or restoration works likely to be required in connection with such leased Real Property. The Company is in physical possession and actual
and exclusive occupation of the whole of the leased premises, none of which is subleased or assigned to another Person. Each Lease leases
all useable square footage of the premises located at each leased Real Property. With respect to the improvements made by the Company
that require restoration by the Company upon expiration or the earlier termination of the applicable Leases in accordance with the terms
of such Leases, the cost of the Company’s restoration obligations shall not exceed $100,000 in the aggregate.
(d) The
Company does not owe any brokerage commission with respect to any Real Property.
4.24 Tax
Matters. Except as set forth on Schedule 4.24:
(a) (i) The
Company has duly and timely filed all Tax Returns which are required to be filed by it, and has paid all Taxes (whether or not shown
on such Tax Returns) which have become due; (ii) all such Tax Returns are true, correct and complete and accurate in all respects;
(iii) there is no Action, pending or proposed in writing, with respect to Taxes of the Company; (iv) no statute of limitations
in respect of the assessment or collection of any Taxes of the Company for which a Lien may be imposed on any of the Company’s
assets has been waived or extended, which waiver or extension is in effect; (v) the Company has complied in all respects with all
applicable Laws relating to the reporting, payment, collection and withholding of Taxes and has duly and timely withheld or collected,
paid over to the applicable Taxing Authority and reported all Taxes (including income, social, security and other payroll Taxes) required
to be withheld or collected by the Company; (vi) the Company has (A) properly collected all sales Taxes required to be collected
in the time and manner required by applicable Law and remitted all such sales Taxes to the applicable Taxing authority in the time and
in the manner required by applicable Law and (B) properly requested, received and retained all necessary exemption certificates
and other documentation supporting any claimed exemption or waiver of Taxes on sales or similar transactions as to which it would otherwise
have been obligated to collect or withhold Taxes; (vii) there is no outstanding request for a ruling from any Taxing Authority,
request for consent by a Taxing Authority for a change in a method of accounting, subpoena or request for information by any Taxing Authority
or agreement with any Taxing Authority with respect to the Company; (viii) there is no Lien (other than Permitted Liens) for Taxes
upon any of the assets of the Company; (ix) no claim has ever been made by a Taxing Authority in a jurisdiction where the Company
has not paid any Tax or filed Tax Returns, asserting that the Company is or may be subject to Tax in such jurisdiction, the Company is
not nor has it ever been subject to Tax in any country other than the respective countries of incorporation or formation of the Company
members by virtue of having a permanent establishment or other place of business in that country, and the members of the Company are
and have always been tax residents solely in their respective countries of incorporation or formation; (x) the Company has provided
to Parent true, complete and correct copies of all Tax Returns relating to, and all audit reports and correspondence relating to each
proposed adjustment, if any, made by any Taxing Authority with respect to, any taxable period ending after December 31, 2018; (xi) there
is no outstanding power of attorney from the Company authorizing anyone to act on behalf of the Company in connection with any Tax, Tax
Return or Action relating to any Tax or Tax Return of Parent; (xii) the Company is not, and has never been, a party to any Tax sharing,
Tax indemnity or Tax allocation Contracts; (xiii) the Company has not been a member of an “affiliated group” within
the meaning of Section 1504(a) of the Code filing a consolidated federal income Tax Return (other than a group the common parent
of which was the Company); (xiv) the Company has no liability for the Taxes of any other Person: (1) under Treasury Regulation
Section 1.1502-6 (or any similar provision of applicable Law), (2) as a transferee or successor or by contract (other than
contracts entered into in the ordinary course of business the principal subject matter of which is not Taxes) or (3) otherwise by
operation of applicable Law; (xv) no issue has been raised in writing by a Taxing Authority in any prior Action relating to the
Company with respect to any Tax for any period which, by application of the same or similar principles, could reasonably be expected
to result in a proposed Tax deficiency of the Company for any other period; (xvi) the Company has not requested any extension of
time within which to file any Tax Return, other than extensions obtained in the ordinary course of business, which Tax Return has since
not been filed; (xvii) the Company has not disclosed on its Tax Returns any Tax reporting position taken in any Tax Return which
could result in the imposition of penalties under Section 6662 of the Code (or any comparable provisions of state, local or foreign
Law); (xviii) the Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of
the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code; and (xix) the Company has not
been a party to any “reportable transaction” or “listed transaction” as defined in Section 6707A(c) of
the Code and Treasury Regulations Section 1.6011-4(b).
(b) The
Company will not be required to include any item of income or exclude any item of deduction for any taxable period ending after the Closing
Date as a result of: (i) the use of, or change in, a method of accounting with respect to any transaction that occurred on or before
the Closing Date; (ii) any closing agreement described in Section 7121 of the Code (or similar provision of state, local or
foreign Law); (iii) any installment sale or open sale transaction disposition made in a pre-Closing Tax period; (iv) any prepaid
amount received in a pre-Closing Tax period; or (v) any intercompany transaction or excess loss account described in Treasury Regulations
under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax law).
(c) The
unpaid Taxes of the Company (i) did not, as of the most recent fiscal month end, exceed the reserve for Tax liability (rather than
any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Unaudited Financial
Statements and (ii) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with
the past custom and practice of the Company in filing its Tax Return.
(d) The
Company has been in compliance in all respects with all applicable transfer pricing laws and legal requirements.
(e) The
Company is not aware of any fact or circumstance that would reasonably be expected to prevent the Merger from qualifying as a “reorganization”
within the meaning of Section 368(a) of the Code.
(f) The
Company has not deferred the withholding or remittance of any Applicable Taxes related or attributable to any Applicable Wages for any
employees of the Company and shall not defer the withholding or remittance any Applicable Taxes related or attributable to Applicable
Wages for any employees of the Company up to and through and including Closing Date, notwithstanding Internal Revenue Service Notice
2020-65 (or any comparable regime for state or local Tax purposes).
4.25 Environmental
Laws. The Company has materially complied and is in material compliance with all Environmental Laws, and there are no Actions pending
or, to the Knowledge of the Company, threatened against the Company alleging any failure to so comply. The Company has not (a) received
any notice of any alleged claim, violation of or liability under any Environmental Law nor any claim of potential liability with regard
to any Hazardous Material, which has not heretofore been cured or for which there is any remaining liability; (b) disposed of, emitted,
discharged, handled, stored, transported, used or released any Hazardous Material, arranged for the disposal, discharge, storage or release
of any Hazardous Material, or exposed any employee or other individual or property to any Hazardous Material so as to give rise to any
liability or corrective or remedial obligation under any Environmental Laws; or (c) entered into any agreement that may require
it to guarantee, reimburse, pledge, defend, hold harmless or indemnify any other Person with respect to liabilities arising out of Environmental
Laws or the Hazardous Material Activity, in each case, except as has not had and would not be reasonably expected to have, individually
or in the aggregate, a Material Adverse Effect in respect of the Company. There are no Hazardous Materials in, on or under any properties
owned, leased or used at any time by the Company that could give rise to any liability or corrective or remedial obligation of the Company
under any Environmental Laws.
4.26 Finders’
Fees. There is no investment banker, broker, finder or other intermediary which has been retained by or is authorized to act on behalf
of the Company or any other member the Company or any of its respective Affiliates who might be entitled to any fee or commission from
the Company, any other member of the Company, Merger Sub, Parent or any of its respective Affiliates upon consummation of the transactions
contemplated by this Agreement or any of the Additional Agreements.
4.27 Powers
of Attorney, Suretyships and Bank Accounts. The Company does not have any general or special powers of attorney outstanding (whether
as grantor or grantee thereof) or any obligation or liability (whether actual, accrued, accruing, contingent or otherwise) as guarantor,
surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of the obligation of any Person. Schedule 4.27
sets forth, as of the date hereof, a true, complete and correct list of each bank, trust company, savings institution, brokerage firm,
mutual fund or other financial institution with which the Company has an account or safe deposit box, including the names and identification
of all Persons authorized to draw thereon or have access thereto.
4.28 Directors
and Officers. Schedule 4.28 sets forth a complete and correct list of all directors and officers of each member of the Company.
4.29 Anti-Money
Laundering Laws.
(a) The
Company currently is and, since January 1, 2017, has been, in compliance with applicable Laws in all applicable jurisdictions related
to (i) anti-corruption or anti-bribery, including the U.S. Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1,
et seq., and any other equivalent or comparable Laws of other countries (collectively, “Anti-Corruption Laws”), (ii) economic
sanctions administered, enacted or enforced by any Authority (collectively, “Sanctions Laws”), (iii) export controls,
including the U.S. Export Administration Regulations, 15 C.F.R. §§ 730, et seq., and any other equivalent or comparable Laws
of other countries (collectively, “Export Control Laws”), (iv) anti-money laundering, including the Money Laundering
Control Act of 1986, 18 U.S.C. §§ 1956, 1957, and any other equivalent or comparable Laws of other countries; (v) anti-boycott
regulations, as administered by the U.S. Department of Commerce; and (vi) importation of goods, including Laws administered by the
U.S. Customs and Border Protection, Title 19 of the U.S.C. and C.F.R., and any other equivalent or comparable Laws of other countries
(collectively, “International Trade Control Laws”).
(b) Neither
the Company nor, to the Knowledge of the Company, any Representative of the Company (acting on behalf of the Company), is or is acting
under the direction of, on behalf of or for the benefit of a Person that is, (i) the subject of Sanctions Laws or identified on
any sanctions or similar lists administered by an Authority, including the U.S. Department of the Treasury’s Specially Designated
Nationals List, the U.S. Department of Commerce’s Denied Persons List and Entity List, the U.S. Department of State’s Debarred
List, HM Treasury’s Consolidated List of Financial Sanctions Targets and the Investment Bank List, or any similar list enforced
by any other relevant Authority, as amended from time to time, or any Person owned or controlled by any of the foregoing (collectively,
“Prohibited Party”); (ii) the target of any Sanctions Laws; (iii) located, organized or resident in a country
or territory that is, or whose government is, the target of comprehensive trade sanctions under Sanctions Laws, including, as of the
date of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria; or (iv) an officer or employee of any Authority or
public international organization, or officer of a political party or candidate for political office. Neither the Company nor, to the
Knowledge of the Company, any Representative of the Company (acting on behalf of the Company), (A) has participated in any transaction
involving a Prohibited Party, or a Person who is the target of any Sanctions Laws, or any country or territory that was during such period
or is, or whose government was during such period or is, the target of comprehensive trade sanctions under Sanctions Laws, (B) to
the Knowledge of the Company, has exported (including deemed exportation) or re-exported, directly or indirectly, any commodity, software,
technology, or services in violation of any applicable Export Control Laws or (C) has participated in any transaction in violation
of or connected with any purpose prohibited by Anti-Corruption Laws or any applicable International Trade Control Laws, including support
for international terrorism and nuclear, chemical, or biological weapons proliferation.
(c) The
Company has not received written notice of, nor, to the Knowledge of the Company, any of its Representatives is or has been the subject
of, any investigation, inquiry or enforcement proceedings by any Authority regarding any offense or alleged offense under Anti-Corruption
Laws, Sanctions Laws, Export Control Laws or International Trade Control Laws (including by virtue of having made any disclosure relating
to any offense or alleged offense) and, to the Knowledge of the Company, there are no circumstances likely to give rise to any such investigation,
inquiry or proceeding.
4.30 Insurance.
All liability, property, workers’ compensation and other insurance policies currently in effect that insure the property, assets
or business of the Company or its employees (other than self-obtained insurance policies by such employees) are set forth on Schedule
4.30(1), and such policies are in full force and effect. All premiums with respect to such policies covering all periods up to and
including the Closing Date have been or will be paid when due, no notice of cancellation or termination has been received with respect
to any such policy which was not replaced on substantially similar terms prior to the date of such cancellation or termination and there
is no claim by the Company or, to the Company’s Knowledge, any other Person pending under any of such insurance policies as to
which coverage has been questioned, denied or disputed by the underwriters or issuers of such policies. There is no existing default
or event which, with or without the passage of time or the giving of notice or both, would constitute noncompliance with, or a default
under, any such policy or entitle any insurer to terminate or cancel any such policy. Such policies will not in any way be affected by
or terminate or lapse by reason of the transactions contemplated by this Agreement or the Additional Agreements. The insurance policies
to which the Company is a party are sufficient for compliance with all requirements of all Material Contracts to which the Company is
a party or by which the Company is bound, and, in light of the nature of the Company’s business, assets and properties, are in
amounts and have coverage as are carried by Persons engaged in similar business and having similar assets and properties. Since January 1,
2017, the Company has not been refused any insurance with respect to its assets or operations or had its coverage limited by any insurance
carrier to which it has applied for any such insurance or with which it has carried insurance. The Company does not have any self-insurance
arrangements. Except as set forth on Schedule 4.30(2), no fidelity bonds, letters of credit, performance bonds or bid bonds
have been issued to or in respect of the Company.
4.31 Related
Party Transactions. Except as set forth on Schedule 4.31, as contemplated by this Agreement or as provided in the Company
Financial Statements, no Affiliate of the Company, current or former director, manager, stockholder, member, partner or other equity
holder, officer or employee of any Person in the Company or any immediate family member or Affiliate of any of the foregoing (a) is
a party to any Contract, or has otherwise entered into any transaction, understanding or arrangement, with any member of the Company,
(b) owns any asset, property or right, tangible or intangible, which is used by any member of the Company, or (c) is a borrower
or lender, as applicable, under any Indebtedness owed by or to the Company since January 1, 2017.
4.32 No
Trading or Short Position. None of the Company, any other member of the Company, or any of their respective managers and officers,
members and employees has engaged in any short sale of Parent’s voting stock or any other type of hedging transaction involving
Parent’s securities (including depositing shares of Parent’s securities with a brokerage firm where such securities are made
available by the broker to other customers of the firm for purposes of hedging or short selling Parent’s securities).
4.33 Not
an Investment Company. Neither the Company nor any other member of the Company is an “investment company” within the
meaning of the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder.
4.34 Information
Supplied. None of the information supplied or to be supplied by the Company expressly for inclusion or incorporation by reference
in the filings with the SEC and mailings to Parent’s stockholders with respect to the solicitation of proxies to approve the transactions
contemplated by this Agreement and the Additional Agreements, if applicable, will, at the time of the Parent Stockholder Meeting or at
the S-4 Effective Date, as the case may be, 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 (subject to the qualifications and limitations set forth in the materials provided by the Company or included in the Parent
SEC Documents, the Additional Parent SEC Documents, the SEC Statement or any Other Filing). Notwithstanding the foregoing sentence, the
Company makes no representation or warranty or covenant with respect to statements made or incorporated by reference therein in any of
the foregoing documents based on information supplied by Parent for inclusion therein.
Article V
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Except as disclosed in the
Parent SEC Documents filed and publicly available in unredacted form no later than the second (2nd) day prior to the date
of this Agreement (to the extent the qualifying nature of such disclosure is reasonably apparent on its face, other than any risk factor
disclosures or other similar cautionary or predictive statements therein; provided that nothing disclosed in any such Parent SEC Document
will be deemed to modify or qualify the representations and warranties set forth in Section 5.1 (Corporate Existence and
Power), Section 5.2 (Corporate Authorization) and Section 5.10 (Capitalization)), Parent and Merger Sub
(each sometimes referred to individually as a “Parent Party” and collectively as the “Parent Parties”)
hereby represent and warrant to the Company as follows:
5.1 Corporate
Existence and Power. Each Parent Party is a corporation duly incorporated, validly existing and in good standing under the laws of
the State of Delaware. Each Parent Party has all requisite power and authority, corporate and otherwise, to own, lease or otherwise hold
and operate its properties and other assets and to carry on its business as currently conducted. Each Parent Party is duly licensed or
qualified to do business and is in good standing (with respect to jurisdictions that recognize that concept) in each jurisdiction in
which the nature of its business or the ownership, leasing or operation of its properties or other assets makes such qualification, licensing
or good standing necessary, except where the failure to be so qualified, licensed or in good standing, individually or in the aggregate,
has not had and would not reasonably be expected to have a Material Adverse Effect in respect of the Parent Parties. Since their organization,
the Parent Parties have not conducted any business activities other than activities directed toward the accomplishment of a business
combination. Except as set forth in their Organizational Documents, there is no agreement, exclusive license or Order binding upon a
Parent Party or to which any Parent Party is a party that prohibits or materially restricts any business practice of the Parent Parties,
any acquisition of property by the Parent Parties, or the conduct of business by the Parent Parties. Merger Sub does not hold and has
not held any material assets or incurred any material liabilities, and has not carried on any business activities other than in connection
with the Merger.
5.2 Corporate
Authorization. Each of the Parent Parties has all requisite corporate power and authority to execute and deliver this Agreement and
the Additional Agreements to which it is a party and to consummate the transactions contemplated hereby and thereby, in the case of the
Merger, subject to receipt of the Parent Stockholder Approval. The execution and delivery by each of the Parent Parties of this Agreement
and the Additional Agreements to which it is a party and the consummation by each of the Parent Parties of the transactions contemplated
hereby and thereby have been duly authorized by all necessary corporate action on the part of such Parent Party. No other corporate proceedings
on the part of such Parent Party are necessary to authorize this Agreement or the Additional Agreements to which it is a party or to
consummate the transactions contemplated by this Agreement (other than, in the case of the Merger, the receipt of the Parent Stockholder
Approval) or the Additional Agreements. This Agreement and the Additional Agreements to which such Parent Party is a party (including
with respect to the PIPE Investment) have been duly executed and delivered by such Parent Party and, assuming the due authorization,
execution and delivery by each of the other parties hereto and thereto (other than a Parent Party), this Agreement and the Additional
Agreements to which such Parent Party is a party constitute a legal, valid and binding obligation of such Parent Party, enforceable against
such Parent Party in accordance with their respective terms, subject to the Enforceability Exceptions. The affirmative vote of holders
of a majority of the then outstanding shares of Parent Common Stock present in person or by proxy and entitled to vote at the Parent
Stockholder Meeting, assuming a quorum is present (the “Parent Stockholder Approval”), is the only vote of the holders
of any of Parent’s capital stock necessary to adopt this Agreement and approve the Merger and the consummation of the other transactions
contemplated hereby. The affirmative vote or written consent of the sole stockholder of the Merger Sub is the only vote of the holders
of any of Merger Sub’s capital stock necessary to adopt this Agreement and approve the Merger and the consummation of the other
transactions contemplated hereby.
5.3 Governmental
Authorization. Assuming the accuracy of the representations and warranties of the Company set forth in Section 4.3, none
of the execution, delivery or performance of this Agreement or any Additional Agreement by a Parent Party or the consummation by a Parent
Party of the transactions contemplated hereby and thereby requires any consent, approval, license or other action by or in respect of,
or registration, declaration or filing with any Authority except for (a) the filing of the Certificate of Merger with the Secretary
of State of the State of Delaware pursuant to the DGCL, and (b) the filing of the Articles of Merger with the Secretary of State
of the State of Nevada pursuant to the Nevada Merger Act.
5.4 Non-Contravention.
The execution, delivery and performance by a Parent Party of this Agreement or the consummation by a Parent Party of the transactions
contemplated hereby and thereby do not and will not (a) contravene or conflict with the organizational or constitutive documents
of the Parent Parties, (b) contravene or conflict with or constitute a violation of any provision of any Law or Order binding upon
or applicable to the Parent Parties or to any of their respective properties, rights or assets, (c) except for the Contracts listed
on Schedule 5.4 requiring consents (but only as to the need to obtain such consents), (i) require consent, approval or waiver
under, (ii) constitute a default under or breach of (with or without the giving of notice or the passage of time or both), (iii) violate,
(iv) give rise to any right of termination, cancellation, amendment or acceleration of any right or obligation of a Parent Party
or to a loss of any material benefit to which any Parent Party is entitled, in the case of each of clauses (i) – (iv), under
any provision of any Permit, Contract or other instrument or obligations binding upon any Parent Party or any of their respective properties,
rights or assets, (d) result in the creation or imposition of any Lien (except for Permitted Liens) on any of a Parent Party’s
properties, rights or assets, or (e) require any consent, approval or waiver from any Person pursuant to any provision of the amended
and restated certificate of incorporation of Parent or bylaws of the Parent or the organizational or constitutive documents of any other
Parent Party, except for such consent, approval or waiver which shall be obtained (and a copy provided to the Company) prior to the Closing.
5.5 Internal
Controls. Except as is 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 Exchange Act, since its initial public offering, the Parent has
established and maintained disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange
Act). Such disclosure controls and procedures are designed to ensure that material information relating to the Parent, including its
consolidated Subsidiaries, is made known on a timely basis to the individuals responsible for the preparation of Parent’s period
reports required under the Exchange Act.
5.6 Undisclosed
Liabilities. Except for the Parent Transaction Expenses, there is no liability, debt or obligation of or claim or judgment against
the 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, debts, claims, judgments and obligations (a) reflected or reserved for on the
financial statements or disclosed in the notes thereto included in the Parent SEC Documents, (b) that have arisen since the date
of the most recent balance sheet included in the Parent SEC Documents in the ordinary course of business of the Parent and Merger Sub,
(c) that are expenses incurred in connection with the negotiation, execution and performance of this Agreement, any Additional Agreements
or any of the transactions contemplated hereby or thereby, or (d) which is not, or would not reasonably be expected to be, material.
5.7 Stock
Exchange Listing. The Parent Common Stock, Parent Units, and Parent Warrants are listed on Nasdaq, with trading tickers “RCAC,”
“RCACU” and “RCACW.” The Parent is, as of the date hereof, in compliance with the rules of Nasdaq and, as
of the date hereof, there is no Action or proceeding pending or, to the knowledge of the Parent, threatened against the Parent by Nasdaq
or the SEC with respect to any intention by such entity to deregister the Parent Common Stock, Parent Units, or Parent Warrants or terminate
the listing of the Parent Common Stock, the Parent Units or the Parent Warrants on the Nasdaq. None of the Parent or its Affiliates has
taken any action in an attempt to terminate the registration of the Parent Common Stock, the Parent Units or the Parent Warrants under
the Exchange Act except as contemplated by this Agreement.
5.8 Finders’
Fees. Except for the Persons identified on Schedule 5.8, there is no investment banker, broker, finder or other intermediary
which has been retained by or is authorized to act on behalf of the Parent Parties or their Affiliates who might be entitled to any fee
or commission from the Company or any of its Affiliates upon consummation of the transactions contemplated by this Agreement or any of
the Additional Agreements.
5.9 Issuance
of Shares. The Closing Merger Consideration Shares, when issued in accordance with this Agreement, will be duly authorized and validly
issued, and will be fully paid and nonassessable.
5.10 Capitalization.
(a) As
of the date hereof, the authorized capital stock of Parent consists of 180,000,000 shares of Parent Class A Common Stock, par value
$0.0001 per share, of which 16,500,000 shares of Class A Common Stock are issued and outstanding; 20,000,000 shares of Parent Class B
Common Stock, $0.0001 par value per share, of which 4,125,000 are issued and outstanding; and 1,000,000 shares of Parent Preferred Stock,
$0.0001 par value, of which none are issued and outstanding. In addition, as of the date hereof, 14,500,000 Parent Warrants (inclusive
of Parent Warrants included in any outstanding Parent Units and the Parent Private Warrants) exercisable for 14,500,000 shares of Parent
Class A Common Stock are issued and outstanding. For the avoidance of doubt, the foregoing issued and outstanding shares do not
give effect to the PIPE Investment. As of the date hereof, no other shares of capital stock or other voting securities of Parent are
issued, reserved for issuance or outstanding. All issued and outstanding shares of Parent Common Stock are duly authorized, validly issued,
fully paid and nonassessable and are not subject to, and were not issued in violation of, any purchase option, right of first refusal,
preemptive right, subscription right or any similar right under any provision of the DGCL, Parent’s organizational documents or
any contract to which Parent is a party or by which Parent is bound. As of the date hereof, except as set forth in Parent’s organizational
documents, there are no outstanding contractual obligations of Parent to repurchase, redeem or otherwise acquire any shares of Parent
Common Stock or any capital equity of Parent. As of the date hereof, there are no outstanding contractual obligations of Parent to provide
funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person. As of the date hereof,
no bonds, debentures, notes or other Indebtedness of Parent having the right to vote (or convertible into, or exchangeable for, securities
having the right to vote) on any matters on which stockholders of Parent may vote, are issued or outstanding.
(b) Merger
Sub is authorized to issue 1,000 shares of common stock, par value $0.0001 per share (“Merger Sub Common Stock”),
of which 1,000 shares of Merger Sub Common Stock are issued and outstanding as of the date hereof. No other shares of capital stock or
other voting securities of Merger Sub are issued, reserved for issuance or outstanding. All issued and outstanding shares of Merger Sub
Common Stock are duly authorized, validly issued, fully paid and nonassessable and are not subject to, and were not issued in violation
of, any purchase option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the
DGCL, Merger Sub’s organizational documents or any contract to which Merger Sub is a party or by which Merger Sub is bound. There
are no outstanding contractual obligations of Merger Sub to repurchase, redeem or otherwise acquire any shares of Merger Sub Common Stock
or any equity capital of Merger Sub. There are no outstanding contractual obligations of Merger Sub to provide funds to, or make any
investment (in the form of a loan, capital contribution or otherwise) in, any other Person. No bonds, debentures, notes or other Indebtedness
of Merger Sub having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters
on which stockholders of Merger Sub may vote, are issued or outstanding.
5.11 Information
Supplied. None of the information supplied or to be supplied by the Parent Parties expressly for inclusion or incorporation by reference
in the filings with the SEC and mailings to Parent’s stockholders with respect to the solicitation of proxies to approve the transactions
contemplated by this Agreement and the Additional Agreements, if applicable, will, at the date of filing or mailing, at the time of the
Parent Stockholder Meeting or at the Effective Time, as the case may be, 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 (subject to the qualifications and limitations set forth in the materials provided by Parent or included
in the Parent SEC Documents, the Additional Parent SEC Documents, the SEC Statement or any Other Filing).
5.12 Trust
Fund. As of the date of this Agreement, Parent has approximately $36,882,032.21 in the trust fund established by Parent for the benefit
of its public stockholders (the “Trust Fund”) in a trust account (the “Trust Account”) maintained
by Continental Stock Transfer & Trust Company, a New York limited purpose trust company (the “Trustee”), at
Bank of America, N.A., or at another U.S. chartered commercial bank with consolidated assets of $100 billion or more, and such monies
are invested in “government securities” (as such term is defined in the Investment Company Act of 1940) and held in trust
by the Trustee pursuant to the Investment Management Trust Agreement dated as of December 16, 2021, between Parent and the Trustee
(the “Trust Agreement”). The Trust Agreement is valid and in full force and effect and enforceable in accordance with
its terms, except as may be limited by the Enforceability Exceptions, and has not been amended or modified. There are no separate agreements,
side letters or other agreements or understandings (whether written or unwritten, express or implied) that would cause the description
of the Trust Agreement in the Parent SEC Documents to be inaccurate in any material respect or that would entitle any Person (other than
stockholders of Parent holding shares of Parent Common Stock sold in Parent’s IPO who shall have elected to redeem their shares
of Parent Common Stock pursuant to Parent’s amended and restated certificate of incorporation) 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 except in accordance with the Trust
Agreement and Parent’s amended and restated certificate of incorporation. The Parent has performed all material obligations required
to be performed by it to date under, and is not in material default or delinquent in performance or any other respect (claimed or actual)
in connection with, the Trust Agreement, and, to the knowledge of Parent, no event has occurred which, with due notice or lapse of time
or both, would reasonably be expected to constitute such a material default thereunder. There are no claims or proceedings pending with
respect to the Trust Account.
5.13 Board
Approval.
(a) By
resolutions duly adopted (and not thereafter modified or rescinded) by Parent’s Board of Directors (including any required committee
or subgroup of such board), the Board of Directors of Parent has unanimously (i) approved the execution, delivery and performance
by Parent and Merger Sub of this Agreement, the Additional Agreements to which it is a party and the consummation of the transactions
contemplated hereby and thereby, including the Merger, on the terms and subject to the conditions set forth herein and therein; (ii) determined
that this Agreement, the Additional Agreements to which a Parent Party is a party, and the transactions contemplated hereby and thereby,
upon the terms and subject to the conditions set forth herein, are advisable and in the best interests of Parent and Parent’s stockholders;
(iii) directed that the Parent Proposals be submitted to the Parent’s stockholders for consideration at the Parent Stockholder
Meeting; (iv) determined that the transactions contemplated hereby constitutes a “Business Combination” as such term
is defined in Parent’s amended and restated certificate of incorporation; and (v) recommended to the Parent’s stockholders
to adopt and approve each of the Parent Proposals (“Parent Board Recommendation”).
(b) By
resolutions duly adopted (and not thereafter modified or rescinded) by Merger Sub’s Board of Directors (including any required
committee or subgroup of such board), Merger Sub’s Board of Directors has, unanimously (i) approved the execution, delivery
and performance by Merger Sub of this Agreement, the Additional Agreements to which it is a party and the consummation of the transactions
contemplated hereby and thereby, including the Merger, on the terms and subject to the conditions set forth herein and therein, (ii) declared
the advisability of the transactions contemplated by this Agreement, (iii) determined that the transactions contemplated hereby
are in the best interests of its sole stockholder and (iv) recommended to Merger Sub’s sole stockholder to adopt this Agreement.
5.14 Parent
SEC Documents and Financial Statements.
(a) Except
as set forth on Schedule 5.14, Parent has filed all forms, reports, schedules, statements and other documents, including any exhibits
thereto, required to be filed or furnished by Parent with the SEC since Parent’s formation under the Exchange Act or the Securities
Act, together with any amendments, restatements or supplements thereto, and will use commercially reasonable efforts to file all such
forms, reports, schedules, statements and other documents required to be filed subsequent to the date of this Agreement and prior to
the Closing (the “Additional Parent SEC Documents”). Parent has made available to the Company true and complete copies
in the form filed with the SEC of all of the following, except to the extent available in full without redaction on the SEC’s website
through EDGAR for at least two (2) Business Days prior to the date of this Agreement: (i) Parent’s Annual Reports on
Form 10-K that have been actually filed by Parent or required to be filed by Parent prior to the date hereof, (ii) Parent’s
Quarterly Reports on Form 10-Q that have been actually filed by Parent or required to be filed by Parent prior to the date hereof,
(iii) all proxy statements relating to Parent’s meetings of stockholders (whether annual or special) held, and all information
statements relating to stockholder consents, since the beginning of the first fiscal year referred to in clause (i) above, (iv) its
Form 8-Ks that have been actually filed by Parent or required to be filed by Parent prior to the date hereof referred to in clause
(i) above, and (v) all other forms, reports, registration statements and other documents (other than preliminary materials
if the corresponding definitive materials have been provided to the Company pursuant to this Section 5.14) filed by Parent
with the SEC since Parent’s formation (the forms, reports, registration statements and other documents referred to in clauses (i) through
(iv) above, whether or not available through EDGAR, collectively, the “Parent SEC Documents”).
(b) Parent
SEC Documents were, and the Additional Parent SEC Documents will be, prepared in all material respects in accordance with the requirements
of the Securities Act, the Exchange Act, and the Sarbanes-Oxley Act, as the case may be, and the rules and regulations thereunder.
Parent SEC Documents did not, and the Additional Parent SEC Documents will not, at the time they were or are filed, as the case may be,
with the SEC (except to the extent that information contained in any Parent SEC Document or Additional Parent SEC Document has been or
is revised or superseded by a later filed Parent SEC Document or Additional Parent SEC Document, then on the date of such filing) contain
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make
the statements made therein, in the light of the circumstances under which they were made, not misleading; provided, however,
that the foregoing does not apply to statements in or omissions in any information supplied or to be supplied by the Company expressly
for inclusion or incorporation by reference in the Parent SEC Documents.
(c) The
financial statements and notes contained or incorporated by reference in the Parent SEC Documents and the Additional Parent SEC Documents
(collectively, the “Parent Financial Statements”) have been prepared in conformity with U.S. GAAP applied on a consistent
basis and in accordance with the requirements of the Public Company Accounting Oversight Board for public companies. The Parent Financial
Statements fairly present (or with respect such financial statements contained or incorporated by reference in the Additional Parent
SEC Documents, will fairly present) in all material respects, the financial position of Parent as of the dates thereof and the results
of operations of Parent for the periods reflected therein subject, in the case of the Unaudited Financial Statements, to normal audit
adjustments and the absence of notes thereto. The Parent Financial Statements were (or with respect such financial statements contained
or incorporated by reference in the Additional Parent SEC Documents, will be) prepared from the Books and Records of Parent in all material
respects.
(d) Except:
(i) as specifically disclosed, reflected or fully reserved against on the Parent Financial Statements (including the notes thereto);
(ii) for liabilities and obligations incurred in the ordinary course of business since April 5, 2021; (iii) for liabilities
that are executory obligations arising under Contracts to which any Parent Party is a party (none of which, with respect to the liabilities
described in clause (ii) and this clause (iii) results from, arises out of, or relates to any breach or violation of, or default
under, a Contract or applicable Law); and (iv) for expenses incurred in connection with the negotiation, execution and performance
of this Agreement, any Additional Agreement or any of the transactions contemplated hereby or thereby, Parent does not have any material
liabilities, debts or obligations of any nature (whether accrued, fixed or contingent, liquidated or unliquidated, asserted or unasserted
or otherwise).
(e) As
used in this Section 5.14, the term “file” shall be broadly construed to include any manner in which a document
or information is furnished, supplied or otherwise made available to the
5.15 Affiliate
Transactions. Except as described in Parent SEC Documents, there are no transactions, agreements, arrangements or understandings
between Parent or any of its subsidiaries, on the one hand, and any director, officer, employee, stockholder or Affiliate of Parent or
any of its subsidiaries, on the other hand.
5.16 Litigation.
There is no (a) Action pending or, to the Knowledge of Parent, threatened against Parent or any of its subsidiaries or any of its
or their respective officers or directors or that affects its or their assets or properties or which, as of the date hereof, in any manner
challenges or seeks to prevent, enjoin, alter or delay the transactions contemplated by this Agreement or any Additional Agreement, or
(b) Order outstanding against Parent or any of its subsidiaries or that affects its or their assets or properties. Neither Parent
nor any of its subsidiaries is party to a settlement or similar agreement regarding any of the matters set forth in the preceding sentence
that contains any ongoing obligations, restrictions or liabilities (of any nature) that are material to Parent and its subsidiaries.
5.17 Compliance
with Laws.
(a) No
Parent Party or, to the Knowledge of Parent, any Representative or other Person acting on behalf of a Parent Party, is in violation in
any material respect of, and, since April 5, 2021, no such Person has failed to be in compliance in all material respects with,
all applicable Laws and Orders. Since April 5, 2021, (i) no event has occurred or circumstance exists that (with or without
notice or due to lapse of time) would reasonably constitute or result in a violation by any Parent Party of, or failure on the part of
any Parent Party to comply with, or any liability suffered or incurred by any Parent Party in respect of any violation of or material
noncompliance with, any Laws, Orders or policies by Authority that are or were applicable to it or the conduct or operation of its business
or the ownership or use of any of its assets and (ii) no Action by any Authority is pending, or to the Knowledge of Parent, threatened,
alleging any such violation or noncompliance by the Company. Since April 5, 2021, the Parent Parties have not been threatened in
writing or, to Parent’s Knowledge, orally to be charged with, or given written or, to Parent’s Knowledge, oral notice of
any violation of any Law or any judgment, order or decree entered by any Authority. Without limiting the generality of the foregoing,
the Parent Parties are, and since April 5, 2021, have been, to the Knowledge of Parent, in compliance in all material respects with:
(i) every Law applicable to the Parent Parties due to the specific nature of their business, including the Data Protection Laws;
(ii) the Foreign Corrupt Practices Act and any comparable or similar Law of any jurisdiction applicable to any Parent Party; and
(iii) every Law regulating or covering conduct in the workplace, including regarding sexual harassment or, on any legally impermissible
basis, a hostile work environment. Since April 5, 2021, the Parent Parties have not been threatened or charged in writing (or to
Parent’s Knowledge, orally) with or given written (or to Parent’s Knowledge, oral) notice of any violation of any Data Protection
Law, the Foreign Corrupt Practices Act or any other Law referred to in or generally described in foregoing sentence by any Authority
and, to Parent’s Knowledge, the Parent Parties are not under any investigations with respect to any such Law.
(b) Neither
the Parent Parties nor, to the Knowledge of Parent, any Representative or other Person acting on behalf of the Parent Parties is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department.
5.18 Absence
of Certain Changes. From the date of the latest balance sheet included in the Parent Financial Statements until the date of this
Agreement, (a) the Parent Parties have conducted their respective businesses in the ordinary course and in a manner consistent with
past practices; (b) there has not been any Material Adverse Effect in respect of Parent Parties; and (c) neither Parent Party
has taken any action that, if taken after the date of this Agreement and prior to the consummation of the Merger, would require the consent
of the Company pursuant to Section 6.1 and the Company has not given consent.
5.19 Indebtedness.
Except as set forth in Parent SEC Documents, Parent does not have any Indebtedness.
5.20 Tax
Matters.
(a) (i) Parent
has duly and timely filed all Tax Returns which are required to be filed by it, and has paid all Taxes (whether or not shown on such
Tax Returns) which have become due; (ii) all such Tax Returns are true, correct and complete and accurate in all respects; (iii) there
is no Action, pending or proposed in writing, with respect to Taxes of Parent; (iv) no statute of limitations in respect of the
assessment or collection of any Taxes of Parent for which a Lien may be imposed on any of Parent’s assets has been waived or extended,
which waiver or extension is in effect; (v) Parent has complied in all respects with all applicable Laws relating to the reporting,
payment, collection and withholding of Taxes and has duly and timely withheld or collected, paid over to the applicable Taxing Authority
and reported all Taxes (including income, social, security and other payroll Taxes) required to be withheld or collected by Parent; (vi) Parent
has (A) properly collected all sales Taxes required to be collected in the time and manner required by applicable Law and remitted
all such sales Taxes to the applicable Taxing authority in the time and in the manner required by applicable Law and properly requested,
received and retained all necessary exemption certificates and other documentation supporting any claimed exemption or waiver of Taxes
on sales or similar transactions as to which it would otherwise have been obligated to collect or withhold Taxes; (vii) there is
no outstanding request for a ruling from any Taxing Authority, request for consent by a Taxing Authority for a change in a method of
accounting, subpoena or request for information by any Taxing Authority or agreement with any Taxing Authority with respect to Parent;
(viii) there is no Lien (other than Permitted Liens) for Taxes upon any of the assets of Parent; (ix) no claim has ever been
made by a Taxing Authority in a jurisdiction where Parent has not paid any Tax or filed Tax Returns, asserting that Parent is or may
be subject to Tax in such jurisdiction, Parent is not nor has it ever been subject to Tax in any country other than the respective countries
of incorporation or formation of Parent members by virtue of having a permanent establishment or other place of business in that country,
and the members of Parent are and have always been tax residents solely in their respective countries of incorporation or formation;
(x) Parent has provided to Company true, complete and correct copies of all Tax Returns relating to, and all audit reports and correspondence
relating to each proposed adjustment, if any, made by any Taxing Authority with respect to, any taxable period since its formation; (xi) there
is no outstanding power of attorney from Parent authorizing anyone to act on behalf of Parent in connection with any Tax, Tax Return
or Action relating to any Tax or Tax Return of Parent; (xii) the Parent is not, and has never been, a party to any Tax sharing,
Tax indemnity or Tax allocation Contracts ; (xiii) Parent has not been a member of an “affiliated group” within the
meaning of Section 1504(a) of the Code filing a consolidated federal income Tax Return (other than a group the common parent
of which was the Parent); (xiv) Parent has no liability for the Taxes of any other Person: (1) under Treasury Regulation Section 1.1502-6
(or any similar provision of applicable Law), (2) as a transferee or successor or by contract (other than contracts entered into
in the ordinary course of business the principal subject matter of which is not Taxes) or (3) otherwise by operation of applicable
Law; (xv) no issue has been raised in writing by a Taxing Authority in any prior Action relating to the Parent with respect to any
Tax for any period which, by application of the same or similar principles, could reasonably be expected to result in a proposed Tax
deficiency of the Parent for any other period; (xvi) Parent has not requested any extension of time within which to file any Tax
Return, other than extensions obtained in the ordinary course of business, which Tax Return has since not been filed; (xvii) the
Parent has not disclosed on its Tax Returns any Tax reporting position taken in any Tax Return which could result in the imposition of
penalties under Section 6662 of the Code (or any comparable provisions of state, local or foreign Law); (xviii) the Parent
is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code
during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code; and (xix) the Parent has not been a party
to any “reportable transaction” or “listed transaction” as defined in Section 6707A(c) of the Code
and Treasury Regulations Section 1.6011-4(b).
(b) Parent
will not be required to include any item of income or exclude any item of deduction for any taxable period ending after the Closing Date
as a result of: (i) the use of, or change in, a method of accounting with respect to any transaction that occurred on or before
the Closing Date (ii) any closing agreement described in Section 7121 of the Code (or similar provision of state, local or
foreign Law); (iii) any installment sale or open sale transaction disposition made in a pre-Closing Tax period; (iv) any prepaid
amount received in a pre-Closing Tax period; or (v) any intercompany transaction or excess loss account described in Treasury Regulations
under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax law).
(c) The
unpaid Taxes of Parent (i) did not, as of the most recent fiscal month end, exceed the reserve for Tax liability (rather than any
reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Parent Financial Statements
and (ii) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom
and practice of Parent in filing its Tax Return.
(d) Parent
has been in compliance in all material respects with all applicable transfer pricing laws and legal requirements.
(e) Parent
is not aware of any fact or circumstance that would reasonably be expected to prevent the Merger from qualifying as a “reorganization”
within the meaning of Section 368(a) of the Code.
(f) Parent
has not deferred the withholding or remittance of any Applicable Taxes related or attributable to any Applicable Wages for any employees
of Parent and shall not defer the withholding or remittance any Applicable Taxes related or attributable to Applicable Wages for any
employees of Parent up to and through and including Closing Date, notwithstanding Internal Revenue Service Notice 2020-65 (or any comparable
regime for state or local Tax purposes).
5.21 PIPE
Investments. Parent has delivered to the Company true, correct and complete copies of each of the Subscription Agreements and the
PIPE Registration Rights Agreements entered into by Parent with the PIPE Investors. To the Knowledge of Parent and assuming the accuracy
of the representations and warranties set forth in the Subscription Agreements, with respect to each PIPE Investor, as of the date of
this Agreement, the Subscription Agreements are in full force and effect and have not been withdrawn or terminated, or otherwise amended
or modified, and no withdrawal, termination, amendment or modification is contemplated by Parent. Each Subscription Agreement is a legal,
valid and binding obligation of Parent and, to the Knowledge of Parent and assuming the accuracy of the representations and warranties
set forth in the Subscription Agreements, each PIPE Investor and neither the execution or delivery by any party thereto, nor the performance
of any party’s obligations under any such Subscription Agreement violates any Laws.
Article VI
COVENANTS OF THE PARTIES PENDING CLOSING
6.1 Conduct
of the Business. Each of the Company and Parent covenants and agrees that:
(a) Except
as expressly contemplated by this Agreement or the Additional Agreements or as set forth on Schedule 6.1(a), from the date hereof
until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms (the “Interim Period”),
each party shall (i) conduct its business only in the ordinary course (including the payment of accounts payable and the collection
of accounts receivable in the ordinary course of business), consistent with past practices, (ii) duly and timely file all material
Tax Returns required to be filed (or obtain a permitted extension with respect thereto) with the applicable Taxing Authorities and pay
any and all Taxes due and payable during such time period, (iii) duly observe and comply with all applicable Law and Orders, and
(iv) use its commercially reasonable efforts to preserve intact its business relationships with employees, clients, suppliers, contract
manufacturing organizations, contract research organizations and other third parties. Without limiting the generality of the foregoing,
and except as expressly contemplated by this Agreement or the Additional Agreements, or as required by applicable Law, from the date
hereof until the earlier of the Closing Date and the termination of this Agreement in accordance with its terms, without the other party’s
prior written consent (which shall not be unreasonably conditioned, withheld or delayed), neither the Company nor Parent shall, or permit
its Subsidiaries to:
(i) amend,
modify or supplement its certificate of incorporation, articles of incorporation or bylaws or other organizational or governing documents
except as contemplated hereby (other than, with respect to Parent, Parent’s amendment, modification or supplement in connection
with (A) any extension of the time requirement for Parent to consummate a Business Combination or (B) the removal of the net
tangigble asset requirement of $5,000,001 to consummate a Business Combination), or engage in any reorganization, reclassification, liquidation,
dissolution or similar transaction;
(ii) amend,
waive any provision of, terminate prior to its scheduled expiration date, or otherwise compromise in any way or relinquish any material
right under, any (A) in the case of the Company, Material Contract or (B) in the case of Parent, material contract, agreement,
lease, license or other right or asset of Parent other than in connection with the PIPE Investment or in connection with any extension
of the time requirement for Parent to consummate a Business Combination, as applicable;
(iii) other
than in the ordinary course of business consistent with past practice, modify, amend or enter into any contract, agreement, license or
commitment, including for capital expenditures, that extends for a term of one year or more or obligates the payment by the Company or
Parent, as applicable, of more than $500,000 (individually or in the aggregate);
(iv) modify,
amend or enter into any lease or charter agreement other than in the ordinary course of business and consistent with past practice;
(v) make
any capital expenditures in excess of $150,000 (individually or in the aggregate);
(vi) sell,
lease, license or otherwise dispose of any of the Company’s or Parent’s, as applicable, material assets, except pursuant
to existing contracts or commitments disclosed herein or in the ordinary course of business;
(vii) make
any material submission to any regulatory authority with respect to any regulatory authorization other than, with respect to Parent,
in connection with any extension of the time requirement for Parent to consummate a Business Combination;
(viii) solely
in the case of the Company, sell, lease, license or otherwise dispose of any Company Owned IP;
(ix) solely
in the case of the Company, permit any material Registered Owned IP to go abandoned or expire for failure to make an annuity or maintenance
fee payment, or file any necessary paper or action to maintain such rights;
(x) (A) pay,
declare or promise to pay any dividends, distributions or other amounts with respect to its capital stock or other equity securities;
(B) pay, declare or promise to pay any other amount to any stockholder or other equity holder in its capacity as such; and (C) except
as contemplated hereby or by any Additional Agreement, amend any term, right or obligation with respect to any outstanding shares of
its capital stock or other equity securities;
(xi) (A) make
any loan, advance or capital contribution to any Person; (B) incur any Indebtedness including drawings under the lines of credit,
if any, other than (1) loans evidenced by promissory notes made to Parent as working capital advances as described in the Prospectus
or in the connection with Parent’s or the Company’s payment of any portion of the Extension Fee and (2) intercompany
Indebtedness; or (C) repay or satisfy any Indebtedness, other than the repayment of Indebtedness in accordance with the terms thereof;
(xii) suffer
or incur any Lien, except for Permitted Liens, on the Company’s or Parent’s, as applicable, assets;
(xiii) delay,
accelerate or cancel, or waive any material right with respect to, any receivables or Indebtedness owed to the Company or Parent, as
applicable, or write off or make reserves against the same (other than, in the case of the Company, in the ordinary course of business);
(xiv) merge
or consolidate or enter a similar transaction with, or acquire all or substantially all of the assets or business of, any other Person;
make any material investment in any Person; or be acquired by any other Person;
(xv) terminate
or allow to lapse any insurance policy protecting any of the Company’s or Parent’s, as applicable, assets, unless simultaneously
with such termination or lapse, a replacement policy underwritten by an insurance company of nationally recognized standing having comparable
deductions and providing coverage equal to or greater than the coverage under the terminated or lapsed policy for substantially similar
premiums or less is in full force and effect;
(xvi) solely
in the case of the Company, adopt any severance, retention or other employee plan or fail to continue to make timely contributions to
each Plan in accordance with the terms thereof;
(xvii) institute,
settle or agree to settle any Action before any Authority, in each case in excess of $150,000 (exclusive of any amounts covered by insurance)
or that imposes injunctive or other non-monetary relief on such party;
(xviii) except
as required by U.S. GAAP, make any material change in its accounting principles, methods or practices or write down the value of its
assets;
(xix) change
its principal place of business or jurisdiction of organization;
(xx) issue,
redeem or repurchase any capital stock, membership interests or other securities, or issue any securities exchangeable for or convertible
into any shares of its capital stock or other securities, other than (A) any redemption by Parent of shares of Parent Common Stock
and Parent Units held by its public stockholders pursuant to Section 6.6, (B) any issuance of Parent Common Stock in
connection with the exercise of any option to purchase shares of Parent Common stock that are outstanding on the date hereof, (C) issuances
in connection with the terms of the Indebtedness permitted by Section 6.1(a)(xi)(B)(1) or Section 6.1(a)(xi)(C),
or (D) issuances or series of issuances of capital stock with an aggregate value of no more than $5,000,000;
(xxi) (A) make,
change or revoke any material Tax election; (B) change any material method of accounting; (C) settle or compromise any material
claim, notice, audit report or assessment in respect of Taxes of the Company; (D) enter into any Tax allocation, Tax sharing, Tax
indemnity or other closing agreement relating to any Taxes of the Company; or (E) surrender or forfeit any right to claim a Tax
refund;
(xxii) enter
into any transaction with or distribute or advance any material assets or property to any of its Affiliates, other than the payment of
salary and benefits in the ordinary course;
(xxiii) solely
in the case of the Company, other than as required by a Plan, (A) increase or change the compensation or benefits of any employee
or service provider of the Company, provided, however, that other than with respect to a member of senior management of the Company,
an officer of the Company or a member of the Board of Directors of the Company, the Company is permitted to make annual salary increases
in the ordinary course of business consistent with past practice of the Company, (B) accelerate the vesting or payment of any compensation
or benefits of any employee or service provider of the Company, (C) enter into, amend or terminate any Plan (or any plan, program,
agreement or arrangement that would be a Plan if in effect on the date hereof) or grant, amend or terminate any awards thereunder, (D) fund
any payments or benefits that are payable or to be provided under any Plan, (E) make any loan to any present or former employee
or other individual service provider of the Company, other than advancement of expenses in the ordinary course of business consistent
with past practices, or (F) enter into, amend or terminate any collective bargaining agreement or other agreement with a labor union
or labor organization;
(xxiv) fail
to duly observe and conform to any applicable Laws and Orders; or
(xxv) agree
or commit to do any of the foregoing.
(b) No
party shall (i) take or agree to take any action with the intent to cause any representation or warranty of such party to be inaccurate
or misleading in any respect at, or as of any time prior to, the Closing Date, or (ii) omit to take, or agree to omit to take, any
action with the intent to cause any such representation or warranty to be inaccurate or misleading in any respect at any such time.
(c) Notwithstanding
the foregoing, the Company and Parent and their respective Subsidiaries shall be permitted to take any and all actions required to comply
in all material respects with the quarantine, “shelter in place,” “stay at home,” workforce reduction, social
distancing, shut down, closure, sequester or any other Law, directive, guidelines or recommendations by any governmental authority (including
the Centers for Disease Control and Prevention and the World Health Organization) in each case in connection with, related to or in response
to COVID-19, including the CARES Act or any changes thereto consistent with their respective past practice.
(d) Notwithstanding
anything to the contrary herein including Section 6.1(a), nothing in this Agreement shall limit the amount of reasonable,
bona fide expenses the Company may spend to build out or expand, in furtherance of the Business, the real property subject to that certain
Use and Occupancy Agreement by and between the Company and Harry Reid International Airport in Las Vegas, Nevada, dated as of December 1,
2022.
6.2 Exclusivity.
(a) During
the Interim Period, neither the Company, on the one hand, nor Parent, on the other hand, shall, and such Persons shall cause each of
their respective Representatives not to, without the prior written consent of the other party (which consent may be withheld in the sole
and absolute discretion of the party asked to provide consent), directly or indirectly, (i) encourage, solicit, initiate, engage
or participate in negotiations with any Person concerning any Alternative Transaction, (ii) take any other action intended or designed
to facilitate the efforts of any Person relating to a possible Alternative Transaction or (iii) approve, recommend or enter into
any Alternative Transaction or any contract or agreement related to any Alternative Transaction. Immediately following the execution
of this Agreement, the Company, on the one hand, and Parent, on the other hand, shall, and shall cause each of their Representatives,
to terminate any existing discussion or negotiations with any Persons other than the Company or Parent, as applicable, concerning any
Alternative Transaction. Each of the Company and Parent shall be responsible for any acts or omissions of any of its respective Representatives
that, if they were the acts or omissions of the Company or Parent, as applicable, would be deemed a breach of such party’s obligations
hereunder (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the
Company or Parent, as applicable, may have against such Representatives with respect to any such acts or omissions). For purposes of
this Agreement, the term “Alternative Transaction” means any of the following transactions involving the Company or
Parent or their respective Subsidiaries (other than the transactions contemplated by this Agreement or the Additional Agreements): (A) any
merger, consolidation, share exchange, business combination or other similar transaction, (B) any sale, lease, exchange, transfer
or other disposition of all or a material portion of the assets of such Person or any capital stock or other equity interests of such
party or its Subsidiaries in a single transaction or series of transactions and (C) any purchase, lease, exchange, transfer or other
acquisition of (1) all or a material portion of the assets of any Person by the Company or Parent or their respective Subsidiaries
or (2) any capital stock or other equity interests of any Person by the Company or Parent or their respective Subsidiaries, in each
case, in a single transaction or series of transactions.
(b) In
the event that there is an unsolicited proposal for, or an indication of interest in entering into, an Alternative Transaction, communicated
in writing to the Company or Parent or any of their respective Representatives (each, an “Alternative Proposal”),
such party shall as promptly as practicable (and in any event within one (1) Business Day after receipt thereof) advise the other
parties to this Agreement, orally and in writing, of such Alternative Proposal and the material terms and conditions thereof (including
any changes thereto) and the identity of the Person making any such Alternative Proposal. The Company and Parent shall keep each other
informed on a reasonably current basis of material developments with respect to any such Alternative Proposal. As used herein with respect
to Parent, the term “Alternative Proposal” shall not include the receipt by Parent of any unsolicited communications (including
the receipt of draft non-disclosure agreements) in the ordinary course of business inquiring as to Parent’s interest in a potential
target for a business combination; provided, however, that Parent shall inform the person initiating such communication
of the existence of this Agreement and its obligations under this Section 6.2.
6.3 Access
to Information. During the Interim Period, the Company and Parent shall each use its commercially reasonable efforts to, (a) continue
to give the other party, its legal counsel and its other Representatives full access to the offices, properties and Books and Records
of the Company (including the Company continuing to provide Parent and its representatives access to the “data rooms” or
“virtual data rooms” used in connection with the negotiation of and entering into this Agreement), (b) furnish to the
other party, its legal counsel and its other Representatives such information relating to the business of the Company and Parent as such
Persons may reasonably request including additional diligence information requested by Parent which the Company shall input into the
“data rooms” or “virtual data rooms” used in connection with the negotiation of and entering into this Agreement
and (c) cause its employees, legal counsel, accountants and other Representatives to cooperate with the other party in its investigation
of the Business (in the case of the Company) or the business of Parent (in the case of Parent); provided, that no investigation
pursuant to this Section 6.3 (or any investigation made prior to the date hereof) shall affect any representation or warranty
given by the Company or Parent; and provided, further, that any investigation pursuant to this Section 6.3
shall be conducted in such manner as not to interfere unreasonably with the conduct of the Business of the Company, provided further
that, to the extent the furnishing of any information pursuant to this Section 6.3, if the furnishing of such information
would, in the opinion of legal counsel to such party, result in the loss of attorney-client privilege or other privilege from such disclosure,
in which case the parties will enter into a joint defense arrangement or similar agreement, in a form and substance reasonably satisfactory
to the parties, in order to allow such information to be disclosed without the loss of attorney-client privilege or other privilege with
respect to such information.
6.4 Notices
of Certain Events. During the Interim Period, each of Parent and the Company shall promptly notify the other party of:
(a) any
notice from any Person alleging or raising the possibility that the consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement or that the transactions contemplated by this Agreement might give rise to any Action or
other rights by or on behalf of such Person or result in the loss of any rights or privileges of the Company (or Parent Parties, post-Closing)
to any such Person or create any Lien on any of the Company’s or Parent’s assets;
(b) any
notice or other communication from any Authority in connection with the transactions contemplated by this Agreement or the Additional
Agreements;
(c) any
Actions commenced or, to the Knowledge of Parent or the Company, as applicable, threatened relating to or involving or otherwise affecting
either party or any of their stockholders or their equity, assets or business or that relate to the consummation of the transactions
contemplated by this Agreement or the Additional Agreements;
(d) the
occurrence of any fact or circumstance which constitutes or results, or would reasonably be expected to constitute or result in a Material
Adverse Effect; and
(e) any
inaccuracy of any representation or warranty of such party contained in this Agreement at any time during the term hereof, or any failure
of such party to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder, that would
reasonably be expected to cause any of the conditions set forth in Article IX not to be satisfied;
provided,
however, that no such notification or failure to provide such notification pursuant to clause (d) or clause (e) of this
Section 6.4 shall affect the representations, warranties, covenants, agreements or obligations of the parties (or remedies
with respect thereto) or the conditions to the obligations of the parties under this Agreement, and a failure to comply with clause (d) or
clause (e) of this Section 6.4 shall not, of itself, cause the condition stated in Section 9.2(a) or
Section 9.3(a), as the case may be, to fail to be satisfied.
6.5 Cooperation
with Form S-4/Proxy Statement; Other Filings.
(a) The
Company shall promptly provide to Parent such information concerning the Company and the Company Securityholders as is either required
by the federal securities Laws or reasonably requested by Parent for inclusion in the Offer Documents. Promptly after the receipt by
Parent from the Company of all such information, Parent shall prepare and file with the SEC, and with all other applicable regulatory
bodies, proxy materials for the purpose of soliciting proxies from holders of Parent Common Stock sufficient to obtain Parent Stockholder
Approval at a meeting of holders of Parent Common Stock to be called and held for such purpose (the “Parent Stockholder Meeting”).
Such proxy materials shall be in the form of a proxy statement (the “Proxy Statement”), which shall be included in
a Registration Statement on Form S-4 (the “Form S-4”) filed by Parent with the SEC, pursuant to which the
Parent Common Stock issuable in the Merger shall be registered. Parent shall promptly respond to any SEC comments on the Form S-4.
The Proxy Statement, the Form S-4 and the documents included or referred to therein, together with any supplements, amendments or
exhibits thereto, are referred to herein as the “Offer Documents”.
(b) Parent
(i) shall permit the Company and its counsel to review and comment on the Proxy Statement and Form S-4 and any exhibits, amendments
or supplements thereto (or other related documents) at a reasonable time prior to the filing except to the extent not legally permissible;
(ii) shall consider any such comments reasonably and in good faith; and (iii) shall not file the Proxy Statement and Form S-4
or any exhibit, amendment or supplement thereto without giving reasonable and good faith consideration to the comments of the Company.
As promptly as practicable after receipt thereof, Parent shall provide to the Company and its counsel notice and a copy of all correspondence
(or, to the extent such correspondence is oral, a summary thereof), including any comments from the SEC or its staff, between Parent
or any of its Representatives, on the one hand, and the SEC or its staff or other government officials, on the other hand, with respect
to the Proxy Statement and the Form S-4, and, in each case, shall consult reasonably and in good faith with the Company and its
counsel concerning any such correspondence. Parent shall not file any response letters to any comments from the SEC without consulting
reasonably and in good faith with the Company except to the extent not practicable or legally permissible. Parent will use its reasonable
efforts to permit the Company’s counsel to participate in any calls, meetings or other communications with the SEC or its staff.
Parent will advise the Company, promptly after it receives notice thereof, of the time when the Proxy Statement or the Form S-4
or any amendment or supplement thereto has been filed with the SEC and the time when the Form S-4 is declared effective or any stop
order relating to the Form S-4 is issued.
(c) As
soon as practicable following the date on which the Form S-4 is declared effective by the SEC (the “S-4 Effective Date”),
Parent shall distribute the Proxy Statement to the holders of Parent Common Stock and, pursuant thereto, shall call the Parent Stockholder
Meeting to be held on a date no later than forty-five (45) days after the S-4 Effective Date in accordance with its organizational documents
and the laws of the State of Delaware and, subject to the other provisions of this Agreement, solicit proxies from such holders to vote
in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby and the other matters presented to
the holders of Parent Common Stock for approval or adoption at the Parent Stockholder Meeting.
(d) Parent
and the Company shall comply with all applicable provisions of and rules under the Securities Act and Exchange Act and all applicable
Laws of the State of Delaware, the State of Nevada and Nasdaq, in the preparation, filing and distribution of the Form S-4 and the
Proxy Statement (or any amendment or supplement thereto), as applicable, the solicitation of proxies under the Proxy Statement and the
calling and holding of the Parent Stockholder Meeting. Without limiting the foregoing, Parent shall ensure that each of the Form S-4,
as of the S-4 Effective Date, and the Proxy Statement, as of the date on which it is first distributed to the holders of Parent Common
Stock, and as of the date of the Parent Stockholder Meeting, does not contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading
(provided, that Parent shall not be responsible for the accuracy or completeness of any information relating to the Company (or
any other information) that is furnished by the Company expressly for inclusion in the Proxy Statement). The Company represents and warrants
that the information relating to the Company supplied by the Company expressly for inclusion in the Proxy Statement or the Form S-4,
as applicable, will not as of the S-4 Effective Date and the date on which the Proxy Statement (or any amendment or supplement thereto)
is first distributed to the holders of Parent Common Stock or at the time of the Parent Stockholder Meeting does not contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements made in light of the circumstances
under which they were made, not misleading. If at any time prior to the Effective Time, a change in the information relating to the Company
or any other information furnished by Parent, Merger Sub or the Company for inclusion in the Proxy Statement, which would make the preceding
sentence incorrect, should be discovered by Parent, Merger Sub or the Company, as applicable, such party shall promptly notify the other
parties of such change or discovery 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 Parent’s stockholders. In connection therewith, Parent, Merger Sub
and the Company shall instruct their respective employees, counsel, financial advisors, auditors and other authorized representatives
to reasonably cooperate with Parent as relevant if required to achieve the foregoing.
(e) In
accordance with Parent’s amended and restated certificate of incorporation and applicable securities laws, rules and regulations,
including the DGCL and rules and regulations of Nasdaq, in the Proxy Statement, Parent shall seek from the holders of Parent
Common Stock the approval of the following proposals: (i) the Parent Stockholder Approval; (ii) adoption and approval of the
second amended and restated certificate of incorporation of Parent, in the form attached hereto as Exhibit K, including the
change of the name of Parent to “Set Jet, Inc.” (the “Amended Parent Charter”); (iii) adoption
and approval of the amended and restated bylaws of Parent in the form attached hereto as Exhibit L; (iv) approval of
the members of the Board of Directors of Parent immediately after the Closing; (v) approval of the issuance of more than 20% of
the issued and outstanding shares of Parent Common Stock to the Company Securityholders in connection with the Merger under applicable
exchange listing rules; (vi) approval to adjourn the Parent Stockholder Meeting, if necessary; and (vii) approval to obtain
any and all other approvals necessary or advisable to effect the consummation of the Merger as reasonably determined by the Company and
the Parent (the proposals set forth in the forgoing clauses (i) through (vi), inclusive, and (vii) collectively, the “Parent
Proposals”).
(f) Parent,
with the assistance of the Company, shall use its reasonable best efforts to cause the Form S-4 and the Proxy Statement to “clear”
comments from the SEC and the Form S-4 to become effective as promptly as reasonably practicable thereafter. As soon as practicable
after the Proxy Statement is “cleared” by the SEC, Parent shall cause the Proxy Statement, together will all other Offer
Documents, to be disseminated to holders of Parent Common Stock. The Offer Documents shall provide that, unless Parent is otherwise exempt
from the provisions of Rule 419 promulgated under the Securities Act of 1933, the public stockholders of Parent with the opportunity
to redeem all or a portion of their public shares of Parent Common Stock, up to that number of shares of Parent Common Stock that would
permit Parent to maintain consolidated net tangible assets of at least $5,000,001 either immediately prior to or upon the consummation
of the Merger, at a price per share equal to the pro rata share of the funds in the Trust Account, all in accordance with and as required
by Parent’s amended and restated certificate of incorporation, the Trust Agreement, applicable Law and any applicable rules and
regulations of the SEC. In accordance with Parent’s amended and restated certificate of incorporation, the proceeds held in the
Trust Account will first be used for the redemption of the shares of Parent Common Stock held by Parent’s public stockholders who
have elected to redeem such shares.
(g) Parent
shall call and hold the Parent Stockholder Meeting as promptly as practicable after the S-4 Effective Date for the purpose of seeking
the approval of each of the Parent Proposals, and Parent shall consult in good faith with the Company with respect to the date on which
such meeting is to be held. Parent shall use reasonable best efforts to solicit from its stockholders proxies in favor of the approval
and adoption of the Merger and this Agreement and the other Parent Proposals. Parent’s Board of Directors shall include the Parent
Board Recommendation in the Proxy Statement and shall recommend that the holders of Parent Common Stock vote in favor of the Parent Proposals
and neither Parent’s Board of Directors, nor any committee thereof, shall withhold, withdraw, amend, modify, change or propose
or resolve to withhold, withdraw, amend, modify or change, in each case in a manner adverse to the Company, the Parent Board Recommendation.
If on the date for which the Parent Stockholder Meeting is scheduled (including any postponed or adjourned date), Parent has not received
proxies representing a sufficient number of shares to obtain the Parent Stockholder Approval, whether or not a quorum is present, Parent
shall make one or more successive postponements or adjournments of the Parent Stockholder Meeting, each such postponement or adjournment
to be no more than ten (10) Business Days, and shall continue to use reasonable best efforts to solicit from its stockholders proxies
in favor of the approval and adoption of the Merger and this Agreement and the other Parent Proposals; provided that, without
the consent of the Company, Parent shall not postpone or adjourn the Parent Stockholder Meeting to a date later than the Outside Closing
Date.
(h) The
Company acknowledges that a substantial portion of the Proxy Statement/Form S-4 shall include disclosure regarding the Company and
its management, operations and financial condition. Accordingly, the Company agrees to as promptly as reasonably practical provide Parent
with such information as shall be requested by Parent for inclusion in or attachment to the Proxy Statement/Form S-4, and that such
information is accurate in all material respects and complies as to form in all material respects with the requirements of the Exchange
Act and the rules and regulations promulgated thereunder. The Company understands that such information shall be included in the
Proxy Statement/Form S-4 or responses to comments from the SEC or its staff in connection therewith. In connection with the preparation
and filing of the Form S-4 and any amendments thereto, the Company shall reasonably cooperate with the Parent and shall make their
directors, officers and appropriate senior employees reasonably available to Parent and its counsel in connection with the drafting of
such filings and mailings and responding in a timely manner to comments from the SEC.
(i) Notwithstanding
anything else to the contrary in this Agreement or any Additional Agreements, Parent may make any public filing with respect to the Merger
to the extent required by applicable Law, provided that prior to making any filing that includes information regarding the Company, Parent
shall provide a copy of the filing to the Company and permit the Company to make revisions to protect confidential or proprietary information
of the Company.
(j) Immediately
following the execution of this Agreement, the Parent shall file the appropriate documents necessary to change the Parent’s ticker
symbol from “RCAC” to “STJT.”
6.6 Trust
Account. Parent covenants that it shall cause the funds in the Trust Account to be disbursed in accordance with the Trust Agreement,
including for the payment of (a) all amounts payable to public holders of shares of Parent Common Stock (the “Parent Redemption
Amount”), (b) deferred underwriting commissions and the expenses of Parent and the Company to the third parties to which
they are owed, and (c) the remaining monies in the Trust Account to Parent or the Surviving Corporation after the Closing.
6.7 Obligations
of Merger Sub. Parent shall take all action necessary to cause Merger Sub to perform its obligations under this Agreement and to
consummate the transactions contemplated under this Agreement, upon the terms and subject to the conditions set forth in this Agreement.
No later than one (1) Business Day after the date hereof, Parent, as the sole stockholder of Merger Sub, shall take all necessary
action to adopt this Agreement and approve the Merger and consummation of the other transactions contemplated hereby and shall promptly
thereafter provide written evidence of such action to the Company.
6.8 EIP.
Prior to the Closing Date, Parent shall approve and, subject to the approval of Parent’s Common Stockholders as required under
the Parent’s Certificate of Incorporation, adopt, a management incentive equity plan to be effective subject to, and from and after,
the Closing in the form attached as Exhibit M.
6.9 Extension
of Time to Consummate the Merger.
(a) Promptly
following execution of this Agreement by the parties, Parent shall prepare (with the Company’s reasonable cooperation) and as soon
as practicable, file with the SEC (with a target filing date of July 15, 2023), a mutually acceptable proxy statement (such proxy
statement, together with any amendments or supplements thereto, the “Extension Proxy Statement”) to amend Parent’s
governing documents, on terms and conditions agreed by the parties, to extend the period of time Parent is afforded under its organizational
documents and the Prospectus to consummate a Business Combination for an additional amount of time as is reasonably determined by the
Company and Parent, each in good faith, to be necessary or advisable such that the Closing will occur prior to the date at which the
Parent must complete a Business Combination (the “Extension Proposal”). Parent shall cooperate and provide the Company
(and its counsel) with a reasonable opportunity to review and comment on the Extension Proxy Statement, and any amendment or supplement
thereto, and any responses to comments from the SEC or its staff or the provision of additional information in connection therewith,
prior to filing or delivery of the same with or to the SEC. Parent shall consider the comments of the Company in good faith. Parent,
with the assistance of the Company, will promptly respond to any SEC comments on the Extension Proxy Statement and will use all commercially
reasonable efforts to cause the Extension Proxy Statement to be cleared by the SEC as promptly as practicable after such filing. Parent
will advise the Company promptly after: (i) the time when the Extension Proxy Statement has been filed; (ii) in the event
the Extension Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange
Act; (iii) in the event the preliminary Extension Proxy Statement is reviewed by the SEC, receipt of oral or written notification
of the completion of the review by the SEC; (iv) the filing of any supplement or amendment to the Extension Proxy Statement;
(v) any request by the SEC for amendment of the Extension Proxy Statement; (vi) any comments from the SEC relating to
the Extension Proxy Statement and responses thereto (and shall provide the Company with a copy or, in the case of oral communications,
summary of such comments); (vii) requests by the SEC for additional information (and shall provide the Company with a copy
or, in the case of oral communications, summary of such request); and (viii) any other communication, whether written or oral,
from the SEC (and shall provide the Company with a copy or, in the case of oral communications, summary of such communication).
(b) Parent
shall use its reasonable efforts to cause the Extension Proxy Statement, when filed with the SEC, to comply in all material respects
with the rules and regulations promulgated by the SEC, and to respond to any comments or other communications, whether written or
oral, that Parent or its counsel may receive from time to time from the SEC or its staff with respect to the Extension Proxy Statement.
Parent and the Company shall discuss in good faith and agree upon any action that Parent will undertake to obtain the shareholders of
Parent’s approval for the Extension Proposal.
(c) Each
party shall promptly correct any information provided by it for use in the Extension Proxy Statement if and to the extent that such information
is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws.
(d) Parent,
acting through its board of directors, shall include in the Extension Proxy Statement the recommendation of its board of directors that
the shareholders of Parent vote in favor of the Extension Proposal, and shall otherwise use reasonable best efforts to obtain approval
thereof. Neither the Parent’s Board of Directors nor any committee or agent or representative thereof shall withdraw (or modify
in a manner adverse to the Company) or propose to withdraw (or modify in a manner adverse to the Company) the Parent Board Recommendation
that the shareholders of Parent vote in favor of the adoption of the Extension Proposal.
(e) If
the Extension Proposal is approved and Parent elects to pay or deposit an additional amount or amounts into the Trust Account (such amount,
the “Extension Fee”), (i) Parent shall deliver an extension letter to the Trustee, notifying the Trustee of the
approval of such Extension Proposal, signed on behalf of Parent by an executive officer of Parent, and (ii) Parent shall deliver
the aggregate amount necessary by wire transfer of immediately available funds to the Trustee, for deposit in the Trust Account in accordance
with the extension letter and the Trust Agreement. The Extension Fee, and all costs and expenses with respect thereto, shall be paid
pursuant to Section 11.2(b).
Article VII
COVENANTS
7.1 Reporting;
Compliance with Laws; No Insider Trading. During the Interim Period,
(a) The
Company shall duly and timely file all Tax Returns required to be filed with the applicable Taxing Authorities and pay any and all Taxes
due and payable during such time period.
(b) The
Company shall duly observe and conform in all material respects to all applicable Law, including the Exchange Act, and Orders.
(c) The
Company shall not, and it shall direct its Representatives to not, directly or indirectly, (i) purchase or sell (including entering
into any hedge transaction with respect to) any Parent Common Stock, Parent Unit or Parent Warrant, except in compliance with all applicable
securities Laws, including Regulation M under the Exchange Act; (ii) use or disclose or permit any other Person to use or disclose
any information that Parent or its Affiliates has made or makes available to the Company and its Representatives in violation of the
Exchange Act, the Securities Act or any other applicable securities Law; or (iii) disclose to any third party any non-public information
about the Company, Parent, the Merger or the other transactions contemplated hereby or by any Additional Agreement.
(d) The
Company shall duly file all notices or other filings required under all applicable securities Laws, including Section 25102(o) of
the California Corporations Code, in respect of the Company Options and Company Restricted Stock Units.
7.2 Commercially
Reasonable Efforts to Obtain Consents and Agreements. The Company shall use its commercially reasonable efforts to obtain and deliver
to Parent, as promptly as practicable after the date hereof, each Company Consent contemplated by Schedule 4.8.
7.3 Company
Stockholders Approval.
(a) Promptly
following execution of this Agreement, the Company shall prepare a consent solicitation statement (in form and substance reasonably satisfactory
to Parent) and solicit the Company Stockholder Approvals through a written consent (the “Company Stockholder Written Consent”).
Within thirty (30) days after the date of this Agreement, the Company shall obtain and deliver to Parent a true, complete and correct
copy of the Company Stockholder Written Consent evidencing that the Company Stockholder Approvals have been obtained.
(b) The
Company’s Board of Directors shall recommend that the Company Stockholders vote in favor of this Agreement, the Additional Agreements
to which the Company is or will be a party, the transactions contemplated hereby and thereby and other related matters, and neither the
Company’s Board of Directors, nor any committee thereof, shall withhold, withdraw, amend, modify, change or propose or resolve
to withhold, withdraw, amend, modify or change, in each case in a manner adverse to Parent, the recommendation of the Company’s
Board of Directors.
7.4 Additional
Financial Information. From the date hereof through the Closing Date, Company shall deliver to Parent the Company’s unaudited
consolidated interim financial information reviewed by the Company’s auditor for each quarterly period no later than forty (40)
calendar days following the end of each quarterly period and consolidated interim monthly information for each month thereafter shall
be delivered to Parent no later than fifteen (15) days following the end of each month (the “Required Financial Statements”).
All of the financial statements to be delivered pursuant to this Section 7.4, shall be prepared under U.S. GAAP in accordance
with requirements of the Public Company Accounting Oversight Board for public companies. The Required Financial Statements shall be accompanied
by a certificate of the Chief Executive Officer of the Company to the effect that all such financial statements fairly present the financial
position and results of operations of the Company as of the date or for the periods indicated, in accordance with U.S. GAAP, except as
otherwise indicated in such statements and subject to year-end audit adjustments. The Company will promptly provide additional Company
financial information (including information required to prepare a Management Discussion and Analysis) reasonably requested by Parent
for inclusion in the Proxy Statement/Form S-4 and any other filings to be made by Parent with the SEC.
7.5 280G
Approval. To the extent that any “disqualified individual” (within the meaning of Section 280G(c) of the Code
and the regulations thereunder) has the right to receive any payments or benefits that could be deemed to constitute “parachute
payments” (within the meaning of Section 280G(b)(2)(A) of the Code and the regulations thereunder), the Company will:
(a) no later than ten (10) days prior to the Closing Date, use commercially reasonable efforts to solicit and obtain from
each such “disqualified individual” a waiver of such disqualified individual’s rights to some or all of such payments
or benefits (the “Waived 280G Benefits”) so that any remaining payments and/or benefits shall not be deemed to be
“excess parachute payments” (within the meaning of Section 280G of the Code and the regulations thereunder); and (b) no
later than three (3) days prior to the Closing Date, with respect to each individual who agrees to the waiver described in clause
(a) above, submit to a vote of holders of the equity interests of the Company entitled to vote on such matters, in the manner required
under Section 280G(b)(5) of the Code and the regulations promulgated thereunder, along with adequate disclosure intended to
satisfy such requirements (including Q&A 7 of Section 1.280G-1 of such regulations), the right of any such “disqualified
individual” to receive the Waived 280G Benefits. Prior to, and in no event later than four (4) days prior to soliciting such
waivers and approval, the Company shall provide drafts of such waivers and approval materials to Parent for its reasonable review and
comment, and the Company shall consider in good faith any changes reasonably requested by Parent. No later than seven (7) days prior
to soliciting the waivers, the Company shall provide Parent with the calculations and related documentation to determine whether and
to what extent the vote described in this Section 7.5 is necessary in order to avoid the imposition of Taxes under Section 4999
of the Code. Prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the stockholders of the Company was
solicited in accordance with the foregoing and whether the requisite number of votes of the stockholders of the Company was obtained
with respect to the Waived 280G Benefits or that the vote did not pass and the Waived 280G Benefits will not be paid or retained.
7.6 Amended
Parent Charter. Prior to the Effective Time, subject to the Parent Stockholder Approval, Parent shall amend and restate its certificate
of incorporation to be in the form of the Amended Parent Charter by filing the Amended Parent Charter with the Delaware Secretary of
State.
7.7 Subscription
Agreements. Without the prior written consent of the Company, Parent shall not cause the Subscription Agreements to be (a) amended
or modified in a manner that would be reasonably likely to be materially adverse to Parent and the Company, (b) withdrawn or (c) terminated.
7.8 Retirement
of Parent Shares. Certain initial shareholders of Parent Class B Common Stock shall forfeit, and Parent shall retire, an aggregate
of 100,000 shares of Parent Common Stock on, prior to or promptly after the Closing Date.
7.9 Additional
Agreements.
(a) Within
thirty (30) days the date of this Agreement, the Company shall use commercially reasonable efforts to obtain and deliver to Parent duly
and irrevocably executed Lock-Up Agreements, Company Support Agreements, and Voting Agreements from, in each case, from the holders of
an aggregate number of shares of the issued and outstanding common stock of the Company that, when added to the number of shares of the
issued and outstanding common stock of the Company held by Persons duly and irrevocably executing and delivering to Parent such respective
agreements on or prior to the date hereof, equals at least fifty percent (50%) of all of the issued and outstanding common stock of the
Company.
(b) On
or prior to the Closing Date, the Company shall deliver to Parent each Additional Agreement (other than the Lock-Up Agreements, the Company
Support Agreements, and the Voting Agreements and including each Additional Agreement which do not, by its terms, become effective until
the Effective Time but, for the avoidance of doubt, are addressed in Section 7.9(a) above) to which the Company, a Company
Securityholder, or any other Person (other than Parent or Sponsor), as applicable, is a party, duly executed by the Company, such Company
Securityholder(s), or such other Person(s), as applicable.
(c) Within
thirty (30) days of this Agreement, the Parent shall use commercially reasonable efforts to obtain and deliver to the Company duly and
irrevocably executed Parent Support Agreements and Voting Agreements from, in each case, from the holders of an aggregate number of shares
of the issued and outstanding Parent Common Stock in an amount set forth on Schedule 9.3(p).
7.10 Pre-PIPE
and PIPE Agreements.
(a) The
Company shall comply in all material respects with its obligations under the Pre-PIPE Convertible Note.
(b) Parent
shall comply in all material respects with the provisions of the Subscription Agreement set forth on Schedule 9.3(l) with
respect to the issuance of warrants and granting of registration rights.
Article VIII
COVENANTS OF ALL PARTIES HERETO
8.1 Commercially
Reasonable Efforts; Further Assurances; Governmental Consents.
(a) Subject
to the terms and conditions of this Agreement, each party shall use its reasonable best efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary or desirable under applicable Laws, or as reasonably requested by the other parties,
to consummate and implement expeditiously each of the transactions contemplated by this Agreement, including using its reasonable best
efforts to (i) obtain all necessary actions, nonactions, waivers, consents, approvals and other authorizations from all applicable
Authorities prior to the Effective Time; (ii) avoid an Action by any Authority, (iii) execute and deliver any additional instruments
necessary to consummate the transactions contemplated by this Agreement and (iv) otherwise cause the timely satisfaction of the
conditions to consummate the transactions contemplated by this Agreement stated in Article IX to the extent such conditions
are based upon or contemplate an action or delivery by such party. The parties shall execute and deliver such other documents, certificates,
agreements and other writings and take such other actions as may be necessary or desirable in order to consummate or implement expeditiously
each of the transactions contemplated by this Agreement.
(b) Subject
to applicable Law, each of the Company and Parent agrees to (i) reasonably cooperate and consult with the other regarding obtaining
and making all notifications and filings with Authorities, (ii) furnish to the other such information and assistance as the other
may reasonably request in connection with its preparation of any notifications or filings, (iii) keep the other reasonably apprised
of the status of matters relating to the completion of the transactions contemplated by this Agreement, including promptly furnishing
the other with copies of notices and other communications received by such party from, or given by such party to, any third party or
any Authority with respect to such transactions, (iv) permit the other party to review and incorporate the other party’s reasonable
comments in any communication to be given by it to any Authority with respect to any filings required to be made with, or action or nonactions,
waivers, expirations or terminations of waiting periods, clearances, consents or orders required to be obtained from, such Authority
in connection with execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and
(v) to the extent reasonably practicable, consult with the other in advance of and not participate in any meeting or discussion
relating to the transactions contemplated by this Agreement, either in person or by telephone, with any Authority in connection with
the proposed transactions unless it gives the other party the opportunity to attend and observe; provided, however,
that, in each of clauses (iii) and (iv) above, that materials may be redacted (A) to remove references concerning the
valuation of such party and its Affiliates, (B) as necessary to comply with contractual arrangements or applicable Laws, and (C) as
necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(c) During
the Interim Period, Parent, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after
learning of any stockholder demands or other stockholder Action (including derivative claims) relating to this Agreement, any of the
Additional Agreements or any matters relating thereto commenced against Parent, any of the Parent Parties or any of its or their respective
Representatives in their capacity as a representative of a Parent Party or against the Company (collectively, the “Transaction
Litigation”). The Parent shall control the negotiation, defense and settlement of any such Transaction Litigation brought against
the Parent, the Merger Sub or members of the boards of directors of the Parent or Merger Sub and the Company shall control the negotiation,
defense and settlement of any such Transaction Litigation brought against the Company or its board of directors; provided,
however, that in no event shall the Company or the Parent settle, compromise or come to any arrangement with respect to any
Transaction Litigation, or agree to do the same, without the prior written consent of the other party (not to be unreasonably withheld,
conditioned or delayed); provided, that it shall be deemed to be reasonable for Parent (if the Company is controlling the Transaction
Litigation) or the Company (if the Parent is controlling the Transaction Litigation) to withhold, condition or delay its consent if any
such settlement or compromise (A) does not provide for a legally binding, full, unconditional and irrevocable release of each Parent
Party (if the Company is controlling the Transaction Litigation) or the Company and its Subsidiaries and related parties (if the Parent
is controlling the Transaction Litigation) and its respective Representative that is the subject of such Transaction Litigation, (B) provides
for any non-monetary, injunctive, equitable or similar relief against any Parent Party (if the Company is controlling the Transaction
Litigation) or the Company and its Subsidiaries and related parties (if the Parent is controlling the Transaction Litigation) or (C) contains
an admission of wrongdoing or Liability by a Parent Party (if the Company is controlling the Transaction Litigation) or the Company and
its Subsidiaries and related parties (if the Parent is controlling the Transaction Litigation) and its respective Representative that
is the subject of such Transaction Litigation. Parent and the Company shall each (i) keep the other reasonably informed regarding
any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement
and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement
and compromise of any such Transaction Litigation, (iii) consider in good faith the other’s advice with respect to any such
Transaction Litigation and (iv) reasonably cooperate with each other.
8.2 Confidential
Nature of Information. Except as necessary to complete the SEC Statement, the other Offer Documents or any Other Filings, the Company,
on the one hand, and Parent and Merger Sub, on the other hand, shall comply with the Confidentiality Agreement.
8.3 Directors’
and Officers’ Indemnification and Liability Insurance.
(a) All
rights to indemnification for acts or omissions occurring through the Closing Date now existing in favor of the current directors and
officers of the Company or its Subsidiaries or the Parent Parties and Persons who served as a director, officer, member, trustee or fiduciary
of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise at the request of the
Company or its Subsidiaries or the Parent Parties, as provided in their respective organizational documents or in any indemnification
agreements shall survive the Merger and shall continue in full force and effect in accordance with their terms. For a period of 6 years
after the Effective Time, Parent shall cause the organizational documents of Parent and the Surviving Corporation and their respective
Subsidiaries to contain provisions with respect to exculpation and indemnification of and advancement of expenses that are no less favorable
to the Persons entitled to the benefit thereof than are set forth as of the date of this Agreement in the organizational documents of,
with respect to Parent, Parent, and with respect to the Surviving Corporation and its Subsidiaries, the Company and its Subsidiaries,
as applicable, to the extent permitted by applicable Law.
(b) Prior
to the Closing, Parent and the Company shall reasonably cooperate in order to obtain directors’ and officers’ liability insurance
for Parent and the Company that shall be effective as of Closing and will cover those Persons who will be the directors and officers
of Parent and its Subsidiaries (including the Surviving Corporation after the Effective Time) at and after the Closing on terms determined
by Parent in its discretion (which shall be no less favorable to the Persons insured thereunder than those contained in the current policies
of directors’ and officers’ liability insurance maintained by Parent).
(c) At
or prior to the Effective Time, the Company shall obtain and fully pay the premium for a six-year prepaid “tail” policy for
the extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’
liability insurance policies, for claims reporting or discovery period of six years from and after the Effective Time, on commercially
reasonable and customary terms and conditions providing for coverage retentions, limits and other material terms (other than premiums
payable) not less favorable to the Persons insured thereunder than such terms and conditions of the current policies of directors’
and officers’ liability insurance maintained by the Company with respect to matters arising on or before the Effective Time, covering
without limitation the transactions contemplated hereby.
(d) At
or prior to the Effective Time, Parent shall obtain (i) a six-year prepaid “tail” policy for the extension of the directors’
and officers’ liability coverage of Parent’s existing directors’ and officers’ liability insurance policies,
for claims reporting or discovery period of six years from and after the Effective Time, and/or (ii) such other or additional directors’
and officers’ liability insurance with respect to the directors and officers of Parent as of date hereof, in each case, on commercially
reasonable and customary terms and conditions providing for coverage, retentions, limits and other material terms not less favorable
to the Persons insured thereunder than such terms and conditions of the current policies of directors’ and officers’ liability
insurance maintained by Parent and satisfactory to Parent’s directors and officers as of the date hereof, and in each case covering
without limitation the transactions contemplated hereby.
(e) The
provisions of this Section 8.3 are intended to be for the benefit of, and shall be enforceable by, each Person who will have
been a director or officer of the Company or Parent for all periods ending on or before the Closing Date and may not be changed with
respect to any officer or director without his or her written consent.
8.4 Parent
Public Filings; Nasdaq. During the Interim Period, Parent will keep current and timely file all of its public filings with the SEC
and otherwise comply in all material respects with applicable securities Laws, and shall use its reasonable best efforts prior to the
Closing to maintain the listing of the Parent Units and the Parent Warrants on Nasdaq. During the Interim Period, Parent shall use its
reasonable best efforts to cause (a) Parent’s initial listing application with Nasdaq in connection with the transactions
contemplated by this Agreement to have been approved; (b) all applicable initial and continuing listing requirements of Nasdaq to
be satisfied; and (c) the Parent Common Stock, including the Merger Consideration Shares and the Parent Warrants to be approved
for listing on Nasdaq, subject to official notice of issuance, in each case, as promptly as reasonably practicable after the date of
this Agreement and in any event prior to the Effective Time.
8.5 Certain
Tax Matters.
(a) Each
of Parent and the Company shall use its reasonable best efforts to cause the Merger to qualify as a tax-deferred “reorganization”
within the meaning of Section 368(a) of the Code. Neither Parent nor the Company shall take any action, or fail to take any
action, that could reasonably be expected to cause the Merger to fail to qualify as a “reorganization” within the meaning
of Section 368(a) of the Code. Parent and the Company shall report, except to the extent otherwise required by a change in
Law, for U.S. federal income tax purposes, the Merger as a “reorganization” within the meaning of Section 368(a) of
the Code unless otherwise required to do so pursuant to a “determination” within the meaning of Section 1313(a) of
the Code.
(b) If,
in connection with the preparation and filing of the Proxy Statement / Form S-4, the SEC requires that tax opinions be prepared
and submitted in such connection, Parent and the Company shall deliver to Loeb & Loeb LLP and Snell & Wilmer L.L.P.,
respectively, customary Tax representation letters satisfactory to its counsel, dated and executed as of the date the Proxy Statement
/ Form S-4 is declared effective by the SEC and such other date(s) as determined reasonably necessary by such counsel in connection
with the preparation and filing of the Proxy Statement / Form S-4, and, if required, Snell & Wilmer L.L.P. shall furnish
an opinion, subject to customary assumptions and limitations, to the effect that the Merger should qualify as a “reorganization”
within the meaning of Section 368(a) of the Code. Notwithstanding anything to the contrary in this Agreement, Loeb &
Loeb LLP shall not be required to provide any opinion to any party regarding the Merger.
(c) Each
of the parties shall (and shall cause their respective Affiliates to) cooperate fully, as and to the extent reasonably requested by another
party, in connection with the filing of relevant Tax Returns, and any Tax proceeding, audit or examination. Such cooperation shall include
the retention and (upon the other party’s request) the provision (with the right to make copies) of records and information reasonably
relevant to any tax proceeding, audit or examination, making employees available on a mutually convenient basis to provide additional
information and explanation of any material provided hereunder.
Article IX
CONDITIONS TO CLOSING
9.1 Condition
to the Obligations of the Parties. The obligations of all of the parties to consummate the transactions contemplated by this Agreement
are subject to the satisfaction or written waiver (where permissible) by Parent and the Company of all the following conditions:
(a) No
Authority shall have enacted, issued, promulgated, enforced or entered any Law or Order which is then in effect that makes the transactions
contemplated by this Agreement illegal or otherwise prohibits consummation of such transactions.
(b) each
consent, approval or authorization of any Authority required of Parent, the Company or any of their respective Subsidiaries to consummate
the Merger set out on Schedule 9.1(b) shall have been obtained and shall be in full force and effect.
(c) There
shall not be any Action commenced or asserted in writing (and not orally) by any Authority to enjoin or otherwise materially restrict
the consummation of the Closing.
(d) Parent
(i) after giving effect to any redemption of shares of Parent Common Stock in connection with the transactions contemplated by this
Agreement shall have net tangible assets of at least $5,000,001 upon consummation of the Merger or (ii) shall
be otherwise exempt from the provisions of Rule 419 promulgated under the Securities Act of 1933.
(e) The
Company Stockholder Approvals shall have been obtained.
(f) Each
of the Parent Proposals shall have been approved at the Parent Stockholder Meeting or at any adjournment or postponement thereof.
(g) Parent’s
initial listing application with Nasdaq in connection with the transactions contemplated by this Agreement shall have been conditionally
approved and, immediately following the Effective Time, Parent shall satisfy any applicable initial and continuing listing requirements
of Nasdaq, and Parent shall not have received any notice of non-compliance therewith, and the Merger Consideration Shares shall have
been approved for listing on Nasdaq.
(h) The
Form S-4 shall have become effective in accordance with the provisions of the Securities Act, no stop order suspending the effectiveness
of the Form S-4 shall have been issued by the SEC that remains in effect and no proceeding seeking such a stop order shall have
been initiated by the SEC and not withdrawn.
9.2 Conditions
to Obligations of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the transactions contemplated by this
Agreement is subject to the satisfaction, or the waiver in Parent’s sole and absolute discretion, of all the following further
conditions:
(a) The
Company shall have duly performed or complied with, in all material respects, all of its covenants, agreements and obligations hereunder
required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained therein) by the Company
at or prior to the Closing Date.
(b) The
representations and warranties of the Company contained in this Agreement (disregarding all qualifications contained therein relating
to materiality or Material Adverse Effect), other than the Company Fundamental Representations, shall be true and correct as of the date
of this Agreement and as of the Closing Date, as if made at and as of such date (except to the extent that any such representation and
warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct at and as of such earlier
date), other than as has not had, or would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect
in respect of the Company.
(c) The
Company Fundamental Representations (disregarding all qualifications and exceptions contained therein relating to materiality or Material
Adverse Effect) shall be true and correct in all respects at and as of the date of this Agreement and as of the Closing Date, as if made
as of such date (except to the extent that any such representation and warranty is expressly made as of a specific date, in which case
such representation and warranty shall be true and correct at and as of such specific date), other than de minimis inaccuracies.
(d) Since
the date of this Agreement, there shall not have occurred any Effect in respect of the Company, that individually, or together with any
other Effect, has had or would reasonably be expected to have a Material Adverse Effect in respect of the Company.
(e) Parent
shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of the Company, in such Person’s
capacity as an officer of the Company and not in such Person’s individual capacity, certifying the accuracy of the provisions of
the foregoing clauses (a), (b), (c) and (d) of this Section 9.2.
(f) Parent
shall have received a certificate, dated as of the Closing Date, signed by the Secretary of the Company attaching true, correct and complete
copies of (i) the Company Articles of Incorporation, certified as of a recent date by the Secretary of State of the State of Nevada;
(ii) the Company’s Bylaws; (iii) copies of resolutions duly adopted by the Board of Directors of the Company authorizing
this Agreement, the Additional Agreements to which the Company is a party and the transactions contemplated hereby and thereby and the
Company Stockholder Written Consent; and (iv) a certificate of good standing of the Company, certified as of a recent date by the
Secretary of State of the State of Nevada.
(g) Each
of the Company, the Company Securityholders and each other Person (other than Parent and the Sponsor), as applicable, shall have duly
and irrevocably executed and delivered to Parent a copy of each Additional Agreement to which the Company, such Company Securityholders,
or such other Person as applicable, is a party, including the Company Support Agreements, Lock-Up Agreements and the Voting Agreements
to which such Persons are a Party.
(h) The
Company shall have delivered to Parent a duly executed certificate conforming to the requirements of Treasury Regulations Sections 1.897-2(h)(1)(i) and
1.1445-2(c)(3)(i) and a notice to be delivered to the United States Internal Revenue Service as required under Treasury Regulations
Section 1.897-2(h)(2), each dated no more than thirty (30) days prior to the Closing Date and in form and substance reasonable acceptable
to Parent.
(i) Not
more than five percent (5%) of the issued and outstanding shares of Company Common Stock shall constitute Dissenting Shares.
(j) The
Company shall have obtained and delivered to Parent each Company Consent set forth on Schedule 4.8.
(k) The
Company shall have delivered to Parent a resignation from the Company of each director of the Company listed in Schedule 9.2(k),
effective as of the Closing Date.
(l) The
Company shall have timely delivered to Parent, in accordance with Section 7.4, the financial statements required to be included
in the Parent SEC Documents.
(m) The
cumulative Debt for Borrowed Money of the Company shall be less than or equal to $14,970,000.
(n) The
Company shall have obtained and delivered to Parent the written approval of the Merger by the holders of a majority of the issued and
outstanding common stock of the Company not held by directors or officers of the Company.
(o) The
Company shall have obtained and delivered to Parent duly and irrevocably executed Lock-Up Agreements, Company Support Agreements, and
Voting Agreements from, in each case, the holders of an aggregate number of shares of the issued and outstanding common stock of the
Company that, when added to the number of shares of the issued and outstanding common stock of the Company held by Persons duly and irrevocably
executing and delivering to Parent such respective agreements on or prior to the date hereof, equals at least fifty percent (50%) of
all of the issued and outstanding common stock of the Company.
(p) The
Company shall have complied in all material respects with its obligations under the Pre-PIPE Convertible Note.
9.3 Conditions
to Obligations of the Company. The obligations of the Company to consummate the transactions contemplated by this Agreement is subject
to the satisfaction, or the waiver in the Company’s sole and absolute discretion, of all of the following further conditions:
(a) Parent
and Merger Sub shall each have duly performed or complied with, in all material respects, all of its respective covenants, agreements
and obligations hereunder required to be performed or complied with (without giving effect to any materiality or similar qualifiers contained
therein) by Parent or Merger Sub, as applicable, at or prior to the Closing Date.
(b) The
representations and warranties of Parent and Merger Sub contained in this Agreement (disregarding all qualifications contained therein
relating to materiality or Material Adverse Effect), other than the Parent Fundamental Representations, shall be true and correct as
of the date of this Agreement and as of the Closing Date, as if made at and as of such date (except to the extent that any such representation
and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct at and as of such
earlier date), other than as has not had, or would not be reasonably expected to have, individually or in the aggregate, a Material Adverse
Effect in respect of the Parent Parties.
(c) The
Parent Fundamental Representations (disregarding all qualifications and exceptions contained therein relating to materiality or Material
Adverse Effect) shall be true and correct in all respects at and as of the date of this Agreement and as of the Closing Date, as if made
as of such date (except to the extent that any such representation and warranty is expressly made as of a specific date, in which case
such representation and warranty shall be true and correct at and as of such specific date), other than de minimis inaccuracies.
(d) Since
the date of this Agreement, there shall not have occurred any Effect in respect of Parent that individually, or together with any other
Effect, has had or would reasonably be expected to have a Material Adverse Effect in respect of Parent.
(e) The
Company shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer of Parent, certifying
the accuracy of the provisions of the foregoing clauses (a), (b), (c) and (d) of this Section 9.3.
(f) The
Amended Parent Charter, in the form attached hereto as Exhibit K, shall have been filed with, and declared effective by,
the Delaware Secretary of State.
(g) The
Company shall have received a certificate, dated as of the Closing Date, signed by the Secretary of Parent attaching true, correct and
complete copies of (i) the amended and restated certificate of incorporation of Parent, certified as of a recent date by the Secretary
of State of the State of Delaware; (ii) bylaws of Parent, (iii) copies of resolutions duly adopted by the Board of Directors
of Parent authorizing this Agreement, the Additional Agreements to which Parent is a party and the transactions contemplated hereby and
thereby and the Parent Proposals; and (iv) a certificate of good standing of Parent, certified as of a recent date by the Secretary
of State of the State of Delaware.
(h) The
Company shall have received a certificate, dated as of the Closing Date, signed by the Secretary of Merger Sub attaching true, correct
and complete copies of (i) copies of resolutions duly adopted by the Board of Directors and sole stockholder of Merger Sub authorizing
this Agreement, the Additional Agreements to which Merger Sub is a party and the transactions contemplated hereby and thereby and (ii) a
certificate of good standing of Merger Sub, certified as of a recent date by the Secretary of State of the State of Delaware.
(i) Each
of Parent, Sponsor or other stockholder of Parent, as applicable, shall have executed and delivered to the Company a copy of each Additional
Agreement to which Parent, Sponsor or such other stockholder of Parent, as applicable, is a party.
(j) The
size and composition of the post-Closing Parent Board of Directors shall have been constituted in accordance with Section 2.8.
(k) The
directors and officers of Parent whose names are set forth on Schedule 9.3(k) shall have executed written resignations effective
as of the Effective Time.
(l) Parent
shall have complied in all material respects with the provisions of the Subscription Agreement set forth on Schedule 9.3(l) with
respect to the issuance of warrants and granting of registration rights.
(m) The
Subscriber under the Subscription Agreement set forth on Schedule 9.3(l) shall have complied in all material respects with
its subscription obligation pursuant to the terms thereof.
(n) The
Parent shall have obtained and delivered to the Company duly and irrevocably executed Parent Support Agreements and Voting Agreements
from, in each case, the holders of an aggregate number of shares of the issued and outstanding Parent Common Stock in an amount set forth
on Schedule 9.3(n).
Article X
TERMINATION
10.1 Termination
Without Default.
(a) In
the event that the Closing of the transactions contemplated hereunder has not occurred by December 21, 2023 (the “Outside
Closing Date”), then Parent and the Company shall each have the right, in its sole discretion, to terminate this Agreement;
provided that the material breach of any representation, warranty, covenant or obligation under this Agreement by the party (i.e., Parent
or the Merger Sub, on one hand, or the Company, on the other hand) seeking to terminate this Agreement pursuant to this Section 10.1(a) was
not the cause of, or did not result in, the failure of the Closing to occur on or before the Outside Closing Date. Such right may be
exercised by Parent or the Company, as the case may be, giving written notice to the other at any time after the Outside Closing Date
but not after the Closing has occurred.
(b) In
the event an Authority shall have issued an Order, enacted a Law or commenced or asserted in writing (and not orally) an Action, having
the effect of permanently restraining, enjoining or otherwise prohibiting the Merger or the Closing, or materially restricting the consummation
of the Merger or the Closing, which Order, Law or Action is final and non-appealable, Parent or the Company shall each have the right,
in its sole discretion, to terminate this Agreement without liability to the other party.
(c) Parent
and the Company shall each have the right, in its sole discretion, to terminate this Agreement if, at the Parent Stockholder Meeting
(including any postponements or adjournments thereof), the Parent Proposals shall fail to be approved by the affirmative vote of Parent
stockholders required under Parent’s organizational documents and applicable Law.
(d) This
Agreement may be terminated at any time by mutual written consent of the Company and Parent duly authorized by each of their respective
boards of directors.
10.2 Termination
Upon Default.
(a) Parent
may terminate this Agreement by giving notice to the Company, without prejudice to any rights or obligations Parent or Merger Sub may
have: (i) at any time prior to the Closing Date if (w) (1) the Company shall have breached any representation, warranty,
agreement or covenant contained herein to be performed on or prior to the Closing Date, which has rendered unsatisfied or would reasonably
be expected to render unsatisfied any of the conditions set forth in Sections 9.2(a), 9.2(b), 9.2(c), 9.2(g),
9.2(j), 9.2(l), 9.2(m) or 9.2(p); and (2) such breach cannot be cured or is not cured by the earlier
of the Outside Closing Date and five (5) days following receipt by the Company of a written notice from Parent describing in reasonable
detail the nature of such breach and, at the option of Parent, reasonably documented Parent Transactions Expenses with respect thereto;
(x) at any time after the Company Stockholder Written Consent Deadline if the Company has not previously received the Company Stockholder
Approval (provided, that upon the Company receiving the Company Stockholder Approval, Parent shall no longer have any right to terminate
this Agreement under this clause (x)); or (y) the Company shall have taken or omitted to take any action the taking or omission
of which is the cause of the occurrence on or after the date hereof of a Material Adverse Effect with respect to the Company; provided,
however that no Parent Party is then in breach of this Agreement so as to prevent the conditions to Closing set forth in
Section 9.3(a), Section 9.3(b) or Section 9.3(c) from being satisfied.
(b) The
Company may terminate this Agreement by giving notice to Parent, without prejudice to any rights or obligations the Company may have,
if: (i) Parent shall have breached any of its covenants, agreements, representations, and warranties contained herein to be performed
on or prior to the Closing Date, which has rendered unsatisfied or would reasonably be expected to render unsatisfied any of the conditions
set forth in Section 9.3(a), Section 9.3(b) or Section 9.3(c); and (ii) such breach cannot
be cured or is not cured by the earlier of the Outside Closing Date and five (5) days following receipt by Parent of a written notice
from the Company describing in reasonable detail the nature of such breach; provided, however that Company
is not then in breach of this Agreement so as to prevent the conditions to Closing set forth in Sections 9.2(a), 9.2(b),
9.2(c), 9.2(g), 9.2(j), 9.2(l), 9.2(m) or 9.2, from being satisfied.
10.3 Effect
of Termination. If this Agreement is terminated pursuant to this Article X, this Agreement shall become void and of no
further force or effect without liability of any party (or any shareholder, director, officer, employee, Affiliate, agent, consultant
or representative of such party) to the other parties hereto; provided that, nothing herein shall relieve any party hereto from
liability for such party’s willful breach of its covenants and agreements hereunder or its fraud or willful misconduct prior to
the termination of this Agreement. The provisions of Section 8.2, this Section 10.3, and Article XI
shall survive any termination hereof pursuant to this Article X.
Article XI
MISCELLANEOUS
11.1 Notices.
Any notice hereunder shall be sent in writing, addressed as specified below, and shall be deemed given: (a) if by hand or nationally
recognized overnight courier service, by 5:00 PM Eastern Time on a Business Day, addressee’s day and time, on the date of delivery,
and if delivered after 5:00 PM Eastern Time, on the first Business Day after such delivery; (b) if by electronic mail or facsimile,
on the date of transmission with affirmative confirmation of receipt; or (c) three (3) Business Days after mailing by prepaid
certified or registered mail, return receipt requested. Notices shall be addressed to the respective parties as follows (excluding telephone
numbers, which are for convenience only), or to such other address as a party shall specify to the others in accordance with these notice
provisions:
if to the Company (or, following
the Closing, the Surviving Corporation or Parent), to:
Set
Jet, Inc.
15011 North 75th Street
Scottsdale, Arizona 85260
Attn: Thomas P. Smith, CEO
E-mail: tom@setjet.com
with a copy
(which shall not constitute notice) to:
Snell &
Wilmer LLP
One East Washington Street
Suite 2700
Phoenix, Arizona 85004
Attn: Dan Mahoney
E-mail: dmahoney@swlaw.com
and
Snell &
Wilmer LLP
350 S Grand Avenue
Suite 3100
Los Angeles, CA 90071
Attn: Joshua Schneiderman
E-mail: jschneiderman@swlaw.com
if
to Parent or Merger Sub (prior to the Closing):
Revelstone
Capital Acquisition Corp.
14350 Myford Road
Irvine, CA 92606
Attn: Morgan Calagy
E-mail: morgan@revelstonecap.com
with a copy (which shall not constitute notice) to:
Loeb & Loeb LLP
345 Park Ave
New York, NY 10154
Attention: Mitchell S. Nussbaum
Fax: 212.504.3013
E-mail: mnussbaum@loeb.com
11.2 Fees
and Expenses.
(a) Except
as otherwise expressly set forth herein, the following shall be paid jointly and severally by Parent and the Surviving Corporation upon
the Closing: the Company Finders’ Fees, the Parent Transaction Expenses and the Company Transaction Expenses. If the Closing does
not take place, each party shall be responsible for its own expenses (including the Company bearing the Company Finders Fees and the
Company Transaction Expenses and the Parent bearing the Parent Transaction Expenses).
(b) Notwithstanding
the foregoing, if Parent determines, in its sole and absolute discretion, that it is necessary or appropriate, in order to consummate
the transactions contemplated by this Agreement, to extend the deadline under its organizational or constituent documents for completing
an initial business combination beyond June 21, 2023, which would require the approval of the stockholders of Parent, the Company
shall, promptly (but in any event within three (3) Business Days) following Parent’s written request therefor, pay Parent,
in the manner and as directed by Parent, for one hundred percent (100%) of all costs and expenses in connection therewith for the period
from and after the date of this Agreement through and including December 31, 2023, including the Extension Fee or any other extension
payments to the Trust Account in accordance with the payment terms for any such extension as set forth in the proxy materials.
11.3 Amendments;
No Waivers; Remedies.
(a) This
Agreement cannot be amended, except by a writing signed by each party, and cannot be terminated orally or by course of conduct. No provision
hereof can be waived, except by a writing signed by the party against whom such waiver is to be enforced, and any such waiver shall apply
only in the particular instance in which such waiver shall have been given.
(b) Neither
any failure or delay in exercising any right or remedy hereunder or in requiring satisfaction of any condition herein nor any course
of dealing shall constitute a waiver of or prevent any party from enforcing any right or remedy or from requiring satisfaction of any
condition. No notice to or demand on a party waives or otherwise affects any obligation of that party or impairs any right of the party
giving such notice or making such demand, including any right to take any action without notice or demand not otherwise required by this
Agreement. No exercise of any right or remedy with respect to a breach of this Agreement shall preclude exercise of any other right or
remedy, as appropriate to make the aggrieved party whole with respect to such breach, or subsequent exercise of any right or remedy with
respect to any other breach.
(c) Except
as otherwise expressly provided herein, no statement herein of any right or remedy shall impair any other right or remedy stated herein
or that otherwise may be available.
(d) Notwithstanding
anything to the contrary contained herein, no party shall seek, nor shall any party be liable for, punitive or exemplary damages under
any tort, contract, equity or other legal theory with respect to any breach (or alleged breach) of this Agreement or any provision hereof
or any matter otherwise relating hereto or arising in connection herewith.
11.4 Arm’s
Length Bargaining; No Presumption Against Drafter. This Agreement has been negotiated at arm’s-length by parties of equal bargaining
strength, each represented by counsel or having had but declined the opportunity to be represented by counsel and having participated
in the drafting of this Agreement. This Agreement creates no fiduciary or other special relationship between the parties, and no such
relationship otherwise exists. No presumption in favor of or against any party in the construction or interpretation of this Agreement
or any provision hereof shall be made based upon which Person might have drafted this Agreement or such provision.
11.5 Publicity.
Except as required by Law or applicable stock exchange rules and except with respect to the Additional Parent SEC Documents, the
parties agree that neither they nor their Representatives shall issue any press release or make any other public disclosure concerning
the transactions contemplated hereunder without the prior approval of the other party hereto. If a party is required to make such a disclosure
as required by Law or applicable stock exchange rules, the party making such determination will, if practicable in the circumstances,
use reasonable commercial efforts to allow the other party reasonable time to comment on such disclosure in advance of its issuance.
11.6 No
Assignment or Delegation. No party may assign any right or delegate any obligation hereunder, including by merger, consolidation,
operation of law or otherwise, without the written consent of the other party. Any purported assignment or delegation without such consent
shall be void.
11.7 Governing
Law. This Agreement and all disputes or controversies arising out of or relating to this Agreement or the transactions contemplated
hereby, including the applicable statute of limitations, shall be governed by and construed in accordance with the Laws of the State
of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware.
11.8 Counterparts;
Facsimile Signatures. This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which
shall constitute one agreement. This Agreement shall become effective upon delivery to each party of an executed counterpart or the earlier
delivery to each party of original, photocopied, or electronically transmitted signature pages that together (but need not individually)
bear the signatures of all other parties.
11.9 Entire
Agreement. This Agreement, together with the Additional Agreements, sets forth the entire agreement of the parties with respect to
the subject matter hereof and thereof and supersedes all prior and contemporaneous understandings and agreements related thereto (whether
written or oral), all of which are merged herein. No provision of this Agreement or any Additional Agreement may be explained or qualified
by any agreement, negotiations, understanding, discussion, conduct or course of conduct or by any trade usage. Except as otherwise expressly
stated herein or in any Additional Agreement, there is no condition precedent to the effectiveness of any provision hereof or thereof.
Notwithstanding the foregoing, the Confidentiality Agreement is not superseded by this Agreement or merged herein and shall continue
in accordance with its terms, including in the event of any termination of this Agreement.
11.10 Severability.
A determination by a court or other legal authority that any provision that is not of the essence of this Agreement is legally invalid
shall not affect the validity or enforceability of any other provision hereof. The parties shall cooperate in good faith to substitute
(or cause such court or other legal authority to substitute) for any provision so held to be invalid a valid provision, as alike in substance
to such invalid provision as is lawful.
11.11 Further
Assurances. Each party shall execute and deliver such documents and take such action, as may reasonably be considered within the
scope of such party’s obligations hereunder, necessary to effectuate the transactions contemplated by this Agreement.
11.12 Third
Party Beneficiaries. Except as provided in Section 8.3 and Section 11.17, neither this Agreement nor any
provision hereof confers any benefit or right upon or may be enforced by any Person not a signatory hereto.
11.13 Waiver.
Reference is made to the Prospectus. The Company has read the Prospectus and understands that Parent has established the Trust Account
for the benefit of the public shareholders of Parent and the underwriters of the IPO pursuant to the Trust Agreement and that, except
for a portion of the interest earned on the amounts held in the Trust Account, Parent may disburse monies from the Trust Account only
for the purposes set forth in the Trust Agreement. For and in consideration of Parent agreeing to enter into this Agreement, the Company,
for itself and on behalf of the Company Securityholders, hereby agrees that it does not now and shall not at any time hereafter prior
to the Closing have any right, title, interest or claim of any kind whatsoever in or to any monies in the Trust Account as a result of,
or arising out of, any negotiations, contracts or agreements with Parent or otherwise in connection with this Agreement and hereby agrees
that it will not seek recourse against the Trust Account for any reason whatsoever.
11.14 Waiver
of Jury Trial. THE PARTIES EACH HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY PROCEEDING
(I) ARISING UNDER THIS AGREEMENT OR UNDER ANY ADDITIONAL AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL
TO THE DEALINGS OF THE PARTIES IN RESPECT OF THIS AGREEMENT OR ANY ADDITIONAL AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO OR
THERETO OR ANY FINANCING IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY, IN
EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. THE PARTIES EACH HEREBY AGREES
AND CONSENTS THAT ANY SUCH PROCEEDING SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES MAY FILE AN ORIGINAL COUNTERPART OF
A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL
BY JURY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH
SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND
(D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 11.14.
11.15 Submission
to Jurisdiction. Each of the parties irrevocably and unconditionally submits to the exclusive jurisdiction of the Chancery Court
of the State of Delaware (or, if the Chancery Court of the State of Delaware does not have jurisdiction, a federal court sitting in Wilmington,
Delaware) (or any appellate courts thereof), for the purposes of any Action (a) arising under this Agreement or under any Additional
Agreement or (b) in any way connected with or related or incidental to the dealings of the parties in respect of this Agreement
or any Additional Agreement or any of the transactions contemplated hereby or thereby, and irrevocably and unconditionally waives any
objection to the laying of venue of any such Action in any such court, and further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such Action has been brought in an inconvenient forum. Each party hereby irrevocably
and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Action (i) arising
under this Agreement or under any Additional Agreement or (ii) in any way connected with or related or incidental to the dealings
of the parties in respect of this Agreement or any Additional Agreement or any of the transactions contemplated hereby or thereby, (A) any
claim that it is not personally subject to the jurisdiction of the courts as described in this Section 11.15 for any reason,
(B) that it or its property is exempt or immune from the jurisdiction of any such court or from any Action commenced in such courts
(whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or
otherwise) and (C) that (x) the Action in any such court is brought in an inconvenient forum, (y) the venue of such Action
is improper or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Each party agrees that
service of any process, summons, notice or document by registered mail to such party’s respective address set forth in Section 11.1
shall be effective service of process for any such Action.
11.16 Remedies.
Except as otherwise expressly provided herein, any and all remedies provided herein will be deemed cumulative with and not exclusive
of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude
the exercise of any other remedy. The parties agree that irreparable damage for which monetary damages, even if available, would not
be an adequate remedy, would occur in the event that the parties do not perform their respective obligations under the provisions of
this Agreement (including failing to take such actions as are required of them hereunder to consummate the transactions contemplated
by this Agreement) in accordance with their specific terms or otherwise breach such provisions. It is accordingly agreed that the parties
shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement, in each case, without posting a bond or undertaking and without
proof of damages and this being in addition to any other remedy to which they are entitled at law or in equity. Each of the parties agrees
that it will not oppose the granting of an injunction, specific performance and other equitable relief when expressly available pursuant
to the terms of this Agreement on the basis that the other parties have an adequate remedy at law or an award of specific performance
is not an appropriate remedy for any reason at law or equity.
11.17 Non-Recourse.
This Agreement may be enforced only against, and any dispute, claim or controversy based upon, arising out of or related to this Agreement
or the transactions contemplated hereby may be brought only against, the entities that are expressly named as parties hereto and then
only with respect to the specific obligations set forth in this Agreement with respect to such party. No past, present or future director,
officer, employee, incorporator, manager, member, partner, shareholder, agent, attorney, advisor, lender or representative or Affiliate
of any named party to this Agreement (which Persons are intended third party beneficiaries of this Section 11.17) shall have
any liability (whether in contract or tort, at law or in equity or otherwise, or based upon any theory that seeks to impose liability
of an entity party against its owners or Affiliates) for any one or more of the representations, warranties, covenants, agreements or
other obligations or liabilities of such named party or for any dispute, claim or controversy based on, arising out of, or related to
this Agreement or the transactions contemplated hereby. Notwithstanding the foregoing, nothing in this Section 11.17 is intended,
nor shall it be deemed or construed, to limit or excuse any Person from liability for fraud or willful misconduct.
11.18 Securityholder
Representative.
(a) By
approving this Agreement and the transactions contemplated hereby or by executing and delivering a Letter of Transmittal, each Company
Securityholder shall have irrevocably authorized and appointed Securityholder Representative as such Person’s representative and
attorney-in-fact to act on behalf of such Person for all purposes in connection with this Agreement, the Additional Agreements and the
agreements ancillary hereto and thereto. The Securityholder Representative shall act as the representative of the Company Securityholders
in respect of all matters arising under this Agreement, the Additional Agreements and the agreements ancillary hereto and thereto, and
shall be authorized to act, or refrain from acting, with respect to any actions to be taken by or on behalf of the Company Securityholders
or the Securityholder Representative, including to enforce any rights granted to the Company Securityholders hereunder and thereunder,
in each case as the Securityholder Representative believes is necessary or appropriate under this Agreement, the Additional Agreements
and/or the agreements ancillary hereto and thereto, for and on behalf of the Company Securityholders. The Company Securityholders shall
be bound by all such actions taken by the Securityholder Representative and the Company Securityholders shall not be permitted to take
any such actions.
(b) The
Securityholder Representative is serving as the Securityholder Representative solely for purposes of administrative convenience, and
is not personally liable for any of the obligations of the Company, any of its Subsidiaries or the Company Securityholders hereunder,
and Parent (on behalf of itself and its Affiliates) agrees that it will not look to the Securityholder Representative or the underlying
assets of the Securityholder Representative for the satisfaction of any obligations of the Company, any of its Subsidiaries or the Company
Securityholders. The Securityholder Representative shall not be liable for any error of judgment, or any action taken, suffered or omitted
to be taken, in connection with the performance by the Securityholder Representative of the Securityholder Representative’s duties
or the exercise by the Securityholder Representative of the Securityholder Representative’s rights and remedies under this Agreement,
any Additional Agreement or any agreement ancillary hereto or thereto, except in the case of its intentional fraud or willful misconduct.
No bond shall be required of the Securityholder Representative. The Securityholder Representative may consult with legal counsel, independent
public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith
by it in accordance with the advice of such counsel, accountants or experts. The Securityholder Representative shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any
Additional Agreement or any agreement ancillary hereto or thereto. Without limiting the generality of the foregoing, the Securityholder
Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Additional
Agreements or any agreement ancillary hereto or thereto, and to consent to any amendment hereof or thereof on behalf of the Company Securityholders
and their respective successors.
(c) Each
Company Securityholder, jointly and severally, agrees to indemnify and hold harmless the Securityholder Representative against all fees
and expenses (including legal fees and expenses) and other amounts payable or incurred by the Securityholder Representative in connection
with the performance of any of its duties under this Agreement or the Additional Agreements, including any such fees, expenses, or other
amounts that may be incurred by the Securityholder Representative in connection with any Action to which the Securityholder Representative
is made a party by reason of the fact it is or was acting as the Securityholder Representative pursuant to the terms of this Agreement
or the Additional Agreements. Notwithstanding the foregoing in this clause (c), in no event will the indemnity contemplated in this clause
(c) be paid by the Company Securityholders to the Securityholder Representative in the form of Earnout Shares released pursuant
to the Earnout Escrow Agreement.
(d) Parent
shall be entitled to rely on all statements, representations, decisions of, and actions taken or omitted to be taken by, the Securityholder
Representative as being the statements, representations, decisions of, and actions of Company Securityholders with respect to the matters
relating to this Agreement or any Additional Agreement or any agreement ancillary hereto or thereto. Parent shall be entitled to deal
solely with the Securityholder Representative (and shall not be required to deal with any Company Securityholder, in his, her or its
capacity as such) with respect to the matters relating to this Agreement or any Additional Agreement or any agreement ancillary hereto
or thereto.
(e) The
Securityholder Representative may resign at any time by giving twenty (20) days’ notice to Parent and the Company Securityholders;
provided, however, in the event of the resignation or removal of the Securityholder Representative, a new Securityholder
Representative (who shall be reasonably acceptable to Parent) shall be appointed by the vote or written consent of a majority of the
shares of Company Common Stock then held by the Company Securityholders as of immediately prior to the Effective Time; provided,
further, that if any such vacancy is not so filled within thirty (30) days following the occurrence of such vacancy, the Parent
Representative shall be entitled to appoint a successor Securityholder Representative, and the provisions of this Section 11.18
shall apply in all respects to such successor Securityholder Representative
(f) The
appointment of the Securityholder Representative is coupled with an interest and shall be irrevocable by Company Securityholders in any
manner or for any reason. This authority granted to the Securityholder Representative shall not be affected by the death, illness, dissolution,
disability, incapacity or other inability to act of any principal pursuant to any applicable Law. Thomas P. Smith hereby accepts his
appointment as the initial Securityholder Representative. Any decision, act, consent or instruction taken by the Securityholder Representative
in accordance with this Section 11.18 on behalf of Company Securityholders (each, an “Securityholder Representative
Authorized”) shall be final, binding and conclusive on Company Securityholders as fully as if such Persons had taken such Securityholder
Representative Authorized Action. Each Company Securityholder agrees that the Securityholder Representative, as the Securityholder Representative,
shall have no liability to a Company Securityholder for any Security Representative Authorized Action.
[The remainder of this page intentionally
left blank; signature pages to follow]
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed as of the day and year first above written.
| |
Parent: |
| |
|
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REVELSTONE
CAPITAL ACQUISITION CORP. |
| |
|
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By: |
/s/ Morgan
Callagy |
| |
Name: |
Morgan Callagy |
| |
Title: |
Co-Chief Executive Officer |
| |
|
| |
By: |
/s/ Daniel
Neukomm |
| |
Name: |
Daniel Neukomm |
| |
Title: |
Co-Chief Executive Officer |
| |
|
| |
Merger
Sub: |
| |
|
| |
REVELSTONE
CAPITAL MERGER SUB, INC. |
| |
|
| |
By: |
/s/ Morgan
Callagy |
| |
Name: |
Morgan Callagy |
| |
Title: |
President |
| |
|
| |
Company: |
| |
|
| |
SET
JET, INC. |
| |
|
| |
By: |
/s/ Thomas P. Smith |
| |
Name: |
Thomas P. Smith |
| |
Title: |
Chief Executive Officer |
| |
|
| |
SECURITYHOLDER
REPRESENTATIVE: |
| |
|
| |
/s/
Thomas P. Smith |
| |
Thomas P. Smith |
[Signature Page to Merger Agreement]
COMPANY SUPPORT
AGREEMENT
THIS
COMPANY SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of July [●], 2023, by and among
Set Jet, Inc., a Nevada corporation (the “Company”), Revelstone Capital Acquisition Corp., a Delaware corporation
(“Parent”), Revelstone Capital Merger Sub, Inc., a Delaware corporation (“Merger Sub”) and
the stockholder of the Company listed on Schedule A hereto (“Securityholder”). Capitalized terms used but not
defined herein are used as they are defined in the Merger Agreement (as defined below).
RECITALS:
A. Securityholder
beneficially owns and has the sole power to dispose of (or sole power to cause the disposition of) the shares of capital stock set forth
opposite Securityholder’s name on Schedule A hereto (such shares of capital stock, together with any New Securities as defined
in and pursuant to Section 3, are collectively referred to herein as the “Subject Securities”).
B. Upon
the satisfaction or waiver of the terms and conditions of the Merger Agreement by and among the Company, Parent, Merger Sub, and Thomas
P. Smith, as Securityholder Representative, dated as of the date hereof (as amended, restated or supplemented from time to time, the
“Merger Agreement”), Merger Sub will merge with and into the Company, after which the Company to be the surviving
corporation of such merger (the “Merger”).
C. Securityholder
believes that the terms of the Merger and the Merger Agreement are fair and that it is in Securityholder’s best interest as holder
of the Subject Securities that the Merger and the other transactions contemplated by the Merger Agreement (collectively, the “Transactions”)
be consummated.
D. In
order to induce the Company and Parent to enter into the Merger Agreement and in consideration of the execution thereof by the Company
and Parent and to enhance the likelihood that the Transactions will be consummated, Securityholder, solely in Securityholder’s
capacity as holder of the Subject Securities, has entered into this Agreement and agrees to be bound hereby.
NOW
THEREFORE, in consideration of the promises and the covenants and agreements set forth below, and for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. No
Transfer of Subject Securities. During the term of this Agreement, Securityholder shall not cause or permit any Transfer (as defined
below) of any of the Subject Securities or enter into any agreement, option, derivative, hedging or arrangement with respect to a Transfer
of any of the Subject Securities. Following the date hereof and except as required by this Agreement, Securityholder shall not deposit
(or permit the deposit of) any Subject Securities in a voting trust or grant any proxy or enter into any voting agreement or similar
agreement with respect to any of the Subject Securities or in any way grant any other Person any right whatsoever with respect to the
voting or disposition of the Subject Securities. For purposes hereof, a Person shall be deemed to have effected a “Transfer”
of Subject Securities if such Person directly or indirectly: (a) sells, pledges, encumbers, grants an option with respect to, transfers,
assigns, or otherwise disposes of any Subject Securities, or any interest in such Subject Securities; or (b) enters into an agreement
or commitment providing for the sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of
such Subject Securities or any interest therein.
2. No
Redemption. Securityholder hereby agrees that, during the term of this Agreement, it shall not redeem, submit a request to the Company
or any transfer agent of the Company to redeem, or otherwise exercise any right to redeem, any Subject Securities.
3. New
Securities. During the term of this Agreement, in the event that, (a) any shares of capital stock or other equity securities
of the Company are issued to Securityholder after the date of this Agreement pursuant to any stock dividend, stock split, recapitalization,
reclassification, combination or exchange of the Company securities owned by Securityholder, (b) Securityholder purchases or otherwise
acquires beneficial ownership of any shares of capital stock or other equity securities of the Company after the date of this Agreement,
or (c) Securityholder acquires the right to vote or share in the voting of any shares of capital stock or other equity securities
of the Company after the date of this Agreement (such shares of capital stock or other equity securities of the Company, collectively
the “New Securities”), then such New Securities acquired or purchased by Securityholder shall be subject to the terms
of this Agreement to the same extent as if they constituted the Subject Securities as of the date hereof.
4. No
Challenge. Securityholder agrees not to commence, join in, facilitate, assist or encourage, and agrees to take all actions necessary
to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Parent, Merger Sub, the Company
or any of their respective successors or directors (a) challenging the validity of, or seeking to enjoin the operation of, any provision
of this Agreement or (b) alleging a breach of any fiduciary duty of any Person in connection with the evaluation, negotiation or
entry into the Merger Agreement.
5. Waiver.
Securityholder hereby irrevocably and unconditionally waives, and agrees not to exercise, any rights of appraisal, dissenter’s
rights and any similar rights under applicable law relating to the Merger and the consummation of the Transactions, including any notice
requirements.
6. Agreement
to Vote Shares; Proxy.
(a) During
the term of this Agreement, at any meeting of stockholders of the Company (whether annual or special), however called, or at any adjournment
or postponement thereof, in any action by written consent of the stockholders of the Company or in any other circumstances upon which
Securityholder’s vote, consent or other approval is sought, Securityholder shall (and shall execute such additional documents or
certificates evidencing such agreement as the Company may reasonably request in connection therewith) to (a) (i) when such
meeting is held, appear at such meeting or otherwise cause the Subject Securities to be counted as present thereat for the purpose of
establishing a quorum, (ii) vote (or cause to be voted or consented to), as applicable, or validly execute and return an action
by written consent or an action to cause such consent to be granted with respect to, all of the Subject Securities that are then entitled
to be voted at any meeting of the Company’s stockholders or written consent of the Company’s stockholders related to the
Transactions or the Merger Agreement (A) in favor of the approval of the Transactions, the approval and adoption of the Merger Agreement
and the approval of the terms of the Merger Agreement, the other agreements reflected therein and this Agreement, (B) in favor of
any other matter reasonably necessary to the consummation of the transactions contemplated by the Merger Agreement and considered and
voted upon by the stockholders of the Company, and (C) against any proposal, amendment, matter or agreement that would in any manner
(i) impede, frustrate, interfere with, prevent, adversely affect or nullify the Transactions or any provision of the Merger Agreement
or this Agreement, (ii) result in a breach in any respect of any covenant, representation or warranty or other obligation or agreement
of the Company under the Merger Agreement, (iii) result in any of the conditions set forth in Article IX of the Merger Agreement
not being fulfilled, or (iv) result in a breach in any respect of any covenant, representation or warranty or other obligation or
agreement of Securityholder contained in this Agreement or any Additional Agreement to which Securityholder is a party. Securityholder
agrees that the Subject Securities that are entitled to be voted shall be voted (or caused to be voted) as set forth in the preceding
sentence whether or not Securityholder’s vote, consent or other approval is sought on only one or on any combination of the matters
set forth in clauses (A)–(C) above and at any time or at multiple times during the term of this Agreement. The obligations
of Securityholder specified in this Section 6(a) shall apply whether or not the Merger or action described above is
recommended by the Company’s Board of Directors or the Company’s Board of Directors has effected an Alternative Transaction
(as defined in the Merger Agreement).
(b) The
Securityholder hereby irrevocably appoints as its proxy and attorney-in-fact, Tom Smith, and any Person designated in writing by Tom
Smith from time to time, each of them individually, with full power of substitution and resubstitution, until the termination of this
Agreement, to vote the Subject Securities (or grant a consent or approval, as applicable) beneficially owned by the Securityholder in
accordance with Section 6(a) in connection with any vote, consent or other approval of stockholders of the Company in
respect of any of the matters described in Section 6(a); provided, however, that the Securityholder’s grant of the
proxy contemplated by this Section 6(b) shall be effective if, and only if, the Securityholder fails to vote such Subject
Securities (or grant a consent or approval, as applicable) in accordance with Section 6(b). This proxy, if it becomes effective,
is coupled with an interest, is given as an additional inducement of the Company and Parent to enter into the Merger Agreement and shall
be irrevocable prior to the Effective Time, at which time any such proxy shall terminate and be released. Neither Tom Smith nor any other
Person may exercise this proxy on any matter, or in circumstance, except as provided above. Tom Smith may terminate this proxy with respect
to the Securityholder at any time at his sole election by written notice provided to the Securityholder and Parent.
7. Opportunity
to Review. Securityholder acknowledges receipt and review of the Merger Agreement and represents that he, she, or it has had (a) the
opportunity to review, and has read, reviewed and understands, the terms and conditions of the Merger Agreement and this Agreement, and
(b) the opportunity to review and discuss the Merger Agreement, the Transactions and this Agreement with his, her or its own advisors
and legal counsel.
8. Public
Disclosure. From the date of this Agreement until the Closing or termination of the Merger Agreement, Securityholder shall not make
any public announcements regarding this Agreement, the Merger Agreement or the transactions contemplated hereby or thereby. Securityholder
understands that it may be the recipient of confidential information of the Company during the term of this Agreement and that such information
may contain or constitute material non-public information concerning the Company, Parent or their Affiliates. Securityholder acknowledges
that trading in the securities of any party to this Agreement while in possession of material nonpublic information or communicating
that information to any other Person who trades in such securities could subject the applicable party to liability under the U.S. federal
and state securities laws, and the rules and regulations promulgated thereunder, including Section 10(b) of the Securities
Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder. Securityholder agrees that it and its Affiliates will not
disclose confidential information of the Company in its possession, nor will it trade in the securities of the Company or Parent while
in possession of material nonpublic information or at all until Securityholder and its Affiliates can do so in compliance with all applicable
laws and without breach of this Agreement.
9. Consent
to Disclosure. Securityholder hereby consents to the publication and disclosure in the Form S-4 and the Proxy Statement (and,
as and to the extent otherwise required by applicable securities Laws or the SEC or any other securities authorities, any other documents
or communications provided by Parent or the Company to any Authority or to securityholders of Parent or the Company) of Securityholder’s
identity and beneficial ownership of the Subject Securities and the nature of Securityholder’s commitments, arrangements and understandings
under and relating to this Agreement and, if deemed appropriate by Parent or the Company, a copy of this Agreement. Securityholder will
promptly provide any information reasonably requested by Parent or the Company for any regulatory application or filing made or approval
sought in connection with the Transactions (including filings with the SEC). Securityholder shall not issue any press release or otherwise
make any public statements with respect to the Transactions or the transactions contemplated herein without the prior written approval
of the Company and Parent.
10. Representations
and Warranties of Securityholder. Securityholder hereby represents and warrants as follows:
(a) Securityholder
(i) is the record and beneficial owner of the Subject Securities, free and clear of any liens, adverse claims, charges or other
encumbrances of any nature whatsoever (other than pursuant to (x) restrictions on transfer under applicable securities laws, or
(y) this Agreement), and (ii) does not beneficially own any securities of the Company (including options, warrants or convertible
securities) other than the Subject Securities.
(b) Except
with respect to obligations under the Company’s Bylaws, Securityholder has the sole right to Transfer, to vote (or cause to vote)
and to direct (or cause to direct) the voting of the Subject Securities, and none of the Subject Securities are subject to any voting
trust or other agreement, arrangement or restriction with respect to the Transfer or the voting of the Subject Securities (other than
restrictions on transfer under applicable securities laws), except as set forth in this Agreement.
(c) Securityholder,
if not a natural person: (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization,
and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this Agreement, to
consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery by Securityholder of
this Agreement, the consummation by Securityholder of the transactions contemplated hereby and the compliance by Securityholder with
the provisions hereof have been duly authorized by all necessary corporate, company, partnership or other action on the part of Securityholder,
and no other corporate, company, partnership or other proceedings on the part of Securityholder are necessary to authorize this Agreement,
to consummate the transactions contemplated hereby or to comply with the provisions hereof.
(d) This
Agreement has been duly executed and delivered by Securityholder, constitutes a valid and binding obligation of Securityholder and, assuming
due authorization, execution and delivery by the other parties thereto, is enforceable against Securityholder in accordance with its
terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
or other similar laws affecting or relating to creditors’ rights generally, and (ii) the availability of injunctive relief
and other equitable remedies.
(e) The
execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and compliance with the provisions
hereof do not and will not conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse
of time, or both) under, any provision of the organizational documents of Securityholder, if applicable, (ii) any material violation
or breach of, or default (with or without notice or lapse of time, or both) under any (A) statute, Law, ordinance, rule or
regulation or (B) judgment, order or decree, in each case, applicable to Securityholder or its properties or assets, or (iii) any
material violation or breach of, or default (with or without notice or lapse of time, or both) under any material contract, trust, commitment,
agreement, understanding, arrangement or restriction of any kind to which Securityholder is a party or by which Securityholder or Securityholder’s
assets are bound.
11. Termination.
This Agreement shall terminate automatically upon, and concurrently with, the Closing or the termination of the Merger Agreement, each
in accordance with the terms of the Merger Agreement. In the event of the termination of this Agreement, this Agreement shall forthwith
become null and void, there shall be no liability on the part of any of the parties, and all rights and obligations of each party hereto
shall cease; provided, however, that no such termination of this Agreement shall relieve any party hereto from any liability
for any breach of any provision of this Agreement prior to such termination.
12. Further
Covenants and Assurances. During the term of this Agreement, Securityholder hereby, to the extent permitted by Laws, waives and agrees
not to exercise any dissenters’ or appraisal rights, or other similar rights, with respect to any Subject Securities which may
arise in connection with the Transactions.
13. Successors,
Assigns and Transferees Bound. Without limiting Section 1 hereof in any way, Securityholder agrees that this Agreement
and the obligations hereunder shall attach to the Subject Securities from the date hereof through the termination of this Agreement and
shall, to the extent permitted by applicable Laws, be binding upon any Person to which legal or beneficial ownership of the Subject Securities
shall pass, whether by operation of law or otherwise, including Securityholder’s heirs, guardians, administrators or successors,
and Securityholder further agrees to take all reasonable actions necessary to effectuate the foregoing.
14. Deposit.
Securityholder shall cause a counterpart of this Agreement to be deposited, in electronic or physical form, with the Company at its principal
place of business or registered office where it shall be subject to the same right of examination by any stockholder, in person or by
agent or attorney, as are the books and records of the Company.
15. Remedies.
Securityholder acknowledges that money damages would be both incalculable and an insufficient remedy for any breach of this Agreement
by it, and that any such breach would cause the Company and Parent irreparable harm. Accordingly, Securityholder agrees that in the event
of any breach or threatened breach of this Agreement, the Company and Parent, in addition to any other remedies at law or in equity each
may have, shall be entitled to seek immediate equitable relief, including injunctive relief and specific performance, without the necessity
of proving the inadequacy of money damages as a remedy and without the necessity of posting any bond or other security, to prevent breaches
of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction.
16. Remedies
Cumulative. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof shall not preclude the simultaneous
or later exercise of any other such right, power or remedy.
17. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when personally delivered,
or if sent by United States certified mail, return receipt requested, postage prepaid, shall be deemed duly given on delivery by United
States Postal Service, or if sent by e-mail or receipted overnight courier services shall be deemed duly given on the Business Day received
if received prior to 5:00 p.m. local time or on the following Business Day if received after 5:00 p.m. local time or on a non-Business
Day, addressed to the respective parties as follows:
| (i) | if
to the Company, to: |
Set Jet, Inc.
15011 North 75th Street
Scottsdale, Arizona 85260
Attn: Tom Smith, CEO
E-mail: tom@setjet.com
with a required copy (which
shall not constitute notice) to:
Snell & Wilmer LLP
One East Washington Street
Suite 2700
Phoenix, Arizona 85004
Attn: Dan Mahoney
E-mail: dmahoney@swlaw.com
and
Snell & Wilmer LLP
350 S Grand Avenue
Suite 3100
Los Angeles, CA 90071
Attn: Joshua Schneiderman
E-mail: jschneiderman@swlaw.com
| (ii) | if
to Parent or Merger Sub, to: |
Revelstone Capital Acquisition
Corp.
14350 Myford Road
Irvine, CA 92606
Attn: Morgan Callagy
E-mail: morgan@revelstonecap.com
with a required copy (which
shall not constitute notice) to:
Loeb & Loeb LLP
345 Park Ave
New York, NY 10154
Attention: Mitchell S. Nussbaum
Fax: 212-504-3013
Email: mnussbaum@loeb.com
| (iii) | if
to Securityholder, to the address set forth on Schedule A hereto. |
18. Severability.
Any provision hereof that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by
Law, each party hereby waives any provision of Law that renders any such provision prohibited or unenforceable in any respect. The parties
further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve,
to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
19. Entire
Agreement/Amendment. This Agreement (together with the Merger Agreement and the other agreements and documents contemplated hereby
and thereby) represents the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the subject matter hereof. This Agreement may not be amended,
modified, altered or supplemented except by means of a written instrument executed and delivered by the parties hereto.
20. Governing
Law. This Agreement, and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out
of or relate to this Agreement or the negotiation, execution or performance of this Agreement, shall be governed by and construed in
accordance with the internal Laws of the State of Delaware without reference to its choice of law rules. Each party agrees that any legal
action or other legal proceeding relating to this Agreement or the enforcement of any provision of this Agreement shall be brought or
otherwise commenced exclusively in the Court of Chancery of the State of Delaware or any federal court of competent jurisdiction in the
State of Delaware. Each of the parties consents to service of process in any such proceeding in any manner permitted by the Laws of the
State of Delaware, and agrees that service of process by registered or certified mail, return receipt requested, at its address specified
pursuant to Section 17 of this Agreement is reasonably calculated to give actual notice. Each party waives and agrees not
to assert (by way of motion, as a defense or otherwise), in any such legal proceeding commenced in such courts, any claim that such party
is not subject personally to the jurisdiction of such courts, that such legal proceeding has been brought in an inconvenient forum, that
the venue of such proceeding is improper or that this Agreement or the subject matter hereof or thereof may not be enforced in or by
such courts. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT HEREOF.
21. Further
Actions. Each of the parties hereto agrees to execute and deliver hereafter any further document, agreement or instrument of assignment,
transfer or conveyance as may be necessary or desirable to effectuate the purposes hereof and as may be reasonably requested in writing
by another party hereto.
22. Expenses.
Each party shall be responsible for its own fees and expenses (including the fees and expenses of investment bankers, accountants and
counsel) in connection with the entering into of this Agreement, the performance of its obligations hereunder and the consummation of
the transactions contemplated hereby; provided, that in the event of any Action arising out of or relating to this Agreement,
the non-prevailing party in any such Action will pay its own expenses and the reasonable documented out-of-pocket expenses, including
reasonable attorneys’ fees and costs, reasonably incurred by the prevailing party.
23. No
Partnership, Agency or Joint Venture. This Agreement is intended to create a contractual relationship among Securityholder, the Company,
Parent and Merger Sub, and is not intended to create, and does not create, any agency, partnership, joint venture or any like relationship
among the parties hereto or among any other Securityholders entering into support agreements with the Company or Parent. Securityholder
has acted independently regarding its decision to enter into this Agreement. Nothing contained in this Agreement shall be deemed to vest
in the Company or Parent any direct or indirect ownership or incidence of ownership of or with respect to any Subject Securities. All
rights, ownership and economic benefits of and relating to the Subject Securities shall remain vested in and belong to Securityholder,
and neither the Company nor Parent shall have any authority to direct Securityholder in the voting or disposition of any Subject Securities,
except as otherwise provided herein.
24. Capacity
as Securityholder. Securityholder signs this Agreement solely in Securityholder’s capacity as holder of the Subject Securities,
and not in any other capacity, including, if applicable, as a director (including “director by deputization”), officer or
employee of the Company or any of its subsidiaries. Nothing herein shall be construed to limit or affect any actions or inactions by
Securityholder or any representative of Securityholder, as applicable, serving as a director of the Company or any subsidiary of the
Company, acting in such Person’s capacity as a director of the Company or any subsidiary of the Company.
25. Counterparts.
This Agreement may be executed by delivery of electronic signatures and in two (2) or more counterparts, each of which shall be
deemed an original, and it shall not be necessary in making proof of this Agreement or the terms hereof to produce or account for more
than one of such counterparts.
[Remainder
of page intentionally left blank; signature pages follow]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above
written.
| |
Securityholder: |
| |
|
| |
SANDSTORM LLC |
| |
|
| |
By: |
|
| |
Name: |
Thomas P. Smith |
| |
Title: |
Manager |
[Signature Page to
Company Support Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above
written.
| |
Securityholder: |
| |
|
| |
THE III TRUST |
| |
|
| |
|
| |
William R. Smith, III, as Trustee of The
III Trust |
[Signature
Page to Company Support Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above
written.
| |
Securityholder: |
| |
|
| |
JADABR, LLC |
| |
|
| |
By: |
|
| |
Name: |
David Jacofsky |
| |
Title: |
Manager |
[Signature Page to
Company Support Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above
written.
| |
Securityholder: |
| |
|
| |
JETT FAMILY TRUST |
| |
|
| |
|
[Signature Page to Company
Support Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above
written.
| |
Securityholder: |
| |
|
| |
DJJ TRUST |
| |
|
| |
|
| |
David Jacofsky, as Trustee of the DJJ Trust |
[Signature Page to
Company Support Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above
written.
| |
Securityholder: |
| |
|
| |
CLEAR WATER AIR LLC |
| |
|
| |
By: |
|
| |
Name: |
Steve Reynolds |
| |
Title: |
Manager |
[Signature Page to
Company Support Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above
written.
| |
Securityholder: |
| |
|
| |
SAU FAMILY LLC |
| |
|
| |
By: |
|
| |
Name: |
Scott Untrecht |
| |
Title: |
Manager |
[Signature Page to
Company Support Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above
written.
| |
Company: |
| |
|
| |
SET JET, INC. |
| |
|
| |
By: |
|
[Signature Page to
Company Support Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above
written.
| |
Parent: |
| |
|
| |
REVELSTONE CAPITAL ACQUISITION CORP. |
| |
|
| |
By: |
|
| |
Name: |
Morgan Callagy |
| |
Title: |
Co-Chief Executive Officer |
| |
Name: |
Daniel Neukomm |
| |
Title: |
Co-Chief Executive Officer |
| |
|
| |
Merger Sub: |
| |
|
| |
REVELSTONE CAPITAL MERGER
SUB, INC. |
| |
|
| |
By: |
|
| |
Name: |
Morgan Callagy |
| |
Title: |
President |
[Signature Page to
Company Support Agreement]
SCHEDULE A
| Name and
Address of Securityholder | |
Number
and Class of
Subject Securities |
| Sandstorm LLC | |
2,000,000 Common Stock |
| The III Trust | |
2,000,000 Common Stock |
| JADABR, LLC | |
100,000 Common Stock |
| JETT Family Trust | |
4,000,000 Common Stock |
| DJJ Trust | |
1,850,000 Common Stock |
| Clear Water Air LLC | |
950,000 Common Stock |
| SAU Family LLC | |
300,000 Common Stock |
PARENT SUPPORT AGREEMENT
THIS PARENT SUPPORT AGREEMENT
(this “Agreement”) is made and entered into as of July [●], 2023, by and among Set Jet, Inc., a Nevada
corporation (the “Company”), Revelstone Capital Acquisition Corp., a Delaware corporation (“Parent”),
Revelstone Capital Merger Sub, Inc., a Delaware corporation (“Merger Sub”) and the stockholders of Parent listed
on Schedule A hereto (“Securityholders”). Capitalized terms used but not defined herein are used as they are
defined in the Merger Agreement (as defined below).
RECITALS:
A. Each
Securityholder beneficially owns and has the sole power to dispose of (or sole power to cause the disposition of) the shares of capital
stock set forth opposite such Securityholder’s name on Schedule A hereto (such shares of capital stock, together with any
New Securities, as defined in and pursuant to Section 3, of such Securityholder, are collectively referred to herein as the “Subject
Securities”).
B.
Upon the satisfaction or waiver of the terms and conditions of the
Merger Agreement by and among the Company, Parent, Merger Sub and Thomas P. Smith, as Securityholder Representative, dated as of the
date hereof (as amended, restated or supplemented from time to time, the “Merger Agreement”), Merger Sub will
merge with and into the Company, after which the Company to be the surviving corporation of such merger (the
“Merger”).
C.
Each Securityholder believes that the terms of the Merger
and the Merger Agreement are fair and that it is in such Securityholder’s best interest as holder of the Subject Securities
that the Merger and the other transactions contemplated by the Merger Agreement (collectively, the
“Transactions”) be consummated.
D.
In order to induce the Company and Parent to enter into the Merger
Agreement and in consideration of the execution thereof by the Company and Parent and to enhance the likelihood that the
Transactions will be consummated, each Securityholder, solely in such Securityholder’s capacity as holder of the Subject
Securities, has entered into this Agreement and agrees to be bound hereby.
NOW THEREFORE, in consideration
of the promises and the covenants and agreements set forth below, and for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
1.
No Transfer of Subject Securities. During the term of this
Agreement, no Securityholder shall cause or permit any Transfer (as defined below) of any of the Subject Securities or enter into
any agreement, option, derivative, hedging or arrangement with respect to a Transfer of any of the Subject Securities. Following the
date hereof and except as required by this Agreement, no Securityholder shall deposit (or permit the deposit of) any Subject
Securities in a voting trust or grant any proxy or enter into any voting agreement or similar agreement with respect to any of the
Subject Securities or in any way grant any other Person any right whatsoever with respect to the voting or disposition of the
Subject Securities. For purposes hereof, a Person shall be deemed to have effected a “Transfer” of Subject
Securities if such Person directly or indirectly: (a) sells, pledges, encumbers, grants an option with respect to, transfers,
assigns, or otherwise disposes of any Subject Securities, or any interest in such Subject Securities; or (b) enters into an
agreement or commitment providing for the sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or
disposition of such Subject Securities or any interest therein.
2. No
Redemption. Each Securityholder hereby agrees that, during the term of this Agreement, it shall not redeem any Subject Securities,
submit a request to Parent or any transfer agent of Parent to redeem any Subject Securities, or otherwise exercise any right to redeem
any Subject Securities.
3. New
Securities. During the term of this Agreement, in the event that (a) any shares of capital stock or other equity securities of
Parent are issued to a Securityholder after the date of this Agreement pursuant to any stock dividend, stock split, recapitalization,
reclassification, combination or exchange of Parent securities owned by such Securityholder, (b) a Securityholder purchases or otherwise
acquires beneficial ownership of any shares of capital stock or other equity securities of Parent after the date of this Agreement, or
(c) a Securityholder acquires the right to vote or share in the voting of any shares of capital stock or other equity securities
of Parent after the date of this Agreement (such shares of capital stock or other equity securities of Parent, collectively the “New
Securities”), then such New Securities acquired or purchased by such Securityholder shall be subject to the terms of this Agreement
to the same extent as if they constituted the Subject Securities as of the date hereof.
4. No
Challenge. Each Securityholder agrees not to commence, join in, facilitate, assist or encourage, and agrees to take all actions necessary
to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Parent, Merger Sub, the Company
or any of their respective successors or directors (a) challenging the validity of, or seeking to enjoin the operation of, any provision
of this Agreement or (b) alleging a breach of any fiduciary duty of any Person in connection with the evaluation, negotiation or
entry into the Merger Agreement.
5. Waiver.
Each Securityholder hereby irrevocably and unconditionally waives, and agrees not to exercise, any rights of appraisal, dissenter’s
rights and any similar rights under applicable law relating to the Merger and the consummation of the Transactions, including any notice
requirements.
6. Agreement
to Vote Shares. During the term of this Agreement, at any meeting of stockholders of Parent (whether annual or special), however called,
or at any adjournment or postponement thereof, in any action by written consent of the stockholders of Parent or in any other circumstances
upon which a Securityholder’s vote, consent or other approval is sought, such Securityholder shall (and shall execute such additional
documents or certificates evidencing such agreement as the Company may reasonably request in connection therewith) to (a) (i) when
such meeting is held, appear at such meeting or otherwise cause the Subject Securities to be counted as present thereat for the purpose
of establishing a quorum, (ii) vote (or cause to be voted or consented to), as applicable, or validly execute and return an action
by written consent or an action to cause such consent to be granted with respect to, all of the Subject Securities that are then entitled
to be voted at any meeting of the Parent’s stockholders or written consent of the Parent’s stockholders related to the Transactions
or the Merger Agreement (A) in favor of the approval of the Transactions, the approval and adoption of the Merger Agreement and the
approval of the terms of the Merger Agreement, the other agreements reflected therein and this Agreement, (B) in favor of any other
matter reasonably necessary to the consummation of the transactions contemplated by the Merger Agreement and considered and voted upon
by the stockholders of Parent, (C) in favor of the approval of the Parent Proposals (as defined in the Merger Agreement) and (D) against
any proposal, amendment, matter or agreement that would in any manner (i) impede, frustrate, interfere with, prevent, adversely affect
or nullify the Transactions or any provision of the Merger Agreement or this Agreement, (ii) result in a breach in any respect of
any covenant, representation or warranty or other obligation or agreement of Parent or Merger Sub under the Merger Agreement, (iii) result
in any of the conditions set forth in Article IX of the Merger Agreement not being fulfilled, or (iv) result in a breach in
any respect of any covenant, representation or warranty or other obligation or agreement of a Securityholder contained in this Agreement
or any Additional Agreement to which a Securityholder is a party. Each Securityholder agrees that the Subject Securities held by him,
her or it that are entitled to be voted shall be voted (or caused to be voted) as set forth in the preceding sentence whether or not such
Securityholder’s vote, consent or other approval is sought on only one or on any combination of the matters set forth in clauses
(A)–(D) above and at any time or at multiple times during the term of this Agreement. The obligations of a Securityholder specified
in this Section 6 shall apply whether or not the Merger or any action described above is recommended by Parent’s Board of Directors
or Parent’s Board of Directors has effected an Alternative Transaction (as defined in the Merger Agreement).
7. Opportunity
to Review. Each Securityholder acknowledges receipt and review of the Merger Agreement and represents that he, she, or it has had
(a) the opportunity to review, and has read, reviewed and understands, the terms and conditions of the Merger Agreement and this
Agreement, and (b) the opportunity to review and discuss the Merger Agreement, the Transactions and this Agreement with his, her
or its own advisors and legal counsel.
8. Public
Disclosure. From the date of this Agreement until the Closing or termination of the Merger Agreement, no Securityholder shall make
any public announcements regarding this Agreement, the Merger Agreement or the transactions contemplated hereby or thereby. Each Securityholder
understands that it may be the recipient of confidential information of the Company during the term of this Agreement and that such information
may contain or constitute material non-public information concerning the Company, Parent or their Affiliates. Each Securityholder acknowledges
that trading in the securities of any party to this Agreement while in possession of material nonpublic information or communicating that
information to any other Person who trades in such securities could subject the applicable party to liability under the U.S. federal and
state securities laws, and the rules and regulations promulgated thereunder, including Section 10(b) of the Securities
Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder. Each Securityholder agrees that such Securityholder and
such Securityholder’s Affiliates will not disclose confidential information of the Company in its possession, nor will it trade
in the securities of the Company or Parent while in possession of material nonpublic information or at all until such Securityholder and
such Securityholder’s Affiliates can do so in compliance with all applicable laws and without breach of this Agreement.
9. Consent
to Disclosure. Each Securityholder hereby consents to the publication and disclosure in the Form S-4 and the Proxy Statement
(and, as and to the extent otherwise required by applicable securities Laws or the SEC or any other securities authorities, any other
documents or communications provided by Parent or the Company to any Authority or to securityholders of Parent or the Company) of such
Securityholder’s identity and beneficial ownership of the Subject Securities and the nature of such Securityholder’s commitments,
arrangements and understandings under and relating to this Agreement and, if deemed appropriate by Parent or the Company, a copy of this
Agreement. Each Securityholder will promptly provide any information reasonably requested by Parent or the Company for any regulatory
application or filing made or approval sought in connection with the Transactions (including filings with the SEC). No Securityholder
shall issue any press release or otherwise make any public statements with respect to the Transactions or the transactions contemplated
herein without the prior written approval of the Company and Parent.
10. Representations
and Warranties of Securityholder. Each Securityholder hereby represents and warrants as follows:
(a) Such
Securityholder (i) is the record and beneficial owner of such Securityholder’s Subject Securities, free and clear of any liens,
adverse claims, charges or other encumbrances of any nature whatsoever (other than pursuant to (x) restrictions on transfer under
applicable securities laws, or (y) this Agreement), and (ii) does not beneficially own any securities of Parent (including options,
warrants or convertible securities) other than the Subject Securities.
(b) Except
with respect to obligations under Parent’s Bylaws, such Securityholder has the sole right to Transfer, to vote (or cause to vote)
and to direct (or cause to direct) the voting of the Subject Securities, and none of the Subject Securities are subject to any voting
trust or other agreement, arrangement or restriction with respect to the Transfer or the voting of the Subject Securities (other than
restrictions on transfer under applicable securities laws), except as set forth in this Agreement.
(c) Such
Securityholder, if not a natural person: (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction
of organization, and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this
Agreement, to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery by such
Securityholder of this Agreement, the consummation by such Securityholder of the transactions contemplated hereby and the compliance by
such Securityholder with the provisions hereof have been duly authorized by all necessary corporate, company, partnership or other action
on the part of such Securityholder, and no other corporate, company, partnership or other proceedings on the part of such Securityholder
are necessary to authorize this Agreement, to consummate the transactions contemplated hereby or to comply with the provisions hereof.
(d) This
Agreement has been duly executed and delivered by such Securityholder, constitutes a valid and binding obligation of such Securityholder
and, assuming due authorization, execution and delivery by the other parties thereto, is enforceable against such Securityholder in accordance
with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws affecting or relating to creditors’ rights generally, and (ii) the availability of injunctive
relief and other equitable remedies.
(e) The
execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and compliance with the provisions
hereof do not and will not conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse
of time, or both) under, any provision of the organizational documents of such Securityholder, if applicable, (ii) any material violation
or breach of, or default (with or without notice or lapse of time, or both) under any (A) statute, Law, ordinance, rule or regulation
or (B) judgment, order or decree, in each case, applicable to such Securityholder or such Securityholder’s properties or assets,
or (iii) any material violation or breach of, or default (with or without notice or lapse of time, or both) under any material contract,
trust, commitment, agreement, understanding, arrangement or restriction of any kind to which such Securityholder is a party or by which
such Securityholder or such Securityholder’s assets are bound.
11. Termination.
This Agreement shall terminate automatically upon, and concurrently with, the Closing or the termination of the Merger Agreement, each
in accordance with the terms of the Merger Agreement. In the event of the termination of this Agreement, this Agreement shall forthwith
become null and void, there shall be no liability on the part of any of the parties, and all rights and obligations of each party hereto
shall cease; provided, however, that no such termination of this Agreement shall relieve any party hereto from any liability
for any breach of any provision of this Agreement prior to such termination.
12. Further
Covenants and Assurances. During the term of this Agreement, each Securityholder hereby, to the extent permitted by Laws, waives and
agrees not to exercise any dissenters’ or appraisal rights, or other similar rights, with respect to any Subject Securities which
may arise in connection with the Transactions.
13. Successors,
Assigns and Transferees Bound. Without limiting Section 1 hereof in any way, each Securityholder agrees that this Agreement and
the obligations hereunder shall attach to the Subject Securities from the date hereof through the termination of this Agreement and shall,
to the extent permitted by applicable Laws, be binding upon any Person to which legal or beneficial ownership of the Subject Securities
shall pass, whether by operation of law or otherwise, including Securityholder’s heirs, guardians, administrators or successors,
and each Securityholder further agrees to take all reasonable actions necessary to effectuate the foregoing.
14. Deposit.
Each Securityholder shall cause a counterpart of this Agreement to be deposited, in electronic or physical form, with Parent at its principal
place of business or registered office where it shall be subject to the same right of examination by any stockholder, in person or by
agent or attorney, as are the books and records of Parent.
15. Remedies.
Each Securityholder acknowledges that money damages would be both incalculable and an insufficient remedy for any breach of this Agreement
by it, and that any such breach would cause the Company and Parent irreparable harm. Accordingly, each Securityholder agrees that in the
event of any breach or threatened breach of this Agreement, the Company and Parent, in addition to any other remedies at law or in equity
each may have, shall be entitled to seek immediate equitable relief, including injunctive relief and specific performance, without the
necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting any bond or other security, to prevent
breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state
having jurisdiction.
16. Remedies
Cumulative. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof shall not preclude the simultaneous
or later exercise of any other such right, power or remedy.
17. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when personally delivered,
or if sent by United States certified mail, return receipt requested, postage prepaid, shall be deemed duly given on delivery by United
States Postal Service, or if sent by e-mail or receipted overnight courier services shall be deemed duly given on the Business Day received
if received prior to 5:00 p.m. local time or on the following Business Day if received after 5:00 p.m. local time or on a non-Business
Day, addressed to the respective parties as follows:
(i)
if to the Company, to:
Set Jet, Inc.
15011 North 75th Street
Scottsdale, Arizona 85260
Attn: Tom Smith, CEO
E-mail: tom@setjet.com
with a required copy (which shall not constitute notice)
to:
Snell & Wilmer LLP
One East Washington Street
Suite 2700
Phoenix, Arizona 85004
Attn: Dan Mahoney
E-mail: dmahoney@swlaw.com
and
Snell & Wilmer LLP
350 S Grand Avenue
Suite 3100
Los Angeles, CA 90071
Attn: Joshua Schneiderman
E-mail: jschneiderman@swlaw.com
(ii)
if to Parent or Merger Sub,
to:
Revelstone Capital Acquisition Corp.
14350 Myford Road
Irvine, CA 92606
Attn: Morgan Callagy
E-mail: morgan@revelstonecap.com
with a required copy (which shall not constitute notice)
to:
Loeb & Loeb LLP
345 Park Ave
New York, NY 10154
Attention: Mitchell S. Nussbaum
Fax: 212.504.3013
E-mail: mnussbaum@loeb.com
(iii) if
to a Securityholder, to the address of such Securityholder set forth on Schedule A hereto.
18. Severability.
Any provision hereof that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by
Law, each party hereby waives any provision of Law that renders any such provision prohibited or unenforceable in any respect. The parties
further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve,
to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
19. Entire
Agreement/Amendment. This Agreement (together with the Merger Agreement and the other agreements and documents contemplated hereby
and thereby) represents the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the subject matter hereof. This Agreement may not be amended,
modified, altered or supplemented except by means of a written instrument executed and delivered by the parties hereto.
20. Governing
Law. This Agreement, and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out
of or relate to this Agreement or the negotiation, execution or performance of this Agreement, shall be governed by and construed in accordance
with the internal Laws of the State of Delaware without reference to its choice of law rules. Each party agrees that any legal action
or other legal proceeding relating to this Agreement or the enforcement of any provision of this Agreement shall be brought or otherwise
commenced exclusively in the Court of Chancery of the State of Delaware or any federal court of competent jurisdiction in the State of
Delaware. Each of the parties consents to service of process in any such proceeding in any manner permitted by the Laws of the State of
Delaware, and agrees that service of process by registered or certified mail, return receipt requested, at its address specified pursuant
to Section 17 of this Agreement is reasonably calculated to give actual notice. Each party waives and agrees not to assert (by way
of motion, as a defense or otherwise), in any such legal proceeding commenced in such courts, any claim that such party is not subject
personally to the jurisdiction of such courts, that such legal proceeding has been brought in an inconvenient forum, that the venue of
such proceeding is improper or that this Agreement or the subject matter hereof or thereof may not be enforced in or by such courts. EACH
PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE
AND ENFORCEMENT HEREOF.
21. Further
Actions. Each of the parties hereto agrees to execute and deliver hereafter any further document, agreement or instrument of assignment,
transfer or conveyance as may be necessary or desirable to effectuate the purposes hereof and as may be reasonably requested in writing
by another party hereto.
22. Expenses.
Each party shall be responsible for its own fees and expenses (including the fees and expenses of investment bankers, accountants and
counsel) in connection with the entering into of this Agreement, the performance of its obligations hereunder and the consummation of
the transactions contemplated hereby; provided, that in the event of any Action arising out of or relating to this Agreement, the
non-prevailing party in any such Action will pay its own expenses and the reasonable documented out-of-pocket expenses, including reasonable
attorneys’ fees and costs, reasonably incurred by the prevailing party.
23. No
Partnership, Agency or Joint Venture. This Agreement is intended to create a contractual relationship among the Securityholders, the
Company, Parent and Merger Sub, and is not intended to create, and does not create, any agency, partnership, joint venture or any like
relationship among the parties hereto or among any other Securityholders entering into support agreements with the Company or Parent.
Each Securityholder has acted independently regarding its decision to enter into this Agreement. Nothing contained in this Agreement shall
be deemed to vest in the Company or Parent any direct or indirect ownership or incidence of ownership of or with respect to any Subject
Securities. All rights, ownership and economic benefits of and relating to a Securityholder’s Subject Securities shall remain vested
in and belong to such Securityholder, and neither the Company nor Parent shall have any authority to direct a Securityholder in the voting
or disposition of any Subject Securities, except as otherwise provided herein.
24. Capacity
as Securityholder. Each Securityholder signs this Agreement solely in such Securityholder’s capacity as holder of the Subject
Securities, and not in any other capacity, including, if applicable, as a director (including “director by deputization”),
officer or employee of Parent or any of its subsidiaries. Nothing herein shall be construed to limit or affect any actions or inactions
by a Securityholder or any representative of a Securityholder, as applicable, serving as a director of Parent or any subsidiary of Parent,
acting in such Person’s capacity as a director of Parent or any subsidiary of Parent.
25. Counterparts.
This Agreement may be executed by delivery of electronic signatures and in two (2) or more counterparts, each of which shall be deemed
an original, and it shall not be necessary in making proof of this Agreement or the terms hereof to produce or account for more than one
of such counterparts.
[Remainder
of page intentionally left blank; signature pages follow]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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Company: |
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SET JET, INC. |
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By: |
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Name: |
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Title: |
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[Signature
Page to Parent Support Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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Parent: |
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REVELSTONE CAPITAL ACQUISITION CORP. |
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By: |
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Name: |
Morgan Callagy |
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Title: |
Co-Chief Executive Officer |
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By: |
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Name: |
Daniel Neukomm |
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Title: |
Co-Chief Executive Officer |
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Merger Sub: |
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REVELSTONE CAPITAL MERGER SUB, INC. |
[Signature
Page to Parent Support Agreement]
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Securityholders: |
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LA JOLLA GROUP, INC. |
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Morgan Callagy |
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Daniel Neukomm |
[Signature
Page to Parent Support Agreement]
SCHEDULE A
|
Name and Address
of Securityholder |
Number and Class of
Subject Securities |
|
La Jolla Group, Inc.
c/o Revelstone Capital
Acquisition Corp.
14350 Myford Road
Irvine, CA 92606
Morgan Callagy
c/o Revelstone Capital
Acquisition Corp.
14350 Myford Road
Irvine, CA 92606
Daniel Neukomm
c/o Revelstone Capital
Acquisition Corp.
14350 Myford Road
Irvine, CA 92606
|
517,500
607,491
607,491
|
VOTING AGREEMENT
This Voting Agreement (this
“Agreement”) is made as of July [●], 2023, by and among Set Jet, Inc., a Nevada corporation (the “Company”),
the Company shareholders listed on Schedule A attached hereto (together with the Company, the “Company Voting Parties”
and each a “Company Voting Party”), Revelstone Capital, LLC, a Delaware limited liability company (the “Sponsor”),
Revelstone Capital Acquisition Corp., a Delaware corporation (“Parent”), certain Parent stockholders listed on Schedule
B attached hereto (the “Parent Parties” and together with Parent, the “Parent Voting Parties” and
each a “Parent Voting Party,” and the Parent Voting Parties together with the Company Voting Parties, the “Voting
Parties” and each a “Voting Party”). For purposes of this Agreement, capitalized terms used and not defined
herein shall have the respective meanings ascribed to them in the Merger Agreement (as defined below).
RECITALS:
WHEREAS, the Company, Parent,
Revelstone Capital Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and Tom Smith, as Securityholder Representative,
entered into a Merger Agreement, dated as of the date hereof (the “Merger Agreement”);
WHEREAS, pursuant to the Merger
Agreement, Merger Sub will merge with and into the Company, after which the Company will be the surviving company (“Surviving
Corporation”) and a wholly-owned subsidiary of Parent and Parent shall change its name to “Set Jet, Inc.”;
WHEREAS, each of the Voting
Parties currently owns, or on closing of the transactions contemplated by the Merger Agreement, will own, shares of the Parent’s
capital stock, and wishes to provide for orderly elections of the Parent’s Board of Director’s (the “Parent Board”)
and Surviving Corporation’s Board of Directors (“Surviving Corporation’s Board”) as described herein; and
WHEREAS, the execution and
delivery of this Agreement is a condition to the Closing and the other transactions contemplated by the Merger Agreement.
NOW THEREFORE, in consideration
of the foregoing and of the promises and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Agreement
to Vote. Each Voting Party shall vote all securities of Parent that may vote in the election of the Parent’s Board and Surviving
Corporation’s Board that such Voting Party owns from time to time (hereinafter referred to as the “Voting Shares”)
in accordance with the provisions of this Agreement, whether at a regular or special meeting of stockholders or any class or series of
stockholders or by written consent.
2. Election
of Parent’s Board.
2.1 Voting.
At the Effective Time and until the termination of this Agreement, each Voting Party shall vote all Voting Shares in such manner as may
be necessary to elect (and maintain in office) as members of Parent’s Board up to six (6) directors, the majority of whom shall
be independent, as designated by the Sponsor and the Company as follows:
(a) Up
to one (1) independent director (“Sponsor Designee”) designated by the Sponsor (as defined in the Merger Agreement);
and
(b) Up
to five (5) person(s) (each a “Company Designee”) designated by the Company, a majority of whom shall be
independent directors.
2.2 Initial
Designees. The initial Sponsor Designee, if any, shall be determined by the Sponsor prior to the Closing through written notice to
each party hereto. The initial Company Designees, if any, shall be determined by the Company through written notice to each party hereto.
2.3 Obligations;
Removal of Directors; Vacancies. Each of the Voting Parties, Parent and the Company agree not to take any actions that would contravene
or materially and adversely affect the provisions of this Agreement and the intention of the parties with respect to the composition of
Parent’s Board as herein stated. The Sponsor and the Company, as applicable, shall have the exclusive right to (a) remove their
nominee(s) from the Parent’s Board, and each party hereto shall vote such party’s Voting Shares to cause the removal
of any such nominee at the request of the Sponsor or the Company, as applicable, and (b) designate or nominate a director(s) for
election or appointment, as applicable, to the Parent’s Board to fill a vacancy(s) created by reason of death, removal or resignation
of its nominee(s) to the Parent’s Board, and each party hereto shall vote such party’s Voting Shares in favor of nominating
or causing the Parent’s Board to appoint, as applicable, a replacement director(s) designated by the Sponsor or the Company,
as applicable, to fill any such vacancy(s) created pursuant to clause (i) or (ii) above to be filled by a replacement director(s) designated
by the Sponsor or the Company, as palpable, as promptly as practicable after such designation (and in any event prior to the next meeting
or action of the Parent’s Board or applicable committee).
3. Election
of the Board of the Surviving Corporation. At the Effective Time, the initial directors of the Surviving Corporation shall consist
of the same persons serving on the Company’s Board of Directors as of immediately prior to the Effective Time, other than those
directors that have resigned as contemplated by Section 9.2(k) of the Merger Agreement. Such directors shall hold office
until their successors shall have been duly elected or appointed and qualified or until their earlier death, resignation or removal in
accordance with the Surviving Corporation’s articles of incorporation and bylaws.
4. Committees.
To the fullest extent permitted by applicable Law, including the rules of any applicable securities exchange, each committee of the
Parent’s Board shall include the director, if any, elected to the Parent’s Board pursuant to Section 2.1(a).
5. Successors
in Interest of the Voting Parties.
5.1 The
provisions of this Agreement shall be binding upon the successors in interest of any Company Voting Party with respect to any of such
Company Voting Party’s Voting Shares or any voting rights therein, unless such shares are sold into the public markets. Each Company
Voting Party shall not, and Parent and the Company shall not, permit the transfer of any Company Voting Party’s Voting Shares (except
for sales of Voting Shares into the public markets), unless and until the person to whom such securities are to be transferred shall have
executed a written agreement pursuant to which such person becomes a party to this Agreement and agrees to be bound by all the provisions
hereof as if such person was a Company Voting Party hereunder.
5.2 The
provisions of this Agreement shall not be binding upon the successors in interest of any Parent Voting Party.
6. Covenants.
Parent, the Company and each Voting Party agrees to take all actions required to ensure that the rights given to each Voting Party hereunder
are effective and that each Voting Party enjoys the benefits thereof. Such actions include, without limitation, the use of best efforts
to cause the nomination of the designees, as provided herein, for election as directors of Parent and the Surviving Corporation. Neither
Parent, the Company nor any Voting Party will, by any voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be performed hereunder by Parent, the Company or any such Voting Party, as applicable, but will at all times in good faith
assist in the carrying out of all of the provisions of this Agreement and in the taking of all such actions as may be necessary or appropriate
in order to protect the rights of each Voting Party hereunder against impairment.
7. Grant
of Proxy. The parties agree that this Agreement does not constitute the granting of a proxy to any party or any other person; provided,
however, that should the provisions of this Agreement be construed to constitute the granting of proxies, such proxies shall be
deemed coupled with an interest and are irrevocable for the term of this Agreement.
8. Specific
Performance. It is agreed and understood that monetary damages would not adequately compensate an injured party for the breach of
this Agreement by any party hereto, that this Agreement shall be specifically enforceable, and that any breach of this Agreement shall
be the proper subject of a temporary or permanent injunction or restraining order, this being in addition to any other remedy to which
it is entitled at Law or in equity, and that each party waives the posting of any bond or security in connection with any proceeding related
thereto. Further, each party hereto waives any claim or defense that there is an adequate remedy at law for such breach or threatened
breach and agrees that a party’s rights would be materially and adversely affected if the obligations of the other parties under
this Agreement were not carried out in accordance with the terms and conditions hereof.
9. Remedies
Cumulative. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof shall not preclude the simultaneous
or later exercise of any other such right, power or remedy.
10. Manner
of Voting. The voting of shares pursuant to this Agreement may be effected in person, by proxy, by written consent or in any other
manner permitted by applicable law.
11. Termination.
This Agreement shall terminate upon the earlier of (a) the termination of the Merger Agreement in accordance with its terms, (b) the
date that is two (2) years from the Closing Date, or (c) immediately prior to a transaction pursuant to which a person or group
other than current shareholders of Parent, Company or the Voting Parties, or their respective affiliates, will control greater than fifty
percent (50%) of Parent or Surviving Corporation’s voting power with respect to the election of directors of Parent or the Surviving
Corporation. Nothing in this Section 11 shall relieve or otherwise limit the liability of any party for breach of this Agreement
prior to termination hereof.
12. Amendments
and Waivers. Except as otherwise provided herein, any provision of this Agreement may be amended or the observance thereof may be
waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of (a) Parent,
(b) the Company and (c) the holders of a majority of Voting Shares then held by the Voting Parties, voting separately as a class;
provided, however, that the right of the Company to nominate the Company Designee shall not be amended without the written consent
of a majority in interest of the stockholders of the Company; and provided further, that the right of the Shareholders’ Representative
to nominate the Stockholder Designees shall not be amended without the written consent of the Shareholders’ Representative.
13. Stock
Splits, Stock Dividends, etc. In the event of any stock split, stock dividend, recapitalization, reorganization or the like,
any securities issued with respect to Voting Shares held by Voting Parties shall become Voting Shares for purposes of this Agreement.
14. Notices.
Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, emailed or sent by overnight
mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid, and shall be deemed to be given and
received (a) when so delivered personally, (b) when sent, with no mail undeliverable or other rejection notice, if sent by email,
or (c) three (3) Business Days after the date of mailing to the address below or to such other address or addresses as such
person may hereafter designate by notice given hereunder:
(a) If
to the Company (or, following the Closing, the Surviving Corporation or Parent), to:
Set Jet, Inc.
15011 North 75th Street
Scottsdale, Arizona 85260
Attn: Tom Smith, CEO
E-mail: tom@setjet.com
with a required copy (which shall not constitute notice)
to:
Snell & Wilmer LLP
One East Washington Street
Suite 2700
Phoenix, Arizona 85004
Attn: Dan Mahoney
E-mail: dmahoney@swlaw.com
and
Snell & Wilmer LLP
350 S Grand Avenue
Suite 3100
Los Angeles, CA 90071
Attn: Joshua Schneiderman
E-mail: jschneiderman@swlaw.com
if to Parent (prior to the Closing):
Revelstone Capital Acquisition Corp.
14350 Myford Road
Irvine, CA 92606
Attn: Morgan Callagy
E-mail: morgan@revelstonecap.com
with a required copy (which shall not constitute notice)
to:
Loeb & Loeb LLP
345 Park Ave
New York, NY 10154
Attention: Mitchell S. Nussbaum
Fax: 212.504.3013
E-mail: mnussbaum@loeb.com
(b) If
to any Voting Party, to such address or addresses set forth below each Voting Party’s signature.
15. Severability.
In the event that any provision of the Agreement shall be invalid, illegal or unenforceable, the remainder of this Agreement will continue
in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement
with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void
or unenforceable provision.
16. Governing
Law. This Agreement and the legal relations between the parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of Delaware without reference to its conflicts of laws provisions.
17. Counterparts;
Electronic Execution or Delivery. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed
an original and all of which together shall constitute one instrument. This Agreement may be executed electronically; any executed counterpart
of this Agreement may be delivered by facsimile or electronic mail; and any such electronically executed or delivered copy of a counterpart
signature page shall have the same force and effect as an originally executed copy hereof.
18. Successors
and Assigns. Except as otherwise expressly provided in this Agreement, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors and assigns of the parties hereto; provided, however, that no Voting Party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement without the consent of the Company and Parent.
19. Entire
Agreement. This Agreement (together with the Merger Agreement and the other agreements and documents expressly contemplated hereby
and thereby) constitutes the full and entire understanding and agreement among the parties, and supersedes any prior agreement or understanding
among the parties, with regard to the subjects hereof and thereof, and no party shall be liable or bound to any other party in any manner
by any warranties, representations or covenants except as specifically set forth herein or therein.
[Remainder of page intentionally left blank;
signature pages follow]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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COMPANY: |
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SET JET, INC. |
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By: |
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PARENT: |
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REVELSTONE CAPITAL ACQUISITION CORP. |
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By: |
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Name: Morgan Callagy |
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Title: Co-Chief Executive Officer |
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By: |
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Name: Daniel Neukomm |
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Title: Co-Chief Executive Officer |
[Signature Page to Voting Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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SANDSTORM LLC |
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By: |
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Name: Thomas P. Smith |
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Title: Manager |
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Address for Notice: |
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Attention: |
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with a required copy to (which shall
not constitute notice): |
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Attention: |
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[Signature Page to Voting Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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THE III TRUST |
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William R. Smith, III, as Trustee
of The III Trust |
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Address for Notice: |
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Attention: |
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with a required copy to (which shall
not constitute notice): |
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Attention: |
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[Signature Page to Voting Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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JADABR, LLC |
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By: |
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Name: David Jacofsky |
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Title: Manager |
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Address for Notice: |
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Attention: |
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Email: |
david.jacofsky@hopco.com |
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with a required copy to (which shall
not constitute notice): |
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Attention: |
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[Signature Page to Voting Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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JETT FAMILY TRUST |
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Kiki Constantine, as Trustee of the JETT Family Trust |
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Address for Notice: |
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Attention: |
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with a required copy to (which shall
not constitute notice): |
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Attention: |
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[Signature Page to Voting Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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DJJ TRUST |
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David Jacofsky, as Trustee of the DJJ Trust |
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Address for Notice: |
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Attention: |
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Email: |
david.jacofsky@hopco.com |
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with a required copy to (which shall
not constitute notice): |
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Attention: |
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[Signature Page to Voting Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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CLEAR WATER AIR LLC |
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By: |
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Name: Steve Reynolds |
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Title: Manager |
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Address for Notice: |
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Attention: |
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with a required copy to (which shall
not constitute notice): |
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Attention: |
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[Signature Page to Voting Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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SAU FAMILY LLC |
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By: |
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Name: Scott Untrecht |
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Title: Manager |
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Address for Notice: |
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Attention: |
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with a required copy to (which shall
not constitute notice): |
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Attention: |
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[Signature Page to Voting Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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SPONSOR |
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REVELSTONE CAPITAL LLC |
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By: |
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Name: Morgan Callagy |
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Title: Managing Member |
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Address for Notice: |
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Attention: |
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In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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LA JOLLA GROUP, INC. |
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[Signature Page to Voting Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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PARENT PARTIES |
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Morgan Callagy |
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[Signature Page to Voting Agreement]
Schedule
A
Schedule
B
| 1. | La Jolla Group, Inc. |
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| 2. | Morgan Callagy |
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| 3. | Daniel Neukomm |
By Electronic Delivery
Dear [Name]:
As you may know, Set Jet, Inc.,
a Nevada corporation (the “Company”), entered into that certain Merger Agreement dated as of July [●], 2023,
by and among the Company, Revelstone Capital Acquisition Corp., a Delaware corporation (“SPAC”), and Revelstone Capital
Merger Sub, Inc., a Delaware corporation (“Merger Sub”) (the “Merger Agreement”), pursuant
to which Merger Sub will merge with and into the Company with the Company surviving the merger and becoming a wholly owned subsidiary
of SPAC. Pursuant to the Merger Agreement, immediately following the Closing, you will be granted Retention Bonus RSUs as described in
this letter agreement (the “Agreement”). Capitalized terms used but not defined in this Agreement will have the respective
meanings ascribed to them in the Merger Agreement.
This Agreement shall be effective
as of [●], 2023, but the grant described herein is contingent upon the Closing and adoption of the EIP by the SPAC’s board
and shareholders pursuant to the Merger Agreement. For the avoidance of doubt, if the Closing does not occur, if the Merger Agreement
is terminated pursuant to its terms, or if the SPAC’s shareholders do not approve the EIP, this Agreement will be void, ab initio.
| 1. | Retention Bonus RSUs. Immediately following the Closing you shall be granted [●] restricted
stock units (the “Retention Bonus RSUs”). The Retention Bonus RSUs shall be granted pursuant to the EIP and will be
subject to the terms and conditions of the EIP and the award agreement that you must execute as a condition of your grant of the Retention
Bonus RSUs in substantially the same form attached as Exhibit A (the “Award Agreement”). |
| 2. | Vesting Event. The Award Agreement shall provide that the Retention Bonus RSUs will vest and become
nonforfeitable if the VWAP of Parent’s Class A Common Stock is above $15.00 for any twenty (20) out of thirty (30) consecutive
Trading Days beginning on the date that is one hundred eighty (180) days after the Closing Date and ending on the date that is the fifth
(5th) anniversary of the Closing Date (the “Vesting Event”). If the Vesting Event is not achieved on or before the
fifth (5th) anniversary of the Closing Date, all Retention Bonus RSUs shall be immediately forfeited and the Award Agreement shall terminate. |
| 3. | Settlement of Retention Bonus RSUs. The Award Agreement shall provide that the Retention Bonus
RSUs that become vested and nonforfeitable, if any, as described in Section 2, above, will be paid in whole unrestricted and fully
transferable shares of Parent Class A Common Stock within 30 days of the Vesting Event (and in no event later than March 15
of the calendar year following the calendar year in which the Vesting Event occurs). |
| 4. | Treatment of Retention Bonus RSUs Upon Termination. The Award Agreement shall provide that in the
event your employment is terminated for Cause (as defined in the EIP or your employment agreement, if applicable) any Retention Bonus
RSUs that have not yet vested shall be immediately forfeited. In all other events of termination your Retention Bonus RSUs will remain
outstanding and eligible to vest and be paid pursuant to this Agreement. |
| 5. | Change of Control. The Award Agreement shall provide that if at any time after the Closing and
prior to or on the fifth (5th) anniversary of the Closing Date, there occurs any transaction resulting in a Change of Control (as defined
in the EIP), then any Retention Bonus RSUs that have not yet vested shall immediately vest and, to the extent permitted by Section 409A
of the Code, shall be paid within 10 days following the consummation of the Change of Control. |
| 6. | Adjustment. Consistent with the EIP, the Retention Bonus RSUs may be equitably adjusted for stock
splits, reverse stock splits, stock dividends, reorganizations, recapitalizations, reclassifications, combinations, exchanges of shares
or other like change or transactions with respect to Parent Class A Common Stock occurring after the Closing. |
| 7. | No Shareholder Rights. Neither this Agreement nor the Award Agreement give you any of the rights
of a shareholder unless and until unrestricted and fully transferable shares of Parent Class A Common Stock are issued to you pursuant
to the Award Agreement. |
| 8. | Section 409A. The Award Agreement will be designed to comply with the short-term deferral
exception from the requirements of Section 409A of the Code and, accordingly, to the maximum extent permitted, this Agreement and
the Award Agreement will be interpreted to comply with, or be exempt from, Section 409A of the Code. The Company may amend this Agreement
as may be necessary to fully comply with, or be exempt from, Section 409A of the Code and all related rules and regulations
in order to preserve the payments and benefits provided hereunder. |
| 9. | No Contract for Continuing Services. This Agreement shall not be construed as creating any contract
for continued services between the Company, SPAC or any of their respective subsidiaries and nothing herein contained will give you the
right to be retained as an employee of the Company, SPAC or any of its subsidiaries. |
| 10. | Governing Law. This Agreement will be construed in accordance with and governed the laws of the
State of Delaware, without regard to any principles of conflict of laws that would require the application of the laws of any other jurisdiction. |
| 11. | Tax Withholding. Consistent with the EIP, the amounts payable to you pursuant to the Award Agreement
shall be subject to reduction for any taxes required by law to be withheld with respect to such payments including, without limitation,
by: (a) withholding shares to which you are entitled pursuant to the Award Agreement in an amount necessary to satisfy applicable
federal, state, local or foreign income and employment tax withholding obligations; (b) tendering previously-owned shares to satisfy
the applicable federal, state, local, or foreign income and employment tax withholding obligations; (c) a broker-assisted “cashless”
transaction; or (d) personal check or other acceptable cash equivalent. |
| 12. | Entire Agreement; Amendment. This Agreement constitutes the entire agreement of the parties hereto
with respect to the grant of Retention Bonus RSUs and supersedes all prior and contemporaneous understandings, discussions, agreements,
representations and warranties, both written and oral between the parties. No amendment hereto will be effective unless it is in writing
and executed by each of the parties hereto. |
| 13. | Counterparts. This Agreement or any amendment hereto may be executed in counterparts, each of which
when so executed and delivered will be an original, but all of which will together constitute one and the same instrument. This Agreement
may be executed and delivered by facsimile or electronic transmission with the same force and effect as if the same were fully executed
and delivered original manual counterpart. |
| 14. | Benefits and Burdens, No Transfers. This Agreement will inure to the benefit of and be binding
upon you, the Company, and SPAC, respective successors, executors, administrators, heirs and permitted assigns. Your rights under this
Agreement may not be assigned or transferred. |
| 15. | Counterparts. This Agreement may be executed in one or more counterparts all of which taken together
will constitute one and the same instrument. |
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT
BLANK]
IN WITNESS WHEREOF, the parties
hereto have executed this Agreement as of the date and year first above written.
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SPAC: |
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REVELSTONE CAPITAL ACQUISITION CORP. |
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Holder Representative: |
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Exhibit A
Form of Award Agreement
(See attached)
SET JET, INC.
OMNIBUS EQUITY INCENTIVE PLAN
NOTICE OF GRANT OF RESTRICTED
STOCK UNITS
This Restricted Stock Unit
Award (this “Award”) consists of this Notice of Grant of Restricted Stock Units (the “Grant Notice”)
and the Restricted Stock Unit Award Agreement immediately following. This Award sets forth the specific terms and conditions governing
Restricted Stock Unit Awards under the Set Jet, Inc. Omnibus Equity Incentive Plan (the “Plan”). All of the terms
of the Plan are incorporated herein by reference. This Award is issued pursuant to the Merger Agreement (as defined in the Plan).
| Name of Grantee: |
[________] |
| Date of Grant: |
[________] |
| Total No. of Restricted Stock Units: |
[________] |
| Grant Number: |
[________] |
| Vesting Schedule: |
100% of the Restricted Stock Units granted
pursuant to this Award will vest as follows:
(1) If and when the VWAP (as defined
in the Merger Agreement) of the Company’s Parent’s Class A Common Stock is above $15.00 for any twenty (20) out of thirty
(30) consecutive Trading Days (as defined in the Merger Agreement) beginning on the date that is one hundred eighty (180) days after
the Closing Date (as defined in the Merger Agreement) and ending on the date that is the fifth (5th) anniversary of the Closing Date
(the “Vesting Event”). If the Vesting Event is not achieved on or before the fifth (5th) anniversary of the Closing Date,
all Restricted Stock Units shall be immediately forfeited and the Award Agreement shall terminate.
(2) If at any time after the Closing (as
defined in the Merger Agreement) and prior to or on the fifth (5th) anniversary of the Closing Date, there occurs any transaction resulting
in a Change of Control, then any Restricted Stock Units granted pursuant to this Award that have not yet vested shall immediately vest
and, to the extent permitted by Section 409A of the Code, shall be paid within 10 days following the consummation of the Change of
Control. |
by
ACCEPTING THIS RESTRICTED STOCK UNIT AGREEMENT (WHETHER THROUGH ELECTRONIC SIGNATURE OR OTHER MEANS), GRANTEE accepts participation in
the plan, acknowledges that he or she has read and understands the provisions of this grant NOTICE and the plan, and agrees that this
grant NOTICE, the award agreement AND THE pLAN shall govern the terms and conditions of thIS AWARD.
IN WITNESS WHEREOF,
the Company has executed this Restricted Stock Unit Agreement, and this Restricted Stock Unit Agreement shall be effective as of the Date
of Grant set forth above.
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SET JET, INC. |
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RESTRICTED STOCK UNIT AWARD AGREEMENT
UNDER THE SET JET, INC. OMNIBUS EQUITY
INCENTIVE PLAN
This Restricted Stock Unit
Award Agreement (this “Agreement”) is between Set Jet, Inc., a Delaware corporation (the “Company”)
and the individual (the “Grantee”) identified in the Notice of Grant of Restricted Stock Units (the “Grant
Notice”) and is effective as of the date of grant referenced in the Grant Notice (the “Date of Grant”). This
Agreement supplements the Grant Notice to which it is attached, and, together, with the Grant Notice, constitutes the “Restricted
Stock Unit Agreement” referenced in the Grant Notice.
RECITALS
A. The
Board of Directors of the Company (the “Board”) has adopted and the shareholders have approved the Set Jet, Inc.
Omnibus Equity Incentive Plan (the “Plan”) to promote the success an enhance the value of the Company by linking the
personal interests of the Plan’s participants to those of the Company’s shareholders by providing such individuals with an
incentive for outstanding performance.
B. The
Compensation Committee of the Board has approved the grant of Restricted Stock Units to Grantee pursuant to Section 9.2 of
the Plan.
C. To
the extent not specifically defined in this Agreement, all capitalized terms used in this Agreement shall have the meaning set forth in
the Plan.
D. In
consideration of the mutual covenants and conditions hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company and Grantee agree as follows:
AGREEMENT
1. Grant
of Restricted Stock Units. Subject to the terms of this Agreement and Section 9.2 of the Plan, the Company grants
to Grantee the aggregate number of Restricted Stock Units specified in the Grant Notice.
2. Vesting
of Restricted Stock Units. Subject to Grantee’s continued employment (or service) with the Company, the Restricted Stock
Units shall vest and become nonforfeitable according to the vesting schedule set forth in the Grant Notice.
3. Payment
of Restricted Stock Units. The Restricted Stock Units that become vested and nonforfeitable pursuant to Section 2
above will be paid in whole unrestricted and fully transferable shares of Stock within 30 days of each vesting date identified in the
Grant Notice, or, with respect to a vesting date that is due to a Change of Control, within 10 days (each, a “Vesting Date”),
and in no event later than March 15 of the calendar year following the calendar year in which such Vesting Date occurs.
4. No
Shareholder Rights. During the restriction period and until the date of payment of Restricted Stock Units pursuant to Section 3,
Grantee will not have any of the rights of a shareholder of the Company with respect to the Restricted Stock Units.
5. Withholding;
Tax Advice. As described in Section 15.3 of the Plan, the Company shall have the right to deduct or withhold, or to
require Grantee to remit to the Company, an amount necessary to satisfy any federal, state or local taxes (including Grantee’s FICA
obligation) as are required by law to be withheld with respect to the Award (the “Withholding Obligations”) including,
without limitation: (i) withholding shares of Stock to which Grantee would otherwise be is entitled pursuant to the Award in an amount
necessary to satisfy the Withholding Obligations; (ii) by causing Grantee to write a personal check or make an equivalent cash payment
to the Company; (iii) by withholding additional amounts from any other compensation that would be otherwise payable to Grantee; (iv) a
broker-assisted “cashless” transaction; or (v) by any other method permitted under Section 15.3 of the Plan.
The Grantee hereby acknowledges that neither the Company nor any of its representatives has provided to the Grantee any tax-related advice
with respect to the matters covered by this Agreement. The Grantee understands and acknowledges that the Grantee is solely responsible
for obtaining his or her own tax advice with respect to the matters covered by this Agreement.
6. No
Right to Continued Employment (or Service). This Agreement shall not be construed to confer upon Grantee any right to continue
employment (or service) with the Company and shall not limit the right of the Company, in its sole and absolute discretion, to terminate
Grantee’s employment (or service) at any time.
7. Administration.
This Agreement shall at all times be subject to the terms and conditions of the Plan and the Plan shall in all respects be administered
by the Committee in accordance with the terms of and as provided in the Plan. The Committee shall have the sole and complete discretion
with respect to all matters reserved to it by the Plan and decisions of the Committee with respect thereto and to this Agreement shall
be final and binding upon Grantee and the Company. In the event of any conflict between the terms and conditions of this Agreement and
the Plan, the provisions of the Plan shall control.
8. Adjustments.
The number of shares of Stock subject to the Restricted Stock Units issued to Grantee pursuant to this Agreement shall be adjusted by
the Committee pursuant to Section 4.4 of the Plan, in its discretion, in the event of a change in the Company’s capital
structure.
9. Copy
of Plan. By accepting this Agreement (whether through electronic signature or other means), Grantee acknowledges receipt of a
copy of the Plan.
10. Governing
Law. This Agreement shall be interpreted and administered under the laws of the State of Delaware.
11. Amendment.
Except as otherwise provided in the Plan, this Agreement may be amended only by a written agreement executed by the Company and Grantee.
The provisions of this Agreement may not be waived or modified unless such waiver or modification is in writing and signed by a representative
of the Committee.
12. Clawback.
Pursuant to Section 12.4 of the Plan, every Award issued pursuant to the Plan is subject to potential forfeiture or “clawback”
to the fullest extent called for by applicable federal or state law or any policy of the Company. By accepting this Award (whether through
electronic signature or other means), Grantee agrees to be bound by, and comply with, the terms of any such forfeiture or “clawback”
provision imposed by applicable federal or state law or prescribed by any policy of the Company.
13. Section 409A
Compliance. The Restricted Stock Units, if any, that become payable pursuant to this Agreement may be considered “nonqualified
deferred compensation” that is subject to the requirements of Section 409A of the Code. The Company intends, but does not and
cannot warrant or guaranty, that the Restricted Stock Units will be paid in compliance with Section 409A of the Code or an applicable
exception. Neither the time nor the schedule of the payment of the Restricted Stock Units may be accelerated or subject to a further deferral
except as permitted pursuant to Section 409A of the Code and the applicable regulations. Payment of the Restricted Stock Units may
be delayed only in accordance with Section 409A of the Code and the applicable regulations. Grantee may not make any election regarding
the time or the form of the payment of the Restricted Stock Units. This Agreement shall be administered in compliance with Section 409A
of the Code or an exception thereto and each provision shall be interpreted, to the extent possible, to comply with Section 409A
of the Code and the applicable regulations.
14. Securities
Laws Compliance. The Company shall not be required to deliver any of the Stock subject to this Award if, in the opinion of counsel
for the Company, such issuance would violate the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended,
or any other applicable federal or state securities laws or regulations.
15. Electronic
Signature; Acceptance. Grantee acknowledges that Grantee’s electronic signature has the same legal force and effect as a
written or manual signature. Grantee’s electronic acceptance is required and this Award will be cancelled if Grantee fails to comply
with the Company’s acceptance requirement within [____ months] of the Date of Grant.
MANY OF THE PROVISION OF THIS AWARD AGREEMENT
ARE SUMMARIES OF SIMILAR PERTINENT PROVISIONS OF THE PLAN. TO THE EXTENT THAT THIS AGREEMENT IS SILENT ON AN ISSUE OR THERE IS A CONFLICT
BETWEEN THE PLAN AND THIS AGREEMENT, THE PLAN PROVISIONS SHALL CONTROL.
EMPLOYMENT AGREEMENT
This employment agreement
(the “Agreement”) is entered into by and between [NAME] (“you” or “your”) and Set Jet, Inc.,
a Nevada corporation, (the “Company”). This Agreement is made as of [DATE] and has an effective date of the closing of the
transactions contemplated by that certain Merger Agreement, by and among Set Jet, Inc., a Nevada corporation, Revelstone Capital
Acquisition Corp., a Delaware corporation (“Revelstone”), and certain other parties, dated as of [date], as amended from time
to time (the “Effective Date”).
In consideration of the mutual
covenants and promises made in this Agreement, you and the Company agree as follows:
1. Position
and Responsibilities. As of the Effective Date, you will commence service as a full-time employee of the Company as the Company’s
[JOB TITLE]. As [JOB TITLE], you will report directly to [the Company’s Chief Executive Officer (“CEO”)][the Company’s
Board of Directors]. You will have the duties, responsibilities and authority that are customarily associated with such position and such
other senior management duties as may reasonably be assigned by the [CEO][Board of Directors], in each case, in accordance with Company
policy as set forth from time to time by the Company’s Board of Directors (the “Board”) and subject to the terms hereof.
At the request of the Company, you will also serve as an officer and/or member of the board of directors of any Company affiliate, subsidiary
and or institution, without additional compensation. You will devote substantially all of your business time and commit your best efforts
to the Company’s business. Nothing herein will preclude you from: (a) engaging in charitable activities and community affairs;
and (b) managing your personal investments and affairs; provided, however, that the activities set out in clauses (a) and (b) will
be limited by you so as not to materially interfere, individually or in the aggregate, with the performance of your duties and responsibilities
hereunder. The Company hereby acknowledges your activities with and ownership in the entities identified in Exhibit A and
consents to such activity and ownership for so long as such entities continue to be a non-competing business with the Company.
2. Term.
Your employment with the Company is at-will and either you or the Company may terminate your employment at any time and for any reason,
with or without Cause (as defined below), in each case subject to the terms and provisions of this Agreement. Unless terminated earlier,
this Agreement will extend through the [________] anniversary of the Effective Date (“Expiration Date”); provided, however,
on the [__________] anniversary of the Effective Date (and on each subsequent anniversary thereafter) the Expiration Date will automatically
be extended by an additional year unless either party has provided written notice to the other party at least 60 before the applicable
Expiration Date that such party will not agree to so extend the Agreement. The terms of Sections 8 through 17 will survive any termination
or expiration of this Agreement or of your employment.
3. Salary,
Bonus, Equity Incentives. For avoidance of doubt, the Board may delegate its authority and responsibilities under this Section 3
to a committee or sub-committee of members of the Board and all references in this Agreement to the “Board” shall be, as applicable,
to the Board or committee or sub-committee thereof of the Board (e.g., the Compensation Committee of the Board).
(a) Base
Salary. During your employment and while this Agreement is in effect, you will be paid an annual base salary of $[________] (the “Base
Salary”), payable in the time and manner that the Company customarily pays its employees provided that you will receive pro-rata
payments of Base Salary on at least a monthly basis. Your Base Salary will also be reviewed periodically by the Compensation Committee
of the Board and may be adjusted by the Compensation Committee in its discretion.
(b) Bonuses.
During your employment as and while this Agreement is in effect, you will be eligible to participate in any cash bonus programs as set
forth by the Compensation Committee of the Board. In addition, during each Company fiscal year you will be eligible to earn an annual
cash bonus based on performance objectives reasonably established by the Compensation Committee. Your annual target cash bonus amount
will be equal to [____]. The actual amount of the annual bonus paid to you, if any, will be determined by the Compensation Committee in
its sole discretion and may be more or less than the target amount. Any such bonus will be paid to you no later than March 15 of
the year following the year to which the bonus relates. Subject to Section 7(b)(iii), you must be employed by the Company through
the date the annual bonus is paid in order to receive payment.
(c) Stock
Options and Compensatory Equity. During your employment as and while this Agreement is in effect, you will be eligible to receive
grants of stock options, restricted stock units, performance shares, and other forms of equity compensation awards (time and/or performance
based, collectively the “Equity Awards”). Such Equity Awards, if any, will be made in the sole discretion of the Compensation
Committee of the Board or sub-committee thereof and will be subject to the terms and conditions specified by the Compensation Committee
or sub-committee thereof, the Company’s stock plan, the award agreement that you must execute as a condition of any grant, the Clawback
Policy (as defined in Section 13(d) and the Company’s insider trading policy. If required by applicable law with respect
to transactions involving Company equity securities, you agree that you will use your best efforts to comply with any duty that you may
have to: (i) timely report any such transactions; and (ii) to refrain from engaging in certain transactions from time to time.
4. Expense
Reimbursement. Subject to Section 11 below, during your employment and while this Agreement is in effect, you will be reimbursed
for all reasonable business expenses (including, but without limitation, travel expenses) upon the properly completed submission of requisite
forms and receipts to the Company in accordance with the Company’s then existing expense reimbursement policy.
5. Change
of Control.
(a) Definition.
For purposes of this Agreement, a “Change of Control” will have the meaning set forth in the then applicable Company stock
plan (which, for the avoidance of doubt, as of the Effective Date, is the Set Jet, Inc. Omnibus Equity Incentive Plan, as such Plan
may be amended from time to time).
(b) Limitation
on Payments. In the event that it is determined that any payment or distribution of any type to or for your benefit made by the Company,
by any of its affiliates, by any person who acquires ownership or effective control or ownership of a substantial portion of the Company’s
assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or by any affiliate
of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Total
Payments”)), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect
to such excise tax (such excise tax, together with any such interest or penalties, are collectively referred to as the “Excise Tax”),
then such payments or distributions or benefits will be payable either:
(i) in
full; or
(ii) as
to such lesser amount which would result in no portion of such payments or distributions or benefits being subject to the Excise Tax.
You will receive the greater, on an after-tax
basis, of (i) or (ii) above. In the event that clause (ii) above applies, and a reduction is required to be applied to
the Total Payments, the Total Payments will be reduced by the Company in the following order: (1) payments and benefits due under
Sections 7(b)(i) and (ii) will be reduced (if necessary, to zero) in such order with amounts that are payable first reduced
first; provided, however that in all events such payments which are not subject to Section 409A of the Code will be reduced first;
(2) payments and benefits due in respect of any options to purchase shares of common stock of the Company will be reduced second;
(3) payments and benefits due in respect of any fully valued Equity Awards (i.e., restricted stock or restricted stock units) for
which an election under Section 83(b) of the Code has not been made will be reduced third and (4) payments and benefits
due in respect of any fully valued Equity Awards (i.e., restricted stock or restricted stock units) for which an election under Section 83(b) of
the Code has been made will be reduced fourth. Notwithstanding anything to the contrary herein, in all events, you will have no right,
power or discretion to determine the reduction of payments and/or benefits hereunder and any such reduction will be structured in a manner
intended to comply with Section 409A of the Code.
Unless you and the Company agree otherwise in
writing, any determination required under this Section 5(b) will be made in writing by a qualified independent accountant or
compensation consulting firm selected by the Company (the “Accountant”) whose determination will be conclusive and binding.
You and the Company will furnish the Accountant such documentation and documents as the Accountant may reasonably request in order to
make a determination. The Company will bear all costs that the Accountant may reasonably incur in connection with performing any calculations
contemplated by this Section 5(b).
6. Employee
Benefit Programs. During your employment with the Company, you will be entitled to participate, on the same terms as generally
provided to senior executives, in all Company employee benefit plans and programs at the time or thereafter made available to Company
senior executive officers including, without limitation, any savings or profit sharing plans, stock option incentive plans, group life
insurance, accidental death and dismemberment insurance, hospitalization, surgical, major medical and dental coverage, vacation, sick
leave (including salary continuation arrangements), long-term disability, holidays, and other employee benefit programs sponsored by the
Company. The Company may amend, modify or terminate these benefits at any time and for any reason.
7. Consequences
of Termination of Employment. Unless the Company requests otherwise in writing, upon termination of your employment for any reason,
you will be deemed to have immediately resigned from all positions as an officer (and/or director, if applicable) with the Company (and
its affiliates and or institutions) as of your last day of employment (the “Termination Date”). Upon termination of your employment
for any reason, you will receive payment or benefits from the Company covering the following: (i) all unpaid salary and unpaid vacation
accrued through the Termination Date, (ii) any payments/vested benefits to which you are entitled under the express terms of any
applicable Company employee benefit plan, and (iii) any unreimbursed valid business expenses for which you have submitted properly
documented reimbursement requests (collectively, (i) through (iii) are the “Accrued Pay”). You may also be eligible
for other post-employment payments and benefits as provided in this Agreement.
(a) For
Cause. For purposes of this Agreement, your employment may be terminated by the Company for “Cause” as a result of the
occurrence of one or more of the following:
(i) your
conviction of, or a plea of guilty or nolo contendere to, a felony or other crime (except for misdemeanors which are not materially injurious
to the business or reputation of the Company or a Company affiliate);
(ii) your
refusal to perform in any material respect your duties and responsibilities for the Company or a Company affiliate or your failure to
comply in any material respect with the terms of this Agreement and the Restrictive Covenants Agreement (as defined in Section 8)
and the policies and procedures of the Company or a Company affiliate at which you serve as an officer and/or director or your breach
of fiduciary duty or any conduct by you that is grossly negligent;
(iii) fraud
or other illegal conduct in your performance of duties for the Company or a Company affiliate; or
(iv) any
conduct by you that is materially injurious to the Company or a Company affiliate or materially injurious to the business reputation of
the Company or a Company affiliate or any conduct that causes the Company or any affiliate public disgrace or disrepute.
Prior to your termination for Cause, you will
be provided with written notice from the Company describing in detail the conduct forming the basis for the alleged Cause and to the extent
curable (which will be determined by the Board in its sole discretion), a reasonable opportunity (of not less than 30 days or more than
45 days) to cure such conduct before the Company may terminate you for Cause. Any termination for “Cause” will not limit any
other right or remedy the Company may have under this Agreement or otherwise. You will continue to receive the compensation and benefits
provided by this Agreement during the period after you receive the written notice of the Company’s intention to terminate your employment
for Cause until such termination becomes effective.
In the event your employment is terminated by
the Company for Cause you will be entitled only to your Accrued Pay and you will be entitled to no other compensation from the Company.
In addition, you may be required to repay to the Company certain previously paid compensation in accordance with any Clawback Policy (as
defined below) then in effect.
For avoidance of doubt, terminations of employment
due to death or Disability, which are addressed in Section 7(d) below, are not terminations for Cause.
(b) Without
Cause or for Good Reason. The Company may terminate your employment without Cause at any time and for any reason upon providing you
with notice of such termination. Such a termination without Cause shall be deemed a “Qualifying Termination.” In light of
the benefits that you will then be eligible for, there is no required advance notice period. You may resign from your employment for Good
Reason, as defined below in Section 7(b)(v), upon providing the Company with notice as described below. Such a resignation shall
also be deemed a “Qualifying Termination.” If your employment is terminated due to a Qualifying Termination, then, subject
to Sections 11 and 13 hereof, you will be eligible to receive the following subject to your timely compliance with Section 7(e) and
further provided that no payments for such Qualifying Termination will be made until on or after the date of a “separation from
service” within the meaning of Code Section 409A:
(i) The
Company will provide you with cash payments equal in the aggregate to [________] of Base Salary. The cash payments provided by this subpart
(i) will be paid to you in substantially equal installments payable bi-weekly over the [___] month period following your Termination
Date, however, the first payment will be made within 15 days following the effective (and irrevocable) date of the Release (as defined
below). This first payment will cover the period of time from the Termination Date through the end of the bi-weekly period immediately
preceding such first payment;
(ii) The
Company will reimburse you for a portion of the premiums you pay for group medical insurance while you are covered under a Company-sponsored
group medical insurance plan pursuant to Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or any similar
state law (“COBRA”). Such reimbursement will be equal to the subsidy provided by the Company to active Company employees who
participate in the same group medical insurance plan (“Reimbursed Subsidy”). You shall pay your share of any COBRA premiums
with after-tax income and the Reimbursed Subsidy will be taxable to you for federal and state tax purposes. The Reimbursed Subsidy will
be provided concurrently with COBRA continuation coverage, on a monthly basis for a period of [___] months so long as you elect continuation
coverage within the time period prescribed by COBRA, provided, however, if the Company determines that it cannot provide the foregoing
reimbursement without violating, or being subject to an excise tax under, applicable law (including, without limitation, Section 2716
of the Public Health Service Act or the Employee Retirement Income Security Act of 1974, each as amended), then payment of the Reimbursed
Subsidy shall immediately cease. In all cases, the reimbursements provided in this subpart will immediately terminate if you are offered
group medical insurance coverage in connection with your employment by another employer;
(iii) You
will continue to be eligible to receive the bonus described in Section 3(b) for the completed fiscal year immediately preceding
your termination of employment to the extent the bonus has not yet been paid, in such amount, if any, that the Board determines under
Section 3(b);
(iv) [If
the Qualifying Termination occurs during the 24 month period after a Change of Control, then, subject to Section 5(b), all of your
outstanding and unvested Equity Awards that are to vest solely on continued service to the Company (“Time-Based Equity Awards”)
will become immediately fully vested as of your Termination Date]; and
(v) For
purposes of this Agreement, you may resign your employment from the Company for “Good Reason” within 30 days after the date
that any one of the following events described in subparts (1) through (3) (any one of which will constitute “Good Reason”)
has first occurred without your written consent. Your resignation for Good Reason will only be effective if the Company has not cured
or remedied the Good Reason event within 30 days after its receipt of your written notice (such notice will describe in detail the basis
and underlying facts supporting your belief that a Good Reason event has occurred). Such notice of your intention to resign for Good Reason
must be provided to the Company within 30 days of the initial existence of a Good Reason event. Failure to timely provide such written
notice to the Company or failure to timely resign your employment for Good Reason means that you will be deemed to have consented to and
waived the Good Reason event. If the Company does timely cure or remedy the Good Reason event, then you may either resign your employment
without Good Reason or you may continue to remain employed subject to the terms of this Agreement.
| (1) | You have incurred a material diminution in your responsibilities, duties or authority; |
| (2) | You have incurred a material diminution in your Base Salary other than as part of a reduction in the salaries
of the other members of the senior executive officer team; or |
| (3) | The Company has materially breached a material provision of this Agreement. |
(c) For
avoidance of doubt, this Section 7(b) does not apply to terminations of employment due to death or Disability which are addressed
in Section 7(d).
(d) Voluntary
Termination. In the event you voluntarily terminate your employment with the Company without Good Reason, you will be entitled to
receive only your Accrued Pay. You will be entitled to no other compensation from the Company. You agree to provide the Company with at
least 30 days advance written notice of your intention to resign without Good Reason. For avoidance of doubt, this Section 7(c) does
not apply to terminations of employment due to death or Disability which are addressed in Section 7(d).
(e) Death
or Disability. In the event your employment with the Company is terminated as a result of your death or Disability, then: (i) your
spouse or estate will be entitled to receive your Accrued Pay, and (ii) your spouse or estate will be entitled to receive a lump
sum cash payment equal to [________]of Base Salary, with such amount paid to your spouse or estate within 60 days following the date of
your termination of employment.
For purposes of this Agreement,
“Disability” is defined to occur when you are unable to engage in any substantial gainful activity (without reasonable accommodation)
by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.
(f) Release
of Claims. As a condition to receiving (and continuing to receive) the payments and benefits provided in Section 7(b) or
7(d), you (or your spouse or estate) must (i) within not later than 60 days after your Termination Date (the “Release Deadline”),
execute (and not revoke) and deliver to the Company a Release Of All Claims And Covenant Not To Sue Agreement (the “Release”)
in a form to be prepared by the Company at the time of your separation from employment; and (ii) remain in full compliance with such
Release. The Company will have the obligation to prepare and execute the Release and tender the Release to you within seven (7) days
of your Termination Date. None of the payments and benefits provided in Section 7(b) or 7(d) will be paid or provided until
the Release is effective and irrevocable and if the Release does not become effective and irrevocable by the Release Deadline, you will
forfeit all rights to the severance payments and benefits described in Section 7(b) or 7(d) of this Agreement. If the Release
is effective and irrevocable on the Release Deadline, then, except as required by the following sentence and/or Section 11 below,
any payments that would have been made to you during the 60 day period immediately following your separation from service will be paid
to you on the first Company payroll period following the Release Deadline and any remaining payments will be made as provided in this
Agreement. Additionally, and notwithstanding anything herein to the contrary, in the event that the time period within which you must
return and not revoke the Release straddles two (2) calendar years, in all events any payments under Section 7(b) will
be made (or commence, as applicable) in the second such calendar year.
8. Restrictive
Covenants Agreement. Your employment is contingent upon you signing the Company’s standard form of restrictive covenants
agreement (“Restrictive Covenants Agreement”).
9. Assignability;
Binding Nature. Commencing on the Effective Date, this Agreement will be binding upon you and the Company and your respective
successors, heirs, and assigns. This Agreement may not be assigned by you except that your rights to compensation and benefits hereunder,
subject to the limitations of this Agreement, may be transferred by will or operation of law. No rights or obligations of the Company
under this Agreement may be assigned or transferred except in the event of a merger or consolidation in which the Company is not the continuing
entity, or the sale or liquidation of all or substantially all of the assets of the Company provided that the assignee or transferee is
the successor to all or substantially all of the assets of the Company and assumes the Company’s obligations under this Agreement
contractually or as a matter of law. The Company will require any such purchaser, successor or assignee to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such purchase,
succession or assignment had taken place. Your rights and obligations under this Agreement will not be transferable by you by assignment
or otherwise provided, however, that if you die, all amounts then payable to you hereunder will be paid in accordance with the terms of
this Agreement to your devisee, legatee or other designee or, if there be no such designee, to your estate.
10. Governing
Law; Arbitration. This Agreement will be deemed a contract made under, and for all purposes will be construed in accordance with,
the laws of Arizona. You and the Company agree that any controversy or claim relating to this Agreement or any breach thereof, and any
claims you may have arising from or relating to your employment (or separation from employment) with the Company or that the Company may
have against you arising from or relating to your employment with the Company, of any nature whatsoever, other than for workers’
compensation, unemployment or disability benefits, will be settled solely and finally by binding arbitration in Maricopa County, Arizona
before a single neutral arbitrator in accordance with the Employment Arbitration Rules and Mediation Procedures of the American Arbitration
Association (“AAA”) then in effect in the State of Arizona, which can be found at www.adr.org, and for which you can request
a copy from the Company. This mutual agreement to arbitrate shall be governed for all legal purposes by the Federal Arbitration Act. You
agree that any claim brought pursuant to this Agreement shall be brought in your individual capacity only, and not as a class, collective,
or representative action and that the arbitrator has no power or authority to preside over a class, collective or representative action.
Judgment upon the award, if any, rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that this
Section 10 will not be construed to eliminate or reduce any right the Company or you may otherwise have to obtain a temporary restraining
order or a preliminary or permanent injunction from a court of competent jurisdiction to enforce any of the covenants contained in this
Agreement before the matter can be heard in arbitration. The arbitrator shall issue written findings of fact and conclusions of law. You
and the Company understand that by agreeing to binding arbitration you and the Company are giving up your rights to trial by jury of any
claim either may have against each other. The arbitrator shall have the authority to award either party their reasonable and substantiated
legal fees and costs incurred with respect to any claims upon which they prevail. You agree that nothing in this Agreement prevents you
from making a report to or filing a charge with a federal, state, or local government agency and that nothing in this Agreement precludes
your participation in an investigation by a government agency. However, after exhaustion of any such administrative procedures, any remaining
issue or dispute between you and the Company shall be resolved exclusively pursuant to the terms of this Section 10.
11. Taxes.
Notwithstanding anything herein to the contrary, all payments made by the Company hereunder to you or your estate or beneficiaries will
be subject to tax withholding pursuant to any applicable laws or regulations. This Agreement is intended to be exempt from or comply with
the requirements of section 409A of the Code and each provisions of this Agreement shall be interpreted, to the extent possible, to comply
with Section 409A or an exception thereto. Nevertheless, the Company does not and cannot guarantee any particular tax effect or treatment
of the amounts due under this Agreement. Accordingly, you remain solely liable for any adverse tax consequences imposed on you by Section 409A
of the Code. In the event this Agreement or any benefit paid to you hereunder is deemed to be subject to Section 409A of the Code,
you consent to the Company adopting such conforming amendments or taking such actions as the Company deems necessary, in its reasonable
discretion, to comply with Code Section 409A and avoid the imposition of taxes under Code Section 409A. Notwithstanding any
provision in the Agreement to the contrary, if upon your “separation from service” within the meaning of Code Section 409A,
you are then a “specified employee” within the meaning of Code Section 409A, then to the extent necessary to comply with
Code Section 409A and avoid the imposition of taxes under Code Section 409A, the Company will defer payment of “nonqualified
deferred compensation” subject to Code Section 409A payable as a result of and within six months following such “separation
from service” under this Agreement until the earlier of (a) the first business day of the seventh month following your “separation
from service;” or (b) 10 days after the Company receives valid confirmation of your death. Any such delayed payments will be
made without interest. Additionally, the reimbursement of expenses or in-kind benefits provided pursuant to this Agreement will be subject
to the following conditions: (i) the expenses eligible for reimbursement or in-kind benefits in one taxable year will not affect
the expenses eligible for reimbursement or in-kind benefits in any other taxable year; (ii) the reimbursement of eligible expenses
or in-kind benefits will be made promptly, subject to the Company’s applicable policies, but in no event later than the end of the
year after the year in which such expense was incurred; and (iii) the right to reimbursement or in-kind benefits will not be subject
to liquidation or exchange for another benefit. Under no circumstances may the time or schedule of any payment made or benefit provided
pursuant to the Plan or any Agreement be accelerated or subject to further deferral except as otherwise permitted or required pursuant
to Section 409A of the Code and you do not have the right to make any election regarding the time or form of any payment due under
this Agreement.
12. Entire
Agreement. Except as otherwise specifically provided in this Agreement, this Agreement contains all the legally binding understandings
and agreements between you and the Company pertaining to the subject matter of this Agreement and supersedes all such agreements, whether
oral or in writing, previously entered into between the parties.
13. Covenants.
(a) As
a condition of this Agreement and to your receipt of any post-employment benefits, you agree that you will fully and timely comply with
all of the covenants set forth in this Section 13(a) (which will survive your termination of employment and termination or expiration
of this Agreement):
(i) You
will fully comply with all obligations under the Restrictive Covenants Agreement and further agree that the provisions of the Restrictive
Covenants Agreement will survive any termination or expiration of this Agreement or termination of your employment or any subsequent service
relationship with the Company;
(ii) Within
five days of the Termination Date, you will return to the Company all Company confidential information including, but not limited to,
intellectual property, etc. and you will not retain any copies, facsimiles or summaries of any Company proprietary information;
(iii) You
will not at any time during the period of your employment with the Company and during any period following your termination of employment,
make (or direct anyone to make) any disparaging statements (oral or written) about the Company, or any of its affiliated entities, officers,
directors, employees, stockholders, representatives or agents, or any of the Company’s products or services or work-in-progress,
that are harmful to their businesses, business reputations or personal reputations, provided, that, nothing in this Section is intended
to prohibit or restrain you in any manner from making disclosures that are protected under the whistleblower provisions of federal or
state law or regulation or under other applicable law or from discussing or disclosing information about unlawful acts in the workplace,
such as harassment or discrimination or any other conduct that you have reason to believe is unlawful or intended to interfere with any
employee rights under the National Labor Relations Act, including rights to engage in protected concerted activity;
(iv) You
agree that, upon the Company’s request and without any payment therefore, you will reasonably cooperate with the Company (and be
available as necessary but such cooperation will not interfere with new employment) after the Termination Date in connection with any
matters involving events that occurred during your period of employment with the Company including, without limitation, internal investigations
and any regulatory or judicial investigation or proceeding or dispute with a third party.
(b) You
also agree that you will fully and timely comply with all of the covenants set forth in this Section 13(b) (which will survive
your termination of employment and termination or expiration of this Agreement):
(i) You
will fully pay off any outstanding amounts owed to the Company no later than their applicable due date or within 30 days of your Termination
Date (if no other due date has been previously established);
(ii) Within
five days of the Termination Date, you will return to the Company all Company property including, but not limited to, computers, cell
phones, pagers, keys, business cards, etc.;
(iii) You
will submit to the Company all business, commercial and investment opportunities, and all offers presented to you or of which you become
aware at any time during your employment, which relate to the business of the Company;
(iv) Within
30 days of the Termination Date, you will submit any outstanding expense reports to the Company;
(v) As
of the Termination Date, you will no longer represent that you are an officer, director or employee of the Company and you will immediately
discontinue using your Company mailing address, telephone, facsimile machines, voice mail and e-mail; and
(vi) You
will provide written notice to the Company within three business days after the date that you have agreed to accept new full or part time
employment or agreed to provide consulting or other services to another entity or venture during the period during which you are receiving
severance benefits under Section 7(b).
(c) You
acknowledge that (i) upon a violation of any of the covenants contained in Section 13 of this Agreement or (ii) if the
Company is terminating your employment for Cause as provided in Section 7(a), the Company would as a result sustain irreparable harm,
and, therefore, you agree that in addition to any other remedies which the Company may have, the Company will be entitled to equitable
relief from a court of competent jurisdiction including specific performance and injunctions restraining you from committing or continuing
any such violation; and
(d) The
compensation and benefits provided pursuant to this Agreement may be subject to the Company’s compensation recoupment policy or
policies (and related Company practices) that may be adopted by the Company and in effect from time-to-time, including, but not limited
to, any policy or policies that may be adopted in response to applicable law (each, a “Clawback Policy”). By signing this
Agreement you agree to fully cooperate with the Company in assuring compliance with such policies and the provisions of applicable law,
including, but not limited to, promptly returning any compensation subject to recovery by the Company pursuant to such Clawback Policies
and applicable law.
14. Offset.
Any severance or other payments or benefits made to you under this Agreement may be reduced, in the Company’s discretion, by any
amounts you owe to the Company or as will be needed to satisfy any future co-payments you would need to make for continuing post-termination
benefits, provided however that any such offsets do not violate Code Section 409A or any other applicable law.
15. Notice.
Any notice that the Company is required to or may desire to give you will be given by personal delivery, recognized overnight courier
service, email, telecopy or registered or certified mail, return receipt requested, addressed to you at your address of record with the
Company, or at such other place as you may from time to time designate in writing. Any notice that you are required or may desire to give
to the Company hereunder will be given by personal delivery, recognized overnight courier service, email, telecopy or by registered or
certified mail, return receipt requested, addressed to the Company’s Chief Executive Officer at its principal office, or at such
other office as the Company may from time to time designate in writing. The date of actual delivery of any notice under this Section 15
will be deemed to be the date of delivery thereof.
16. Waiver;
Severability. No provision of this Agreement may be amended or waived unless such amendment or waiver is agreed to by you and
the Company in writing. No waiver by you or the Company of the breach of any condition or provision of this Agreement will be deemed a
waiver of a similar or dissimilar provision or condition at the same or any prior or subsequent time. Except as expressly provided herein
to the contrary, failure or delay on the part of either party hereto to enforce any right, power, or privilege hereunder will not be deemed
to constitute a waiver thereof. In the event any portion of this Agreement is determined to be invalid or unenforceable for any reason,
the remaining portions will be unaffected thereby and will remain in full force and effect to the fullest extent permitted by law.
17. Voluntary
Agreement. You acknowledge that you have been advised to review this Agreement with your own legal counsel and other advisors
of your choosing and that prior to entering into this Agreement, you have had the opportunity to review this Agreement with your attorney
and other advisors and have not asked (or relied upon) the Company or its counsel to represent you or your counsel in this matter. You
further represent that you have carefully read and understand the scope and effect of the provisions of this Agreement and that you are
fully aware of the legal and binding effect of this Agreement. This Agreement is executed voluntarily by you and without any duress or
undue influence on the part or behalf of the Company.
[Signature Page Immediately Follows]
Please acknowledge your acceptance
and understanding of this Agreement by signing and returning it to the undersigned. A copy of this signed Agreement will be sent to you
for your records.
ACKNOWLEDGED AND AGREED:
| SET JET, INC. |
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EXHIBIT A
| · | [Executive and Set Jet to complete list] |
FORM OF
LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this
“Agreement”) is dated as of July [●], 2023, by and between the undersigned stockholder (the “Holder”)
and Revelstone Capital Acquisition Corp., a Delaware corporation (the “Parent”).
A. Contemporaneously
with entering into this Agreement, Parent, Revelstone Capital Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary
of Parent, Set Jet, Inc., a Nevada corporation (the “Company”), and Tom Smith, as the Securityholder Representative,
have entered into a Merger Agreement (as amended from time to time, the “Merger Agreement”).
B. Capitalized
terms used, but not otherwise defined herein, shall have the meanings ascribed to such terms in the Merger Agreement.
C. Pursuant
to the Merger Agreement, Parent will become the 100% stockholder of the Company.
D. The
Holder is the record and/or beneficial owner of certain shares of Company Common Stock, which will be exchanged for shares of Parent Common
Stock pursuant to the Merger Agreement.
E. As
a condition of, and as a material inducement for Parent and the Company to enter into and consummate the transactions contemplated by
the Merger Agreement, the Holder has agreed to execute and deliver this Agreement, which shall be effective as of the Closing Date of
the Merger.
NOW, THEREFORE, for and in
consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties, intending to be legally bound, agree as follows:
AGREEMENT
1. Lock-up.
(a) Subject
to Section 1(b) below, during the Lock-up Period, the Holder agrees that he, she or it will not offer, sell, contract
to sell, pledge or otherwise dispose of, directly or indirectly, any of the Lock-up Shares (as defined below), enter into a transaction
that would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Lock-up Shares or otherwise, publicly disclose the intention to make any offer, sale, pledge or disposition,
or to enter into any transaction, swap, hedge or other arrangement, or engage in any Short Sales (as defined below) with respect to the
Lock-up Shares.
(b) In
furtherance of the foregoing, during the Lock-up Period, Parent will (i) place a stop order on all the Lock-up Shares, including
those which may be covered by a registration statement, and (ii) notify Parent’s transfer agent in writing of the stop order
and the restrictions on the Lock-up Shares under this Agreement and direct Parent’s transfer agent not to process any attempts by
the Holder to resell or transfer any Lock-up Shares, except in compliance with this Agreement.
(c) For
purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200
of Regulation SHO under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and all types of direct
and indirect stock pledges, forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return
basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
(d) The
term “Lock-up Period” means the date that is six (6) months after the Closing Date (as defined in the Merger Agreement).
2. Beneficial
Ownership. The Holder hereby represents and warrants that it does not beneficially own, directly or through its nominees (as determined
in accordance with Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder), any shares
of Parent Common Stock, or any economic interest in or derivative of such shares, other than those shares of Parent Common Stock issued
pursuant to the Merger Agreement. For purposes of this Agreement, the Merger Consideration Shares beneficially owned by the Holder, together
with any other shares of Parent Common Stock, and including any securities convertible into, or exchangeable for, or representing the
rights to receive Parent Common Stock, if any, acquired during the Lock-up Period are collectively referred to as the “Lock-up
Shares,” provided, however, that such Lock-up Shares shall not include shares of Parent Common Stock acquired
by such Holder in open market transactions during the Lock-up Period.
Notwithstanding the foregoing,
and subject to the conditions below, the undersigned may transfer Lock-up Shares in connection with (a) transfers or distributions
to the Holder’s direct or indirect affiliates (within the meaning of Rule 405 under the Securities Act of 1933, as amended
(the “Securities Act”)) or to the estates of any of the foregoing; (b) transfers by bona fide gift to a member
of the Holder’s immediate family or to a trust, the beneficiary of which is the Holder or a member of the Holder’s immediate
family for estate planning purposes; (c) by virtue of the laws of descent and distribution upon death of the Holder; (d) pursuant
to a qualified domestic relations order; (e) transfers to Parent’s officers, directors or their affiliates; (f) transfers
pursuant to a bona fide third-party tender offer, merger, stock sale, recapitalization, consolidation or other transaction involving a
change of control of Parent; provided, however, that in the event that such tender offer, merger, recapitalization, consolidation
or other such transaction is not completed, the Lock-up Shares subject to this Agreement shall remain subject to this Agreement; (g) the
establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act; provided, however, that
such plan does not provide for the transfer of Lock-up Shares during the Lock-up Period; (h) transfers to satisfy tax withholding
obligations in connection with the exercise of options to purchase shares of Parent Common Stock or the vesting of stock-based awards;
and (i) transfers in payment on a “net exercise” or “cashless” basis of the exercise or purchase price with
respect to the exercise of options to purchase shares of Parent Common Stock; provided, however, that, in the case of any
transfer pursuant to the foregoing (a) through (e) clauses, it shall be a condition to any such transfer that (i) the transferee/donee
agrees in writing (a copy of which shall be provided by the Holder to the parties hereto and to Continental Stock and Transfer Company),
to be bound by the terms of this Agreement (including, without limitation, the restrictions set forth in the preceding sentence) to the
same extent as if the transferee/donee were a party hereto; and (ii) each party (donor, donee, transferor or transferee) shall not
be required by law (including without limitation the disclosure requirements of the Securities Act and the Exchange Act) to make, and
shall agree to not voluntarily make, any filing or public announcement of the transfer or disposition prior to the expiration of the Lock-up
Period. The Holder hereby covenants to Parent that the Holder will give notice to Parent of any transfer of Lock-up Shares pursuant to
this Section 2 of the Agreement, with such notice given in accordance with Section 5 of this Agreement.
3. Representations
and Warranties. Each of the parties hereto, by their respective execution and delivery of this Agreement, hereby represents and warrants
to the other that (a) such party has the full right, capacity and authority to enter into, deliver and perform its respective obligations
under this Agreement, (b) this Agreement has been duly executed and delivered by such party and is a binding and enforceable obligation
of such party and, enforceable against such party in accordance with the terms of this Agreement, and (c) the execution, delivery
and performance of such party’s obligations under this Agreement will not conflict with or breach the terms of any other agreement,
contract, commitment or understanding to which such party is a party or to which the assets or securities of such party are bound. The
Holder has independently evaluated the merits of his/her/its decision to enter into and deliver this Agreement, and such Holder confirms
that he/she/it has not relied on the advice of Company, Company’s legal counsel, or any other person.
4. No
Additional Fees/Payment. Other than the consideration specifically referenced herein, the parties hereto agree that no fee, payment
or additional consideration in any form has been or will be paid to the Holder in connection with this Agreement.
5. Notices.
Any notices required or permitted to be sent hereunder shall be sent in writing, addressed as specified below, and shall be deemed given:
(a) if by hand or recognized courier service, by 4:00PM on a Business Day, addressee’s day and time, on the date of delivery,
and otherwise on the first Business Day after such delivery; (b) if by email, on the date that transmission is confirmed electronically,
if by 4:00PM on a Business Day, addressee’s day and time, and otherwise on the first Business Day after the date of such confirmation;
or (c) five days after mailing by certified or registered mail, return receipt requested. Notices shall be addressed to the respective
parties as follows (excluding telephone numbers, which are for convenience only), or to such other address as a party shall specify to
the others in accordance with these notice provisions:
(a) If
to Company, to:
Set Jet, Inc.
15011 North 75th Street
Scottsdale, Arizona 85260
Attn: Tom Smith, CEO
E-mail: tom@setjet.com
with a required copy (which shall not constitute notice)
to:
Snell & Wilmer LLP
One East Washington Street
Suite 2700
Phoenix, Arizona 85004
Attn: Dan Mahoney
E-mail: dmahoney@swlaw.com
and
Snell & Wilmer LLP
350 S Grand Avenue
Suite 3100
Los Angeles, CA 90071
Attn: Joshua Schneiderman
E-mail: jschneiderman@swlaw.com
if to Parent:
Revelstone Capital Acquisition Corp.
14350 Myford Road
Irvine, CA 92606
Attn: Morgan Callagy
E-mail: morgan@revelstonecap.com
with a required copy (which shall not constitute notice)
to:
Loeb & Loeb LLP
345 Park Ave
New York, NY 10154
Attention: Mitchell S. Nussbaum
Fax: 212.504.3013
E-mail: mnussbaum@loeb.com
(b) If
to the Holder, to the address set forth on the Holder’s signature page hereto.
6. Termination.
This Agreement shall terminate automatically upon, and concurrently with, the Closing or the termination of the Merger Agreement, each
in accordance with the terms of the Merger Agreement. In the event of the termination of this Agreement, this Agreement shall forthwith
become null and void, there shall be no liability on the part of any of the parties, and all rights and obligations of each party hereto
shall cease; provided, however, that no such termination of this Agreement shall relieve any party hereto from any liability for any breach
of any provision of this Agreement prior to such termination.
7. Enumeration
and Headings. The enumeration and headings contained in this Agreement are for convenience of reference only and shall not control
or affect the meaning or construction of any of the provisions of this Agreement.
8. Counterparts.
This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which shall constitute one agreement.
This Agreement shall become effective upon delivery to each party of an executed counterpart or the earlier delivery to each party of
original, photocopied, or electronically transmitted signature pages that together (but need not individually) bear the signatures
of all other parties.
9. Successors
and Assigns. This Agreement and the terms, covenants, provisions and conditions hereof shall be binding upon, and shall inure to the
benefit of, the respective heirs, successors and assigns of the parties hereto. The Holder hereby acknowledges and agrees that this Agreement
is entered into for the benefit of and is enforceable by Company and its successors and assigns.
10. Severability.
If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision will be conformed to prevailing
law rather than voided, if possible, in order to achieve the intent of the parties and, in any event, the remaining provisions of this
Agreement shall remain in full force and effect and shall be binding upon the parties hereto.
11. Amendment.
This Agreement may be amended or modified by written agreement executed by each of the parties hereto.
12. Further
Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
13. No
Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their
mutual intent, and no rules of strict construction will be applied against any party.
14. Dispute
Resolution. Each of Section 11.14 (Waiver of Jury Trial) and 11.15 (Submission to Jurisdiction) of the Merger Agreement
is incorporated by reference herein to apply with full force to any disputes arising under this Agreement.
15. Governing
Law. Section 11.7 (Governing Law) of the Merger Agreement is incorporated by reference herein to apply with full force to any
disputes arising under this Agreement.
16. Controlling
Agreement. To the extent the terms of this Agreement (as amended, supplemented, restated or otherwise modified from time to time)
directly conflicts with any provision in the Merger Agreement, the terms of this Agreement shall control.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties
hereto have caused this Lock-up Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
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PARENT: |
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REVELSTONE CAPITAL ACQUISITION CORP. |
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By: |
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Name: Morgan Callagy |
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Title: Co-Chief Executive Officer |
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By: |
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Name: Daniel Neukomm |
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Title: Co-Chief Executive Officer |
[Signature Page to Lock-Up Agreement]
IN WITNESS WHEREOF, the parties
hereto have caused this Lock-up Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
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HOLDER: |
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SANDSTORM LLC |
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By: |
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Thomas P. Smith |
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Manager |
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Address for Notice: |
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Attention: |
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Email: tom@setjet.com |
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with a required copy to (which shall
not constitute notice): |
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Attention: |
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Email: |
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[Signature Page to Lock-Up Agreement]
IN WITNESS WHEREOF, the parties
hereto have caused this Lock-up Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
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HOLDER: |
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THE III TRUST |
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William R. Smith, III, as Trustee
of The III Trust |
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Address for Notice: |
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Attention: |
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Email: trey@setjet.com |
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with a required copy to (which shall
not constitute notice): |
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Attention: |
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Email: |
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[Signature Page to Lock-Up Agreement]
IN WITNESS WHEREOF, the parties
hereto have caused this Lock-up Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
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HOLDER: |
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JADABR, LLC |
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By: |
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Name: David Jacofsky |
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Title: Manager |
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Address for Notice: |
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Attention: |
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Email: david.jacofsky@hopco.com |
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with a required copy to (which shall
not constitute notice): |
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Attention: |
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Email: |
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[Signature Page to Lock-Up Agreement]
IN WITNESS WHEREOF, the parties
hereto have caused this Lock-up Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
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HOLDER: |
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JETT FAMILY TRUST |
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Kiki Constantine, as Manager of the JETT Family Trust |
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Address for Notice: |
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Attention: |
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Email: |
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with a required copy to (which shall
not constitute notice): |
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Attention: |
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Email: |
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[Signature Page to Lock-Up Agreement]
IN WITNESS WHEREOF, the parties
hereto have caused this Lock-up Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
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HOLDER: |
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DJJ TRUST |
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David Jacofsky, as Trustee of the
DJJ Trust |
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Address for Notice: |
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Attention: |
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Email: david.jacofsky@hopco.com |
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with a required copy to (which shall
not constitute notice): |
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Attention: |
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Email: |
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[Signature Page to Lock-Up Agreement]
IN WITNESS WHEREOF, the parties
hereto have caused this Lock-up Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
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HOLDER: |
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CLEAR WATER AIR LLC |
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By: |
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Name: Steve Reynolds |
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Title: Manager |
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Address for Notice: |
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Attention: |
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Email: steve@setjet.com |
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with a required copy to (which shall
not constitute notice): |
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Attention: |
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Email: |
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[Signature Page to Lock-Up Agreement]
IN WITNESS WHEREOF, the parties
hereto have caused this Lock-up Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
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HOLDER: |
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SAU FAMILY LLC |
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By: |
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Name: Scott Untrecht |
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Title: Manager |
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Address for Notice: |
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Attention: |
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Email: scott@setjet.com |
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with a required copy to (which shall
not constitute notice): |
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Attention: |
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Email: |
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[Signature Page to Lock-Up Agreement]
RESTRICTIVE COVENANTS AGREEMENT
This RESTRICTIVE COVENANTS
AGREEMENT (this “Agreement”) is entered by and between Set Jet, Inc., a Nevada corporation (“Company”),
and ______________________ (“Employee”) (collectively, the “Parties”).
RECITALS
A. Company
and Employee acknowledge that during the course of Employee’s employment with Company, Employee will possess (or continue to possess),
and help Company develop, valuable proprietary information, trade secrets, and other confidential information belonging to Company and
will be instrumental to the development and/or maintenance of goodwill with Company’s clients and employees.
B. Company
and Employee acknowledge that such proprietary information, trade secrets, confidential information, and goodwill are valuable assets
of Company and Company has a legitimate interest in protecting itself from disclosure or misappropriation of such information and from
interference with its goodwill relationships with its clients and employees.
C. Company
and Employee agree that for purposes of protecting Company from disclosure or misappropriation of Company’s proprietary information,
trade secrets, and other confidential information and protecting its goodwill relationships with its clients and employees, it shall be
a condition to Company’s employment of Employee (or continued employment) that Employee execute and deliver this Agreement.
NOW, THEREFORE, in consideration
of Employee’s employment and other mutual covenants set forth herein, the parties agree as follows:
AGREEMENT
1. At-Will.
The employment arrangement between Employee and Company shall be at-will. Either Company or Employee may terminate the relationship at
any time, with or without notice, for any or no reason.
2. Ability
to Provide Services. Company is entering into this Agreement with Employee with the understanding that (a) Employee is free
to enter into this Agreement with Company; and (b) only Company is entitled to benefit from Employee’s work pursuant to this
Agreement. Company has no interest in using any other Person’s patents, copyrights, trade secrets, or trademarks in an unlawful
manner. Employee shall not misapply or use proprietary rights that Company has no right to use.
3. Ownership
of Intellectual Property.
(a) Any
Intellectual Property made, conceived, developed, or reduced to practice, or caused to be made, conceived, developed, or reduced to practice,
by Employee, alone or in conjunction with others, during the term of Employee’s employment with Company will be deemed to have been
made or developed by Employee solely for the benefit of Company, will be held in trust for the exclusive use and benefit of Company, and
will be the sole and exclusive property of Company. Employee will not, either during the term of Employee’s employment or at any
time after termination of such employment, use or disclose to any third party such non-public Intellectual Property, except as expressly
authorized by Company in writing. While employed by Company, Employee is permitted to use Intellectual Property for the benefit of Company,
provided such use is reasonably within the scope of Employee’s duties with Company, unless or until such authorization is revoked
or rescinded by the President of Company.
(b) Employee
agrees to make prompt and full disclosure to Company or its nominee of all Intellectual Property described in this Section 3.
To the extent permitted by applicable law, any Intellectual Property related to the business of Company that is conceived, developed,
or reduced to practice by Employee, alone or in conjunction with others, within six (6) months after termination of Employee’s
employment with Company is presumed to belong to Company.
(c) Employee
agrees to assign, and does hereby assign, to Company all right, title, and interest in and to any such Intellectual Property, including,
without limitation, any “moral” rights which Employee may have therein under any copyright law or other similar law, and further
agrees, during the term of Employee’s employment and at any time after termination of such employment, at Company’s request
and expense, to review, execute, acknowledge, and deliver any and all papers necessary to secure legal protection for Company therefore
in any country in the world, including, but not limited to, applications for patents, trademarks, service markets, and copyrights, and
to execute any oath or declaration and verify any document in connection with carrying out the terms of this Agreement. In the event Company
is unable for any reason whatsoever to secure the signature of Employee to any lawful and necessary documents required, including those
necessary for the assignment of, application for, or prosecution of any United States or foreign applications for letters patent or copyright,
Employee hereby irrevocably designates and appoints Company and its duly authorized officers and agents as agent and attorney in fact,
to act for and in Employee’s behalf and stead to execute and file any such application and to do all other lawfully permitted acts
to further the assignment, prosecution, and issuance of letters patent or copyright thereon with the same legal force and effect as if
executed by Employee. Employee hereby waives and quitclaims to Company any and all claims of any nature whatsoever which Employee may
now have or may hereafter have for infringement of any patent or copyright resulting from any such application.
(d) Employee
agrees that any copyrights in work produced by Employee during the term of Employee’s employment by Company, which relate to past,
present or foreseeable business, products, developments, technology or activities of Company shall be considered a “work for hire”
and shall belong solely to Company.
(e) As
used herein, “Intellectual Property” means any and all Inventions, Works of Authorship, trade secrets, trademarks,
patents, patentable subject matter irrespective of whether a patent application has been filed, mask works, copyrights, and any other
intellectual property conceived, created, developed, discovered, or reduced to practice while Employee is employed by Company, and that
(i) relate directly or indirectly to the business of Company or to the actual or demonstrably anticipated research or development
of Company, (ii) result from or are suggested by any work assigned to or performed by Employee for Company, or (iii) are used
to develop or improve any Company equipment, supplies, facility, product, software, service, or trade secret, whether or not such Intellectual
Property is developed entirely on Employee’s own time and with or without use of Company property; “Invention(s)”
means any and all discoveries, improvements, ideas, concepts, creative works, and designs, whether or not in writing or reduced to practice,
and whether or not they are patentable, including, but not limited to, processes, methods, formulas, and techniques and know-how; and
“Works of Authorship” means those works fixed in any tangible medium of expression from which they can be perceived,
reproduced, or otherwise communicated, either directly or with the aid of a machine or device, whether or not they are copyrightable.
4. Covenants.
(a) Confidentiality
of Confidential Information and Trade Secrets.
(i) Except
as provided below, during Employee’s employment with Company, and during the Reasonable Duration thereafter, Employee will (A) hold
in trust, keep confidential, and not divulge, furnish, sell, or make accessible to any Person any Confidential Information or Trade Secrets,
and (B) use the Confidential Information and Trade Secrets solely for the purpose of performing Employee’s duties of employment
and not for Employee’s own benefit or the benefit of any other Person. Employee is not permitted to access any Company information,
including but not limited to Confidential Information and Trade Secrets, unless Employee has been authorized and directed to access such
information by Company, or Employee has a direct business need to access such information in the furtherance of Employee’s job duties.
Employee further agrees to take all reasonable actions to assure proper precautions have been taken to prevent unauthorized access to,
the disclosure of, or the loss or destruction of Confidential Information and Trade Secrets.
(ii) Employee
shall be permitted to disclose Confidential Information or Trade Secrets to the extent, but only to the extent, (A) Company provides
its express prior written consent to such disclosure; (B) necessary to perform the duties of Employee’s employment; or (C) required
by law; provided, that prior to making any disclosure of Confidential Information or Trade Secret (whether pursuant to a deposition, interrogatories,
requests for information or documents in legal proceedings, subpoena, civil investigative demand, or other similar process), Employee
must promptly notify Company of Employee’s intent to make such disclosure, so that Company may seek a protective order or other
appropriate remedy and may participate with Employee in determining the amount and type of Confidential Information or Trade Secrets,
if any, which must be disclosed in order to comply with applicable law.
(iii) Limited
Exceptions. There are limited exceptions to the above requirement if Employee is providing information to government agencies—such
as the Equal Employment Opportunity Commission, National Labor Relations Board, the Occupational Safety and Health Administration (or
its state equivalent), and the Securities and Exchange Commission. This Agreement does not limit Employee’s ability to communicate
with any government agencies regarding matters within their jurisdiction or otherwise participate in any investigation or proceeding that
may be conducted by any government agency, including providing documents or other information, without notice to Company. Nothing in this
Agreement shall prevent Employee from the disclosure of Confidential Information or Trade Secrets that: (A) is made: (I) in
confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (II) solely for
the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in
a lawsuit or other proceeding, if such filing is made under seal. In the event that Employee files a lawsuit alleging retaliation by Company
for reporting a suspected violation of law, Employee may disclose Confidential Information or Trade Secrets related to the suspected violation
of law or alleged retaliation to Employee’s attorney and use the Confidential Information or Trade Secrets in the court proceeding
if Employee or Employee’s attorney: (i) files any document containing Confidential Information or Trade Secrets under seal;
and (ii) does not disclose the Confidential Information or Trade Secrets, except pursuant to court order. Company provides this notice
in compliance with the Defend Trade Secrets Act of 2016.
(iv) Promptly
after termination of Employee’s employment with Company, or at any time upon request by Company, Employee shall return to Company
all Company property, including but not limited to any Confidential Information and Trade Secrets which are in tangible form and which
is then in Employee’s possession. Employee further agrees that, at the request of Company, Employee will execute a written statement
certifying that Employee has complied with the requirements of this Section 4(a)(iv).
(v) As
used herein;
“Person”
means any corporation, partnership, limited liability company, association, organization, group, trust, estate, firm, individual, or other
legal entity;
“Confidential
Information” means all information concerning or related to the business, operations, financial condition, customers, or prospects
of Company that is not known by, or readily available to the public (whether prepared by Company, its advisors or otherwise; regardless
of the form in which such information appears and whether or not such information has been reduced to a tangible form), and shall specifically
include (without limitation) the following non-public information and documents: (A) Company’s trade secrets, processes,
techniques, methods, ideas, and know-how; (B) Company’s specialized or unique technology; pricing; advertising and marketing
strategies; financial statements; audit reports; budgets; business methods; and business plans or forecasts; (C) analyses, compilations,
forecasts, data and/or market studies, notes, translations, or memoranda or other documents or materials containing, based on, generated
or derived from, in whole or in part, any Confidential Information (whether prepared by Company, Employee or a third party); (D) Company’s client
preferences and historical services provided to clients; (E) Company’s vendor agreements and pricing; (F) Company’s referral
sources and agreements relating thereto; (G) Company’s licenses and licensees, and agreements relating thereto; (H) Company’s methods,
procedures, and strategies utilized in identifying prospective clients, referral sources, and suppliers and in soliciting the business
thereof, and in marketing, pricing, applying and delivering the products and services of Company; (I) information from Company’s
clients that has been designated and/or treated as confidential by such clients and that has been entrusted to Employee and/or Company
as confidential; and (J) any third-party manufacturer information that is subject to a non-disclosure agreement between Company and
the manufacturer. Confidential Information is confidential regardless of its form, and whether or not it is marked as “confidential”
or “proprietary.”
“Confidential Information”
will not include information that (I) is or becomes part of the public domain through no fault of Employee; (II) is already
known to Employee and has been identified by Employee to Company in writing prior to the commencement of Employee’s employment with
Company; or (III) is subsequently lawfully received by Employee from a third party not subject to confidentiality restrictions.
“Reasonable
Duration” with regard to the Trade Secrets, means the duration of the obligations and duties under this Agreement shall remain
in effect as long as the information constitutes a trade secret under applicable law. With regard to Confidential Information, “Reasonable
Duration” means that the obligations and duties under this Agreement shall remain in effect so long as Company treats the information
as confidential and/or is obligated to treat the information as confidential. In the event something qualifies as both a Trade Secret
and Confidential Information, the obligations and duties under this Agreement shall remain in effect for the longer of the period of time
the information constitutes a trade secret under applicable law or the period of time Company treats the information as confidential.
If Employee has any questions regarding whether any information, document, or other Company property is considered Confidential Information
or a Trade Secret, Employee must consult with Company’s President in writing before taking any action that may be in violation of
this Agreement.
“Trade Secrets”
means information, including a formula, pattern, compilation, program, device, method, technique or process, that: (A) derives independent
economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other
persons who can obtain economic value from its disclosure or use; and (B) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy. Trade Secrets may be developed by Company and/or made known to or acquired by Company from an affiliate,
parent company, subsidiary, division, employee, contractor, staff member, officer, board member, manager, agent of Company, third party,
or client.
(b) Anti-Piracy
of Company Employees. Employee recognizes that Company’s employees are a valuable resource of Company. Accordingly, Employee
agrees that Employee will not, during Employee’s employment with Company and during the Employee Anti-Piracy Term thereafter, either
alone or in conjunction with any other Person, directly or indirectly, (i) induce or encourage (or attempt to induce or encourage)
any employee of Company to leave the employ of Company, whether for purposes of employing or contracting any such employee in a Competing
Business or for any other reason, or (ii) interfere in any way with the relationship between Company and any such employee.
(i) As
used herein:
“Competing Business”
means products or services that are the same, similar or otherwise in competition with the products and
services that Company is then currently offering (or of which Employee has knowledge, at the time in question, that the Company has plans
to offer within twelve (12) months) with which Employee was involved or about which Employee acquired Confidential Information.
“Employee Anti-Piracy
Term” means the eighteen (18) month period commencing on the Termination Date; provided, however, that if (and only if) required
by a final decision or order of a court of competent jurisdiction in order for the provisions of this Section 4(b) to
remain valid and enforceable against Employee, “Employee Anti-Piracy Term” means the twelve (12) month period commencing on
the Termination Date.
“Termination Date”
means the date on which Employee’s employment with Company is terminated by either Company or Employee, for any reason or no reason.
(c) Anti-Piracy
of Company Clients. Employee recognizes that Company’s Clients are a valuable resource of Company. Accordingly, Employee agrees
that Employee will not, during Employee’s employment with Company and during the Client Anti-Piracy Term thereafter, directly or
indirectly in any capacity whatsoever, either as an employee, officer, director, equity holder, proprietor, partner, joint venture, consultant,
or otherwise (i) call on or solicit any Company Client for purposes of diverting such customer to a Competing Business; or (ii) induce
or encourage (or attempt to induce or encourage) any customer, vendor, supplier, licensor, licensee or other Person to cease conducting
business with Company; or (iii) in any way interfere with the relationship between any such customer, supplier, licensee or other
Person and Company.
(i) As
used herein:
“Company Client(s)”
means (i) the actual current clients and customers of Company which Employee alone, or in combination with others, handled, serviced,
or solicited at any time during the one (1) year period immediately preceding the Termination Date. In the case of a corporate client,
“Company Client” shall, in addition to the corporate client itself, the individual representative of the corporate client
and his or her successor or equivalent within the organizational subdivision of the corporate client on behalf of which he or she patronized
Company, any organizational subdivision of the corporate client on behalf of which such individual representative has patronized Company,
and any organizational subdivision of the corporate client referred to Employee by such individual representative.
“Client Anti-Piracy
Term” means the eighteen (18) month period commencing on the Termination Date; provided, however, that if (and only if) required
by a final decision or order of a court of competent jurisdiction in order for the provisions of this Section 4(c) to
remain valid and enforceable against Employee, “Client Anti-Piracy Term” means the twelve (12) month period commencing on
the Termination Date.
“Competing Business”
has the same definition as set forth above in Section 4(b)(i).
5. Representations,
Warranties and Covenants of Employee. Employee hereby represents and warrants to, and covenants with, Company as follows:
(a) Employee
has the full legal right and power and all authority required to enter into and to perform according to the terms of this Agreement. This
Agreement is duly and validly executed and delivered by Employee, and constitutes legal, valid and binding obligations of Employee enforceable
against Employee in accordance with its terms.
(b) The
execution, delivery and performance of this Agreement by Employee do not and will not (i) conflict with, or constitute a default
under, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or
both) of, any agreement or other instrument or other understanding to which Employee is a party or by which any property or asset of Employee
is bound or affected, or (ii) result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction
of any court or governmental authority to which Employee is subject, or by which any property or asset of Employee is bound or affected.
(c) All
work produced by Employee hereunder will be originally created by Employee, and will not (and will not when used by Company for any purpose)
infringe, or otherwise violate or misappropriate any patent, copyright, trade secret, trademark or other intellectual property or proprietary
right held by any Person. Without the express written permission of Company, Employee will not incorporate into the work produced hereunder
any third party product, software, or other materials for which the intellectual property rights are not owned solely by Employee. Employee
has not previously granted and will not grant any rights in the work produced hereunder or the Intellectual Property that are inconsistent
with the rights granted to Company herein.
6. Adequate
Opportunity To Review; Reasonableness of Covenants. Employee has carefully read and considered this Agreement, including all restrictive
covenants, all provisions relating to confidentiality, and all duties imposed upon Employee. Employee acknowledges that Employee understands
and has had the opportunity to review this Agreement with counsel of Employee’s own choosing. Employee represents and warrants to
Company that (a) all provisions contained in this Agreement are fair, reasonable, and reasonably required for the protection of Company’s
business interests, (b) valid consideration has been received therefore, and (c) Employee’s experience and capabilities
are such that the provisions of this Agreement will not prevent Employee from earning an adequate livelihood for Employee.
7. Extension
of Time for Breach. If Employee is in breach of any of the provisions of Section 3 or 4 above, then the time
periods set forth in such provisions will be extended by the length of time during which Employee is in breach of any of such provisions.
8. Miscellaneous.
(a) Recitals.
The Recitals are hereby incorporated herein.
(b) Counterparts;
Electronic Signatures. This Agreement may be executed simultaneously in one or more counterparts, but all such counterparts taken
together will constitute one and the same Agreement. The exchange of copies of this Agreement and of signature pages by secure electronic
transmission, such as DocuSign, or .pdf signatures delivered via email, will constitute effective execution and delivery of this Agreement
as to the Parties and may be used in lieu of the original Agreement for all purposes.
(c) Entire
Agreement; Amendment. This Agreement constitutes the entire agreement of the parties with respect to the transactions contemplated
hereby and supersedes all prior and contemporaneous written and oral agreements, representations and communications between the parties
relating to such transactions. This Agreement may be amended, supplemented, or otherwise modified only by a writing signed by both of
the parties, and any such amendment shall be effective only to the extent specifically set forth in such writing.
(d) Equitable
Relief. Employee acknowledges and agrees that Company would be irreparably damaged in the event that any of the provisions of this
Agreement are not performed by Employee in accordance with their specific terms or are otherwise breached, and that money damages cannot
be easily and fairly quantified at this time and, accordingly, would not be a sufficient remedy for such breach. Employee agrees that
Company will be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach, without
any requirement to post bond or other security or to prove actual damage or harm. Such remedies shall not be deemed to be the exclusive
remedies for any such breach but shall be in addition to all other remedies available at law or in equity.
(e) Governing
Law; Venue; Attorneys’ Fees. Any arbitration agreement applicable to Employee in relation to Employee’s employment with
Company shall not be applicable to any violation by Employee of any term of this Agreement. Any violation of this Agreement shall be governed
by, and shall be construed and enforced in accordance with, the laws of the State of Arizona, without giving effect to any conflict of
laws rules. The exclusive venue for any dispute arising under or related to this Agreement shall be federal or state courts located in
Phoenix, Arizona, and the Parties submit to the personal jurisdiction of such courts. If any lawsuit is brought in connection with this
Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees, accounting fees, and other costs incurred
in that action or proceeding, in addition to any other relief to which it may be entitled. The phrase “prevailing party”
means the party who is determined in the proceeding to have prevailed or who prevails by dismissal, default, judgment, or otherwise.
(f) Severability.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
(g) Successors
and Assigns. Employee may not assign Employee’s rights or delegate or cause to be assumed Employee’s obligations hereunder
without the prior written consent of Company. Any attempted assignment, delegation or assumption not in accordance with this section shall
be null and void and of no force or effect whatsoever. The terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and permitted assigns of the parties. Any successor to Company, whether by merger, sale of all
or substantially all of Company’s assets or stock, or otherwise, is an intended third party beneficiary of this Agreement with the
same rights to enforce this Agreement as Company.
(h) Survival.
This Agreement shall survive any termination of Employee’s employment with Company.
(i) Waivers.
The due performance or observance by the parties of their respective obligations under this Agreement shall not be waived, and the rights
and remedies of the parties hereunder shall not be affected, by any course of dealing or performance or by any delay or failure of any
party in exercising any such right or remedy. The due performance or observance by a party of any of its obligations under this Agreement
may be waived only by a writing signed by the party against whom enforcement of such waiver is sought, and any such waiver shall be effective
only to the extent specifically set forth in such writing.
IN WITNESS WHEREOF, Employee
and Company have approved and executed this Agreement as of the date set forth below.
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STATE
OF DELAWARE
CERTIFICATE
OF MERGER OF
DOMESTIC
CORPORATION INTO
FOREIGN
CORPORATION
Dated:
___________________
Pursuant
to Title 8, Section 252 of the Delaware General Corporation Law, the undersigned corporation executed the following Certificate
of Merger:
FIRST:
The name of the surviving corporation is Set Jet, Inc. a Nevada corporation (the “Surviving Corporation”), and
the name of the entity being merged into this surviving corporation is Revelstone Capital Merger Sub, Inc., a Delaware corporation
(the “Merging Corporation”).
SECOND:
The Agreement of Merger (the “Agreement of Merger”) has been approved, adopted, certified, executed and acknowledged
by each of the Surviving Corporation and the Merging Corporation pursuant to Title 8, Section 252.
THIRD:
The name of the Surviving Corporation is Set Jet, Inc., a Nevada corporation.
FOURTH:
The Certificate of Incorporation of the Surviving Corporation shall be its Certificate of Incorporation.
FIFTH:
The merger is to become effective upon the earlier of the filing of (i) this Certificate of Merger with the Secretary of State of
the State of Delaware, and (ii) the Articles of Merger with the Secretary of State of the State of Nevada.
SIXTH:
The Agreement of Merger is on file at [15011 North 75th Street, Scottsdale, Arizona 85260], the place of business of the Surviving Corporation.
SEVENTH:
A copy of the Agreement of Merger will be furnished by the Surviving Corporation on request, without cost, to any stockholder of the
Surviving Corporation or the Merging Corporation.
EIGHT:
The surviving corporation agrees that it may be served with process in the State of Delaware in any proceeding for enforcement of any
obligation of the surviving corporation arising from this merger, including any suit or other proceeding to enforce the rights of any
stockholders as determined in appraisal proceedings pursuant to the provisions of Section 262 of the Delaware General Corporation
laws, and irrevocably appoints the Secretary of State of Delaware as its agent to accept services of process in any such suit or proceeding.
The Secretary of State shall mail any such process to the Surviving Corporation at [15011 North 75th Street, Scottsdale, Arizona 85260]1.
1
NTD: Address to be confirmed by Set Jet prior to filing.
IN
WITNESS WHEREOF, the Surviving Corporation has caused this Certificate of Merger to be signed by the undersigned authorized officer
on the date set forth above.
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SET JET, INC., |
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A Nevada corporation |
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Signature Page to Certificate of Merger –
Revelstone Capital Merger Sub, Inc. into Set Jet, Inc.
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FRANCISCO V. AGUILAR
Secretary of State
202 North Carson Street
Carson City, Nevada 89701-4201
(775) 684-5708
Website: www.nvsos.gov
www.nvsilverflume.gov ABOVE SPACE IS FOR OFFICE USE ONLY
Articles of Conversion/Exchange/Merger
NRS 92A.200 and 92A.205
This filing completes the following: Conversion Exchange Merger
TYPE OR PRINT - USE DARK INK ONLY - DO NOT HIGHLIGHT
1. Entity Information:
(Constituent, Acquired
or Merging)
Entity Name:
Jurisdiction: Entity Type*:
If more than one entity being acquired or merging please attach additional page.
2. Entity Information:
(Resulting, Acquiring
or Surviving)
Entity Name:
Jurisdiction: Entity Type*:
3. Plan of Conversion, The entire plan of conversion, exchange or merger is attached to these articles.
Exchange or Merger:
(select one box) The complete executed plan of conversion is on file at the registered office or principal place
of business of the resulting entity. The entire plan of exchange or merger is on file at the
registered office of the acquiring corporation, limited-liability company or business trust, or at
the records office address if a limited partnership, or other place of business of the acquiring
entity (NRS 92A.200).
The complete executed plan of conversion for the resulting domestic limited partnership is
on file at the records office required by NRS 88.330. (Conversion only)
4. Approval:
(If more than one entity
being acquired or
merging please attach
additional approval
page.)
Exchange/Merger:
Owner's approval (NRS 92A.200) (options a, b or c must be used for each entity)
A. Owner's approval was not required from the:
Acquired/merging
Acquiring/surviving
B. The plan was approved by the required consent of the owners of:
Acquired/merging
Acquiring/surviving
C. Approval of plan of exchange/merger for Nevada non-profit corporation (NRS 92A.160):
Non-profit Corporations only: The plan of exchange/merger has been approved by the
directors of the corporation and by each public officer or other person whose approval of
the plan of merger is required by the articles of incorporation of the domestic corporation.
Acquired/merging
Acquiring/surviving
Name of acquired/merging entity
Name of acquiring/surviving entity
5. Effective Date and
Time: (Optional)
Date: Time:
(must not be later than 90 days after the certificate is filed)
* corporation, limited partnership, limited-liability limited partnership, limited-liability company or business trust. Page 1 of 4
Revised: 12/15/2022 |
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FRANCISCO V. AGUILAR
Secretary of State
202 North Carson Street
Carson City, Nevada 89701-4201
(775) 684-5708
Website: www.nvsos.gov
www.nvsilverflume.gov ABOVE SPACE IS FOR OFFICE USE ONLY
Articles of Conversion/Exchange/Merger
NRS 92A.200 and 92A.205
This filing completes the following: Conversion Exchange Merger
TYPE OR PRINT - USE DARK INK ONLY - DO NOT HIGHLIGHT
4. Approval
Continued:
(If more than one entity
being acquired or
merging please attach
additional approval
page.)
4. Approval
Continued:
(If more than one entity
being acquired or
merging please attach
additional approval
page.)
Exchange/Merger:
Owner's approval (NRS 92A.200) (options a, b or c must be used for each entity)
A. Owner's approval was not required from the:
Acquired/merging
Acquiring/surviving
B. The plan was approved by the required consent of the owners of:
Acquired/merging
Acquiring/surviving
C. Approval of plan of exchange for Nevada non-profit corporation (NRS 92A.160):
Non-profit Corporations only: The plan of exchange/merger has been approved by the
directors of the corporation and by each public officer or other person whose approval of
the plan of merger is required by the articles of incorporation of the domestic corporation.
Acquired/merging
Acquiring/surviving
Name of acquired/merging entity
Name of acquiring/surviving entity
Exchange/Merger:
Owner's approval (NRS 92A.200) (options a, b or c must be used for each entity)
A. Owner's approval was not required from the:
Acquired/merging
Acquiring/surviving
B. The plan was approved by the required consent of the owners of:
Acquired/merging
Acquiring/surviving
C. Approval of plan of exchange for Nevada non-profit corporation (NRS 92A.160):
Non-profit Corporations only: The plan of exchange/merger has been approved by the
directors of the corporation and by each public officer or other person whose approval of
the plan of merger is required by the articles of incorporation of the domestic corporation.
Acquired/merging
Acquiring/surviving
Name of acquired/merging entity
Name of acquiring/surviving entity
* corporation, limited partnership, limited-liability limited partnership, limited-liability company or business trust. Page 2 of 4
Revised: 12/15/2022 |
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FRANCISCO V. AGUILAR
Secretary of State
202 North Carson Street
Carson City, Nevada 89701-4201
(775) 684-5708
Website: www.nvsos.gov
www.nvsilverflume.gov
Conversion:
A plan of conversion has been adopted by the constituent entity in compliance with the law of
the jurisdiction governing the constituent entity.
Signatures - must be signed by:
1. If constituent entity is a Nevada entity: an officer of each Nevada corporation; all general
partners of each Nevada limited partnership or limited-liability limited partnership; a manager of
each Nevada limited-liability company with managers or one member if there are no managers; a
trustee of each Nevada business trust; a managing partner of a Nevada limited-liability partnership
(a.k.a. general partnership governed by NRS chapter 87).
2. If constituent entity is a foreign entity: must be signed by the constituent entity in the manner
provided by the law governing it.
Care of:
Name
Address City State Zip/Postal Code
6.Forwarding
Address for Service
of Process:
(Conversion and Mergers
only, if resulting/surviving
entity is foreign)
Articles of Conversion/Exchange/Merger
NRS 92A.200 and 91A.205
Name of constituent entity
9. Signature
Statement: (Required)
8. Declaration:
(Exchange and
Merger only)
Exchange:
The undersigned declares that a plan of exchange has been adopted by each constituent entity
(NRS 92A.200).
Merger: (Select one box)
The undersigned declares that a plan of merger has been adopted by each constituent entity
(NRS 92A.200).
The undersigned declares that a plan of merger has been adopted by the parent domestic
entity (NRS 92A.180).
** Amended and restated articles may be attached as an exhibit or integrated into the articles of merger.
Please entitle them "Restated" or "Amended and Restated," accordingly. The form to accompany restated
articles prescribed by the secretary of state must accompany the amended and/or restated articles.
Pursuant to NRS 92A.180 (merger of subsidiary into parent - Nevada parent owning 90% or more of
subsidiary), the articles of merger may not contain amendments to the constituent documents of the
surviving entity except that the name of the surviving entity may be changed.
7. Amendment, if any,
to the articles or
certificate of the
surviving entity. (NRS
92A.200):
(Merger only) **
Country
Form will be returned if unsigned. Page 3 of 4
This form must be accompanied by appropriate fees. Revised: 12/15/2022 |
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FRANCISCO V. AGUILAR
Secretary of State
202 North Carson Street
Carson City, Nevada 89701-4201
(775) 684-5708
Website: www.nvsos.gov
www.nvsilverflume.gov
Page 4 of 4
Revised: 12/15/2022
Title Date
10. Signature(s):
(Required)
Form will be returned if unsigned.
This form must be accompanied by appropriate fees.
Name of acquired/merging entity
X ________________________________
Signature (Exchange/Merger)
Title Date
X ________________________________
Signature (Exchange/Merger)
Name of acquiring/surviving entity
Please include any required or optional information in space below:
(attach additional page(s) if necessary)
Articles of Conversion/Exchange/Merger
NRS 92A.200 and 91A.205
If more than one entity being acquired or merging please attach additional page of informaiton and signatures.
Signatures - Must be signed by: An officer of each Nevada corporation; All general partners
of each Nevada limited partnership; All general partners of each Nevada limited-liability
limited partnership; A manager of each Nevada limited-liability company with managers or
one member if there are no managers; A trustee of each Nevada business trust (NRS
92A.230).
The articles of merger must be signed by each foreign constituent entity in the manner
provided by the law governing it (NRS 92A.230). Additional signature blocks may be added
to this page or as an attachment, as needed.
Merger:
9. Signature
Statement
Continued: (Required)
Title Date
X ________________________________
Signature of Constituent Entity (Conversion)
Signatures - Must be signed by: An officer of each Nevada corporation; All general partners
of each Nevada limited partnership; All general partners of each Nevada limited-liability
limited partnership; A manager of each Nevada limited-liability company with managers or a
member if there are no Managers; A trustee of each Nevada business trust (NRS 92A.230)
Unless otherwise provided in the certificate of trust or governing instrument of a business
trust, an exchange must be approved by all the trustees and beneficial owners of each
business trust that is a constituent entity in the exchange.
The articles of exchange must be signed by each foreign constituent entity in the manner
provided by the law governing it (NRS 92A.230). Additional signature blocks may be added
to this page or as an attachment, as needed.
Exchange: |
EARNOUT ESCROW AGREEMENT
This EARNOUT ESCROW AGREEMENT
(this “Agreement”) is made and entered into as of [●], 2023, by and among (i) Set Jet, Inc., a Delaware
corporation (f/k/a Revelstone Capital Acquisition Corp.) (“PubCo”), (ii) Revelstone Capital, LLC, a Delaware limited
liability company (“Sponsor”), (iii) Thomas P. Smith, solely in its capacity as the representative of the Earnout
Recipients (together with any successor appointed in accordance with the Merger Agreement, the “Holder Representative”,
and together with PubCo and Sponsor, sometimes referred to individually as a “Party” or collectively as the “Parties”),
and (iv) Continental Stock Transfer & Trust Company (the “Escrow Agent”). Capitalized terms used but
not defined herein shall have the respective meanings ascribed to them in the Merger Agreement (as defined herein).
WHEREAS, each of Holder
Representative, PubCo and Set Jet, Inc., a Nevada corporation, have entered into that certain Merger Agreement dated as of July [●],
2023 (the “Merger Agreement”) pursuant to which the parties thereto have agreed to establish an escrow arrangement
for the purposes set forth therein;
WHEREAS, in accordance
with Section 3.6 of the Merger Agreement up to 4,500,000 shares of Class A Common Stock of PubCo shall be issued by PubCo to
the Earnout Recipients (the “Earnout Shares”);
WHEREAS, the Earnout
Shares shall be held in escrow by the Escrow Agent pursuant to the terms of this Agreement (the “Escrow Account”) and
shall be released by the Escrow Agent only upon the occurrence of certain milestone events as specifically set forth in this Agreement
and pursuant to Section 3.6(a), Section 3.6(b) or Section 3.6(c) of the Merger Agreement;
WHEREAS, pursuant to
Section 11.18 of the Merger Agreement, the Holder Representative is appointed as the representative, true and lawful attorney in
fact and agent for all of the Earnout Recipients for all purposes set forth therein; and
WHEREAS, the Parties
desire to constitute and appoint the Escrow Agent as escrow agent hereunder, and the Escrow Agent is willing to assume and perform the
duties and obligations of the escrow agent pursuant to the terms and conditions set forth herein.
NOW THEREFORE, in consideration
of the foregoing and of the mutual covenants hereinafter set forth, the parties hereto agree as follows:
1. Appointment.
Each of Holder Representative, acting on behalf of the Earnout Recipients, Sponsor and PubCo hereby appoint the Escrow Agent as their
escrow agent to (a) hold in escrow the Earnout Shares and any Escrowed Dividends (as defined herein) received by the Escrow Agent
pursuant to Section 2(e) for the Earnout Recipients and (b) to administer and disburse the Earnout Shares and the Escrow
Dividends and otherwise for the purposes set forth herein, and the Escrow Agent hereby accepts such appointment under the express terms
and conditions set forth herein.
2. Deposit,
Delivery and Receipt of Earnout Shares; Other Actions.
(a) At
the Closing and immediately prior to the Effective Time, PubCo will issue the Earnout Shares to the Escrow Agent. The Escrow Agent will
hold the Earnout Shares in the Escrow Account as a book-entry position with a number of Earnout Shares registered in the name of the Escrow
Agent until any such Earnout Shares are to be (i) released to the Earnout Recipients on a pro rata basis as set forth on Exhibit A,
or (ii) otherwise forfeited and released to PubCo, in each case, in accordance with the terms of this Agreement and the Merger Agreement.
(b) When
all or any portion of the Earnout Shares are required to be released under the Merger Agreement, the Parties shall deliver joint written
instructions to the Escrow Agent in accordance with the security procedures set forth in Section 11 and executed by each of PubCo,
Sponsor and the Holder Representative (a “Release Notice”).
(c) The
Escrow Agent does not own or have any interest in the Earnout Shares or any Escrowed Dividends, but is serving as escrow holder, having
only possession thereof and agreeing to hold and distribute the Earnout Shares and any Escrowed Dividends in accordance with the terms
and conditions set forth herein.
(d) During
the term of this Agreement, neither the Escrow Agent, the Earnout Recipients (or any individual Earnout Recipient), nor Holder Representative
nor Sponsor nor PubCo shall have the right to exercise any voting rights with respect to any of the Earnout Shares.
(e) Any
dividend or other distributions distributed on any Earnout Shares (collectively the “Escrowed Dividends”) shall be
distributed to and held by the Escrow Agent to be held in a bank account and be deposited in a non-interest bearing account to be maintained
by the Escrow Agent and deemed part of the escrow hereunder. The Escrow Agent shall disburse the Escrowed Dividends together with and
when the Earnout Shares on which such dividend was distributed are released, to the same person or entity to whom such Earnout Shares
are released in accordance with the terms of this Agreement. For the avoidance of doubt, any release or distribution of Earnout Shares
in accordance with this Agreement shall also be understood to include a distribution of the Escrowed Dividends, if any, with respect to
such released Earnout Shares.
(f) Any
cash Escrowed Dividends shall be delivered to the Escrow Agent to be held in a bank account and be deposited in one or more non-interest-bearing
accounts to be maintained by the Escrow Agent in the name of the Escrow Agent at one or more of the banks listed in Schedule 3 hereto
(the “Approved Banks”). The deposit of such Escrowed Dividends in any of the Approved Banks shall be deemed to be at
the direction of the applicable Party entitled to such Escrowed Dividends (for the avoidance of doubt, when the Earnout Recipients are
entitled to such Escrowed Dividends, for purposes hereunder, the “applicable Party” shall be the Holder Representative acting
on behalf of the Earnout Recipients). At any time and from time to time, the applicable Party entitled to such Escrowed Dividends may
direct the Escrow Agent, by written instruction, (i) to deposit such dividends with a specific Approved Bank, (ii) not to deposit
any new dividend amount in any Approved Bank as specified in such written instruction and/or (iii) to withdraw all or any of such
dividends that may then be deposited with any Approved Bank specified in such written instruction. With respect to any such written instruction
by the applicable Party entitled to the Escrowed Dividends, the Escrow Agent will withdraw such amount specified in such written instruction
as soon as reasonably practicable and the Parties acknowledge and agree that such specified amount remains at the sole risk of the Parties
prior to and after such withdrawal. Any amount so withdrawn may be reinvested or deposited with any other Approved Bank or any Approved
Bank instructed by the applicable Party entitled to the Escrowed Dividends in such written instruction. So long as the Escrow Agent is
holding any amount of the cash Escrowed Dividends in accordance with this Agreement and absent investment instructions from the applicable
Party in accordance with this Section 2(f) (such amount in respect of which no investment instructions have been received, a
“Non-Invested Amount”), the Escrow Agent shall deposit the Non-Invested Amount in a non-interest-bearing account with
an Approved Bank and such deposit of the Escrowed Dividend in any of the Approved Banks shall be deemed to be at the direction of the
applicable Party entitled to such Escrowed Dividends.
(g) The
Escrow Agent shall have no duty, responsibility or obligation to invest any cash Escrowed Dividends or other funds or cash held by it
hereunder other than in accordance with this Section 2.
(h) The
amounts held in custody by the Escrow Agent pursuant to this Agreement are at the sole risk of the Parties and, without limiting the generality
of the foregoing, the Escrow Agent shall have no responsibility or liability for any diminution of the cash Escrowed Dividends which may
result from any deposits made pursuant to this Agreement, including any losses resulting from a default by an Approved Bank or any other
credit losses (whether or not resulting from such default) or other losses on any deposit required to be liquidated in order to make a
payment required hereunder. The Parties acknowledge and agree that the Escrow Agent is acting prudently and at their direction when depositing
the cash Escrowed Dividends at any Approved Bank, and the Escrow Agent is not required to make any further inquiries in respect of any
Approved Bank.
3. Release
Notices.
(a) The
Escrow Agent shall disburse the Earnout Shares only in accordance with the Release Notice. The Release Notice shall set forth in reasonable
detail the triggering event giving rise to the requested release and the specific release instructions with respect thereto (including
the number of Earnout Shares to be released and the identity of the person to whom they should be released).
(b) If
the Earnout Shares are to be released to the Earnout Recipients (as opposed to a release and forfeiture to PubCo), the specified number
of Earnout Shares (and the applicable portion of the Escrowed Dividends) shall be released directly to the Earnout Recipients in accordance
with the terms of the Merger Agreement (in which case, the Holder Representative shall specify in the Release Notice the number of Earnout
Shares and Escrowed Dividends each Earnout Recipient shall receive in connection with such release and the Escrow Agent, which the Holder
Representative shall calculate in accordance with the Consideration Spreadsheet pursuant to Section 3.5 of the Merger Agreement,
and the Escrow Agent shall have no liability for the accuracy of, or compliance with terms of the Merger Agreement or any other document,
of such instructions).
(c) If
the Merger Agreement requires that all or any portion of the Earnout Shares are to be released and forfeited to PubCo, then the Release
Notice shall specify the number of Earnout Shares to be released and forfeited to PubCo (and the applicable portion of the Escrowed Dividends).
(d) In
the event an equitable adjustment is required under Section 4(c) below, any Release Notice shall also include reasonably detailed
information with respect to such equitable adjustment.
(e) During
the period from the date of this Agreement until the date upon which all of the Earnout Shares have been released, PubCo, Sponsor and
the Holder Representative agree to promptly and jointly issue the Release Notice upon the occurrence of an Earnout Trigger, as such events
are described in the Merger Agreement (and in accordance with Section 4). For the avoidance of doubt, in the event of a conflict
between the terms of this Agreement and the Merger Agreement, then, as between PubCo and the Holder Representative or any subset thereof,
the terms of the Merger Agreement shall control and the Parties and the Escrow Agent shall use reasonable best efforts to effect an amendment
to this Agreement (including to Section 4 below).
(f) Within
five (5) Business Days following the receipt of any Release Notice and subject to the receipt of required documentation for compliance
with applicable anti-money laundering requirements, the Escrow Agent shall release and deliver to the person or persons designated in
the applicable Release Notice the number of Earnout Shares set forth in such Release Notice by transfer of the relevant Earnout Shares
into the securities accounts designated in such Release Notice.
(g) The
Escrow Agent shall be entitled to rely upon, and be held harmless for such reliance, on any Release Notice for any action taken, suffered
or omitted to be taken in good faith by it. The Escrow Agent shall have no obligation to determine whether the Earnout Trigger has occurred
or is contemplated to occur under the Merger Agreement, this Agreement (including, without limitation, under Section 4), or any other
document.
(h) For
purposes of this Agreement, “Business Day” shall mean any day other than a Friday, Saturday, Sunday or any other day
on which commercial banks in Phoenix, Arizona or commercial banks in the location of the Escrow Agent’s offices listed in the Escrow
Agent’s notice address in Section 10 are authorized or required by law to close.
4. Disbursement
and Termination.
(a) Release
of Earnout Shares.
(i) 3,500,000
Earnout Shares shall be released and delivered to the Earnout Recipients if the VWAP of Parent’s Common Stock is above $12.50 for
any twenty (20) out of thirty (30) consecutive Trading Days during the Earnout Period (the “12.50 Earnout Trigger”);
(ii) 1,000,000
Earnout Shares if the VWAP of Parent’s Common Stock is above $15.00 for any twenty (20) out of thirty (30) consecutive Trading Days
during the Earnout Period (together with the 12.50 Earnout Trigger, the “Earnout Triggers” and each an “Earnout Trigger”);
(iii) for
the avoidance of doubt, any Earnout Shares to be released from the Escrow Account shall be distributed and released as PubCo’s Class A
Common Stock; and
(iv) if
at any time after the Closing and prior to or on the fifth (5th) anniversary of the Closing Date, there occurs any transaction resulting
in a Change in Control, then the Earnout Trigger shall be deemed to have occurred.
(b) Escrow
Termination Date. Within ten (10) Business Days after the date that is the fifth (5th) anniversary of the Closing Date (the “Release
Date”), PubCo, Sponsor and Holder Representative shall issue a Release Notice to the Escrow Agent instructing the Escrow Agent
to release to PubCo (i) the number of Earnout Shares, if greater than zero, equal to (such amount, the “Remaining Earnout
Shares”) (a) the number of Earnout Shares left in escrow less (ii) any Earnout Shares that are subject to release
pursuant to Section 4(a)(i) or Section 4(a)(ii) of this Agreement or Section 3.6(a), Section 3.6(b) or
Section 3.6(c) of the Merger Agreement due to the applicable Trigger Event being timely met (the “Pending Earnout Shares”)
and (b) any Escrowed Dividend with respect to the Remaining Earnout Shares. PubCo will, immediately upon receipt of the Remaining
Earnout Shares, retire the Remaining Earnout Shares. With respect to any Pending Earnout Shares and any Escrowed Dividend with respect
to the Pending Earnout Shares (the “Pending Escrowed Dividend”), the Escrow Agent shall continue to hold such amounts
in escrow in accordance with the terms of this Agreement and the Merger Agreement until the Escrow Agent releases such Pending Earnout
Shares pursuant to Section 4(a)(i) or Section 4(a)(ii) of this Agreement or Section 3.6(a), Section 3.6(b) or
Section 3.6(c) of the Merger Agreement and Pending Escrowed Dividend pursuant to Section 2(e) of this Agreement. Subject
to the provisions of this Section 4, this Agreement shall terminate after all of the Earnout Shares and Escrowed Dividends have been
released from the Escrow Account.
(c) Adjustment.
The PubCo’s Class A Common Stock price targets set forth in Section 3.6 of the Merger Agreement and the number of PubCo’s
Class A Common Stock to be issued and released pursuant to Section 3.6 of the Merger Agreement shall be equitably adjusted for
any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, or any similar event affecting
the PubCo Class A Common Stock after the date of this Agreement.
(d) Records.
The Escrow Agent shall keep proper books of record and account in which full and correct entries shall be made of all release activity
in the Escrow Account.
5. Escrow
Agent.
(a) The
Escrow Agent shall have only those duties as are specifically and expressly provided herein, which shall be deemed purely ministerial
in nature, and no other duties shall be implied. The Escrow Agent shall not have any fiduciary, partnership or joint venture relationship
with any Party or any other person or entity arising out of or in connection with this Agreement.
(b) The
Escrow Agent shall not be responsible for, nor chargeable with, knowledge of, nor have any requirements to comply with, the terms and
conditions of any other agreement, instrument or document among the Parties, in connection herewith, if any, including without limitation
the Merger Agreement, nor shall the Escrow Agent be required to determine if any person or entity has complied with any such agreements,
nor shall any additional obligations of the Escrow Agent be inferred from the terms of such agreements, even though reference thereto
may be made in this Agreement. In the event of any conflict between the terms and provisions of this Agreement, those of the Merger Agreement,
any schedule or exhibit attached to this Agreement, or any other agreement among the Parties, the terms and conditions of this Agreement
shall govern and control in all respects relating to the Escrow Agent, but in every other respect involving the parties and beneficiaries
of any such other agreement, the other agreement shall control.
(c) The
Escrow Agent may rely upon, and shall not be liable for acting or refraining from acting upon, any Release Notice or other written notice,
document, instruction or request furnished to it hereunder and reasonably believed by it to be genuine and to have been signed or presented
by the proper Party or Parties without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall not be
liable to any Party, any beneficiary, or other person or entity for refraining from acting upon any Release Notice or other written notice,
document, instruction or request furnished to it hereunder setting forth, claiming, containing, objecting to, or related to the transfer
or distribution of the Earnout Shares, or any portion thereof, unless such Release Notice or other written notice, document, instruction
or notice shall have been delivered to the Escrow Agent in accordance with Section 11 below and the Escrow Agent has been able to
satisfy any applicable security procedures as may be required hereunder and as set forth in Section 11. The Escrow Agent shall not
be under any duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request.
The Escrow Agent shall have no duty to solicit any receipt of Earnout Shares which may be due to it or the Escrow Account, nor shall the
Escrow Agent have any duty or obligation to confirm or verify the accuracy or correctness of any number or class of Earnout Shares deposited
with it hereunder.
(d) The
Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken by it in good faith except to the extent that a
final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s fraud, gross negligence or willful misconduct
was the primary cause of any loss to any Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder
directly or through affiliates or agents, and the Escrow Agent shall not be liable for any action taken, suffered or omitted to be taken
by any such attorney or agent in good faith, absent fraud, gross negligence, bad faith or willful misconduct (each as determined by a
final, nonappealable judgment of a court of competent jurisdiction) in the selection and continued employment thereof. The Escrow Agent
may consult with counsel, accountants and other skilled persons to be selected and retained by it. The Escrow Agent shall not be liable
for any action taken, suffered or omitted to be taken by it in accordance with, or in reasonable reliance upon, the advice or opinion
of any such counsel, accountants or other skilled persons. In the event that the Escrow Agent shall be uncertain or believe there is some
ambiguity as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party which, in its opinion,
conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action, and its sole obligation
shall be to keep safely all property held in escrow until it shall be given a direction in writing by the Parties which eliminates such
ambiguity or uncertainty to the satisfaction of Escrow Agent or by a final and non-appealable order or judgment of a court of competent
jurisdiction. To the extent practicable, the Parties agree to pursue any redress or recourse in connection with any dispute arising under
the Merger Agreement (other than with respect to a dispute involving the Escrow Agent) without making the Escrow Agent a party to the
same. Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, incidental,
punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow
Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
6. Succession.
(a) The
Escrow Agent may resign and be discharged from its duties or obligations hereunder by giving thirty (30) days advance notice (pursuant
to Section 10) in writing of such resignation to the Parties specifying a date when such resignation shall take effect. By delivery
of joint written instructions by the Parties to the Escrow Agent, the Parties shall have the right to terminate their appointment of the
Escrow Agent, or successor escrow agent, as Escrow Agent, upon thirty (30) days’ notice to the Escrow Agent. If the Escrow Agent
shall resign, be removed or otherwise become incapable of acting, the Parties shall appoint a successor to be the Escrow Agent. If the
Parties have failed to appoint a successor escrow agent prior to the expiration of thirty (30) days after giving notice of such removal
or following the receipt of the notice of resignation or incapacity, the Escrow Agent may petition any court of competent jurisdiction
for the appointment of a successor escrow agent within the relevant jurisdiction or for other appropriate relief, and any such resulting
appointment shall be binding upon all of the parties hereto. The Escrow Agent’s sole responsibility after such thirty (30) day notice
period expires shall be to hold the Earnout Shares (without any obligation to reinvest the same) and to deliver the same to a designated
substitute escrow agent as jointly instructed in writing by the Parties, if any, or in accordance with the directions of a final order
or judgment of a court of competent jurisdiction, at which time of delivery, the Escrow Agent’s obligations hereunder shall cease
and terminate, subject to the provisions of Section 8 hereunder. The Escrow Agent shall have the right to withhold monies or property
in an amount equal to any amount due and then owing to the Escrow Agent, plus any costs and expenses the Escrow Agent shall reasonably
believe may be incurred by the Escrow Agent that the Parties are obligated to indemnify or reimburse the Escrow Agent for pursuant to
this Agreement in connection with the termination of this Agreement, so long as the Escrow Agent has previously submitted a written invoice
in respect thereof to the Parties that the Parties have not paid within 30 days of receipt of such invoice.
(b) Any
entity into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any entity to which all or substantially
all the escrow business may be transferred, shall be the Escrow Agent under this Agreement without further action on the part of any party
hereto. The Escrow Agent shall promptly notify the Parties in the event this occurs.
(c) Every
successor escrow agent appointed hereunder shall execute, acknowledge and deliver to its predecessor, and also to the Parties, an instrument
in writing accepting such appointment hereunder, and thereupon such successor escrow agent, without any further action, shall become fully
vested with all the rights, immunities and powers and shall be subject to all of the duties and obligations, of its predecessor; and every
predecessor escrow agent shall deliver all property and moneys held by it hereunder to such successor escrow agent, at which time of delivery
the Escrow Agent’s obligations hereunder shall cease and terminate, subject to the provisions of Section 8.
7. Compensation
and Reimbursement. PubCo agrees to, other than those incurred in connection with the breach of this Agreement by the Holder Representative,
in which event the Holder Representative agrees to (a) pay the Escrow Agent upon execution of this Agreement, and from time to time
thereafter, all reasonable compensation for the services to be rendered hereunder by the Escrow Agent as described in Schedule 2 attached
hereto, and (b) pay or reimburse the Escrow Agent upon request for all reasonable and documented expenses, disbursements and advances,
including, without limitation, reasonable attorney’s fees and expenses, incurred or made by it in connection with the performance,
modification and termination of this Agreement.
8. Indemnity.
(a) The
Escrow Agent shall be indemnified and held harmless by PubCo and Sponsor, jointly and severally, from and against any expenses, including
counsel fees and disbursements, or loss suffered by the Escrow Agent in connection with any action, suit or other proceeding involving
any claim which in any way, directly or indirectly, arises out of or relates to this Agreement, the services of the Escrow Agent hereunder,
other than expenses or losses arising from the gross negligence or willful misconduct of the Escrow Agent. Promptly after the receipt
by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall notify
the other parties hereto in writing. In the event of the receipt of such notice, the Escrow Agent, in its sole discretion, may commence
an action in the Nature of Interpleader in any state of federal court located in New York County, State of New York. Notwithstanding the
foregoing, and except as provided in Section 7, as between themselves, the Parties agree that any Agent Claims payable hereunder
shall be paid (or reimbursed, as applicable): (a) in the case that the Agent Claim is not attributable to actions or inactions of
any particular Party, by PubCo; and (b) in the event that the Agent Claim is attributable to the actions or inactions of a certain
Party, by such Party (and such Party shall reimburse the other Party, in the event that such other Party(ies) has made indemnification
payments under this Section 8(a) in respect of such Agent Claim).
(b) The
Escrow Agent shall not be liable for any action taken or omitted by it in good faith and in the exercise of its own best judgement, and
may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including
counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the
validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is
believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be
bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced by a writing
delivered to the Escrow Agent are affected, unless it shall have given its prior written consent thereto.
(c) The
Escrow Agent shall not be liable for any action taken by it in good faith and believed by it to be authorized or within the rights or
powers conferred upon it by this Agreement, and may consult with counsel of its own choice and shall have full and complete authorization
and indemnification, for any action take or suffered by it hereunder in good faith and in accordance with the opinion of such counsel.
(d) For
the avoidance of doubt, this Section 8 shall survive termination of this Agreement or the resignation, replacement or removal of
the Escrow Agent for any reason.
9. Patriot
Act Disclosure/Taxpayer Identification Numbers/Tax Reporting.
(a) Patriot
Act Disclosure. Section 326 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (“USA PATRIOT Act”) requires the Escrow Agent to implement reasonable procedures to
verify the identity of any person that opens a new account with it. Accordingly, the Parties acknowledge that Section 326 of the
USA PATRIOT Act and the Escrow Agent’s identity verification procedures require the Escrow Agent to obtain applicable information
which is required to confirm the Parties’ identity including without limitation name, address and organizational documents (“identifying
information”). The Parties agree to provide the Escrow Agent with and consent to the Escrow Agent obtaining from third parties
any such identifying information required as a condition of opening an account with or using any service provided by the Escrow Agent
for the purposes of this Agreement.
(b) Certification
and Tax Reporting. The Parties have provided, or promptly following the date hereof will provide, the Escrow Agent with their respective
fully executed Internal Revenue Service (“IRS”) Form W-8, or W-9. The Escrow Agent shall make such reports to
the applicable tax authorities as directed by PubCo and shall have no obligation under this Agreement to make any other reports with respect
to taxes. If required by law, the Escrow Agent shall withhold any taxes it deems appropriate in the absence of proper tax documentation
or as required by law, and shall remit such taxes to the appropriate authorities.
10. Notices.
Except for communications from the Parties setting forth, claiming, containing, objecting to, or in any way related to the transfer or
distribution of funds, including but not limited to funds transfer instructions (all of which are specifically governed by Section 11
below), any notice hereunder shall be sent in writing, addressed as specified below, and shall be deemed given: (a) if by hand or
nationally recognized overnight courier service, by 5:00 PM Eastern Time on a Business Day, addressee’s day and time, on the date
of delivery, and if delivered after 5:00 PM Eastern Time, on the first Business Day after such delivery; (b) if by electronic mail
or facsimile, on the date of transmission with affirmative confirmation of receipt; or (c) three (3) Business Days after mailing
by prepaid certified or registered mail, return receipt requested, and notices shall be addressed to the respective parties as follows
(excluding telephone numbers, which are for convenience only), or to such other address as a party shall specify to the others in accordance
with these notice provisions:
If to the Holder Representative:
[Name]
[Address]
[Address]
Attention:
E-mail:
With a copy (which shall not constitute notice) to:
[Name]
[Address]
[Address]
Attention:
E-mail:
If to PubCo:
Set Jet, Inc.
15011 North 75th Street
Scottsdale, Arizona 895260
Attn: Tom Smith
E-mail: tom@setjet.com
with a copy (which shall not constitute notice) to:
Snell & Wilmer LLP
One East Washington Street
Suite 2700
Phoenix, Arizona 85004
Attn: Dan Mahoney
E-mail: dmahoney@swlaw.com
and
Snell & Wilmer LLP
350 S Grand Avenue
Suite 3100
Los Angeles, CA 90071
Attn: Joshua Schneiderman
E-mail: jschneiderman@swlaw.com
If to Sponsor
Revelstone Capital, LLC
14350 Myford Rd
Irvine, CA 92606
Attn: Morgan Callagy
E-mail: morgan@revelstonecap.com
with a copy (which shall not constitute notice) to:
Thomas P. Smith
[Address]
[Address]
Attention:
E-mail:
If to the Escrow Agent:
Continental Stock Transfer & Trust Company
1 State Street
30th Floor
New York, NY 10004-1561
Attention: Account Administration
E-mail: accountadmin@continentalstock.com
Telephone: 212-509-4000
11. Security
Procedures.
(a) Notwithstanding
anything to the contrary as set forth in this Agreement, any instructions setting forth, claiming, containing, objecting to, or in any
way related to the transfer or distribution of the Earnout Shares, including but not limited to any such instructions that may otherwise
be set forth in a Release Notice or other written notice, document, instruction or request permitted pursuant to Section 4 of this
Agreement, may be given to the Escrow Agent only by confirmed facsimile or other electronic transmission (including e-mail) and no instruction
for or related to the transfer or distribution of the Earnout Shares, or any portion thereof, shall be deemed delivered and effective
unless the Escrow Agent actually shall have received such instruction by facsimile or other electronic transmission (including e-mail)
at the number or e-mail address provided to the Parties by the Escrow Agent in accordance with Section 10 and as further evidenced
by a confirmed transmittal to that number or e-mail address.
(b) In
the event transfer instructions are so received by the Escrow Agent by facsimile or other electronic submission (including e-mail), the
Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on Schedule
1 hereto, and the Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated. The persons
and telephone numbers for call-backs may be changed only in a writing actually received and acknowledged by the Escrow Agent. If the Escrow
Agent is unable to reach the Holder Representative after a reasonable amount of time, the Escrow Agent is hereby authorized both to receive
written instructions from and seek written confirmation of such instructions by any one or more of Sponsor’s or PubCo’s executive
officers (“Executive Officers”), as the case may be, which shall include the titles of Chief Executive Officer and
Chief Financial Officer, as the Escrow Agent may select. Such Executive Officer shall deliver to the Escrow Agent a fully executed incumbency
certificate, and the Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer as confirmation on behalf
of the Holder Representative.
(c) Notwithstanding
anything to the contrary herein, the Escrow Agent shall only deliver or distribute the Earnout Shares upon receipt of and in accordance
with the delivery instructions set forth in the applicable Release Notice.
(d) The
Parties acknowledge that the security procedures set forth in this Section 11 are commercially reasonable.
12. Compliance
with Court Orders. In the event that any escrow or trust property shall be attached, garnished or levied upon by any court order,
or the delivery thereof shall be stayed or enjoined by an order of a court, or any order, judgment or decree shall be made or entered
by any court affecting the property deposited under this Agreement, the Escrow Agent is hereby expressly authorized, in its sole discretion,
to obey and comply with all writs, orders, judgments or decrees so entered or issued, which it is advised by legal counsel of its own
choosing is binding upon it, whether with or without jurisdiction, and in the event that the Escrow Agent obeys or complies with any such
writ, order, judgment or decree, it shall not be liable to any of the parties hereto or to any other person, entity, firm or corporation,
by reason of such compliance notwithstanding such writ, order or decree be subsequently reversed, modified, annulled, set aside or vacated.
13. Miscellaneous.
(a) Amendment.
Except for transfer instructions as provided in Section 11, the provisions of this Agreement may be waived, altered, amended or supplemented,
in whole or in part, only by a writing signed by the parties hereto.
(b) Assignment.
Neither this Agreement nor any right, obligation or interest hereunder may be assigned in whole or in part by any party hereto, except
as provided in Section 6, without the prior written consent of all of the other parties hereto.
(c) Governing
Law; Jurisdiction. This Agreement shall be governed by and construed under the laws of the State of New York, without regard to principles
of law (including conflicts of law) that will require the application of the laws of any other jurisdiction. Each party to this Agreement
irrevocably waives any objection on the grounds of venue, forum non-conveniens, lack of jurisdiction or any similar grounds and irrevocably
consents to service of process by mail or in any other manner permitted by applicable law and consents to the jurisdiction of any court
of the State of New York or United States federal court located in the State of New York. The parties to this Agreement further hereby
waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement.
(d) Force
Majeure. No party to this Agreement is liable to any other party hereto for losses due to, or if it is unable to perform its obligations
under the terms of this Agreement because of acts reasonably beyond its control including, without limitation, acts of God, fire, terrorism,
disease, pandemic, floods, strikes, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities,
or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, war,
or civil unrest; provided, that the Escrow Agent shall use commercially reasonable efforts to resume performance as soon as practicable.
If any such act occurs, then the Escrow Agent shall give, as promptly as practicable, written notice to the Parties, stating the nature
of such act and any action being taken to avoid or minimize its effect.
(e) Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. All signatures of the parties to this Agreement may be transmitted by facsimile or pdf (including
via e-mail). A signature to this Agreement transmitted electronically shall have the same authority, effect, and enforceability as an
original signature, and will be binding and effective upon such party when a counterpart shall have been signed by each of the parties
hereto and delivered to the other parties hereto.
(f) Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable by reason of any applicable law of a jurisdiction, then the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
(g) Interpretation.
When a reference is made in this Agreement to Sections, such reference shall be to a Section of this Agreement unless otherwise indicated.
Whenever the words “include,” “includes” or “including” are used in this Agreement they shall be deemed
to be followed by the words “without limitation.” The table of contents and headings set forth in this Agreement are for convenience
of reference purposes only and shall not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any
term or provision hereof. All references to currency, monetary values and dollars set forth herein shall mean U.S. dollars. The Parties
agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application
of any Law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed
against the party drafting such agreement or document.
(h) Enforcement,
Remedies and Compliance. A person or entity who is not a party to this Agreement shall have no right to enforce any term of this Agreement.
Each Party represents, warrants and covenants that each document, notice, instruction or request provided by such Party to the Escrow
Agent shall comply with applicable laws and regulations. Where, however, the conflicting provisions of any such applicable law may be
waived, they are hereby irrevocably waived by the parties hereto to the fullest extent permitted by law, to the end that this Agreement
shall be enforced as written. Except as expressly provided in Section 8 above, nothing in this Agreement, whether express or implied,
shall be construed to give to any person or entity other than the Escrow Agent and the Parties any legal or equitable right, remedy, interest
or claim under or in respect of this Agreement or any funds escrowed hereunder. Except as otherwise expressly provided herein or as between
the applicable Parties in the Merger Agreement, any and all remedies herein expressly conferred upon a party hereto will be deemed cumulative
with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party hereto of
any one remedy will not preclude the exercise of any other remedy.
(i) Waiver
of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. EACH PARTY HERETO HEREBY FURTHER AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES HERETO MAY FILE AN ORIGINAL
COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY HERETO WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE SUCH WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY,
AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 13(i).
(j) Publicity.
Except as may be required by applicable law (including securities laws), court order, regulatory authority (including a securities authority)
or as shall be required or desirable to be presented by a party to any tax authority of such party, none of the parties hereto shall publicly
disclose, issue a news release, public announcement, advertisement, or other form of publicity concerning the existence of this Agreement
or the services to be provided hereunder without obtaining the prior written approval of the other parties hereto, which may be withheld
in the other parties’ sole discretion; provided that the Escrow Agent may use PubCo’s name in its customer lists or otherwise
as required by applicable law or regulation.
(k) Successors.
All the covenants and provisions of this Agreement by or for the benefit of the parties hereto shall bind and inure to the benefit of
their respective permitted successors and assigns hereunder.
(l) Third
Party Beneficiaries. The provisions of this Agreement are intended to benefit only the parties hereto and their respective permitted
successors and assigns. No rights shall be granted to any other person or entity by virtue of this Agreement, and there are no third party
beneficiaries hereof.
(m) Survival.
Notwithstanding anything to the contrary, all provisions regarding indemnification, liability and limits thereon, compensation and expenses
(with respect to any fees or expenses payable in respect of the period preceding the termination or expiry of this Agreement) and confidentiality
shall survive the termination or expiration of this Agreement. For the avoidance of doubt, Section 6, Section 7 (with respect
to any outstanding fees or expenses payable in respect of the period preceding the termination or expiry of this Agreement), Section 8,
and Section 13 shall survive termination of this Agreement or the resignation, replacement or removal of the Escrow Agent for any
reason.
(n) Merger
of Agreement. This Agreement together with the Merger Agreement constitutes the entire agreement between the parties hereto related
to the Earnout Shares and supersedes any prior agreement with respect to the subject matter hereof, whether oral or written.
(o) No
Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event
any ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by all parties hereto,
and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this
Agreement.
* * * * *
IN WITNESS WHEREOF,
the parties hereto have executed this Earnout Escrow Agreement as of the date set forth above.
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SET JET, INC., a Delaware corporation |
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By: |
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Name: |
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Title: |
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REVELSTONE CAPITAL, LLC, a Delaware
limited liability company |
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By: |
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Name: |
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Title: |
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Thomas P. Smith, solely in its capacity
as the Holder Representative |
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By: |
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Name: |
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Title: |
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Continental Stock Transfer &
Trust Company |
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By: |
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Name: |
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Title: |
Signature
page to Earnout Escrow Agreement
Schedule 1
Security Procedures
Schedule 2
Compensation and Reimbursement
Schedule 3
Approved Banks
Exhibit A
Earnout Shares
THIRD
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
REVELSTONE CAPITAL ACQUISITION CORP.
Revelstone Capital Acquisition
Corp., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), hereby certifies
as follows:
ONE: The
original certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on April 5,
2021, under the name “Revelstone Capital Acquisition Corp.” (the “Original Certificate”). The Original
Certificate was amended and restated by the amended and restated certificate of incorporation of the Corporation filed with the office
of the Secretary of State of the State of Delaware on May 24, 2021 (the “Amended and Restated Certificate”). The
Amended and Restated Certificate was amended and restated by the second amended and restated certificate of incorporation of the Corporation
filed with the office of the Secretary of State of the State of Delaware on December 16, 2021, as amended by the certificate of amendment
to the certificate of incorporation of the Corporation filed with the Secretary of State of the State of Delaware on June 21, 2021
and as amended by the certificate of amendment to the certificate of incorporation filed with the Secretary of the State of Delaware on
[●], 20231 (the “Second Amended and Restated
Certificate”).
TWO: This
third amended and restated certificate of incorporation of the Corporation (the “Third Amended and Restated Certificate”),
which both restates and further amends the provisions of the Second Amended and Restated Certificate, has been duly adopted by the Board
of Directors (the “Board of Directors”) and the stockholders of the Corporation in accordance with Sections 228, 242
and 245 of the General Corporation Law of the State of Delaware (the “DGCL”).
THREE: Effective
as of [●], 2023, the text of the Second Amended and Restated Certificate of the Corporation is hereby amended and restated in its
entirety as follows:
ARTICLE I
name
The
name of the Corporation is Set Jet, Inc.
ARTICLE II
registered
office and agent
The address of the Corporation’s
registered office in the State of Delaware is 3411 Silverside Road, Tatnall Building, #104, Wilmington, County of New Castle, State of
Delaware, 19810. The name of its registered agent in the State of Delaware at such address is Corporate Creations Network Inc.
1
NTD: The date to be inserted here is the date of the amendment to be filed in connection with extending the business combination
consummation date.
ARTICLE III
purpose
The purpose of the Corporation
is to engage in any lawful act or activity for which corporations may be organized under the DGCL.
ARTICLE IV
capital
stock
Section 4.1 Authorized
Shares. This Corporation is authorized to issue [●] shares of Class A Common Stock, par value $0.0001 per share (the “Common
Stock”), and [●] shares of Preferred Stock, par value $0.0001 per share (the “Preferred Stock”).
Section 4.2 Vote
to Increase or Decrease Authorized Shares. The number of authorized shares of Preferred Stock or Common Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting
power of all of the outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class, without
a separate class vote of the holders of the Preferred Stock, or any series thereof, irrespective of the provisions of Section 242(b)(2) of
the DGCL, unless a vote of any such holders is required pursuant to the terms of any Preferred Stock Designation (as defined below).
Section 4.3 Rights
of Preferred Stock. The Board of Directors is authorized, subject to any limitations prescribed by law, to provide for the issuance
of shares of Preferred Stock in series, and by filing a certificate pursuant to the applicable law of the State of Delaware (such certificate
being hereinafter referred to as a “Preferred Stock Designation”), to establish from time to time the number of shares
to be included in each series, and to fix the designations, powers, preferences and rights of the shares of each such series and any qualifications,
limitations or restrictions thereof.
Section 4.4 Rights
of Common Stock. Except as shall otherwise be stated herein or as otherwise required by applicable law, all shares of Common Stock
shall be identical in all respects and shall entitle the holders thereof to the same rights and privileges, subject to the same qualifications,
limitations and restrictions. The Common Stock shall be subject to all of the rights, privileges, preferences and priorities of the Preferred
Stock.
(a) Voting
Rights. Except as otherwise provided herein or required by law, each holder of Common Stock shall be entitled to one vote for each such
share on any matter that is submitted to a vote of stockholders and shall otherwise have the rights conferred by applicable law in respect
of such shares.
(b) Dividends.
Subject to the rights of each series of the Preferred Stock, dividends, or other distributions in cash, securities or other property of
the Corporation may be declared and paid or set apart for payment upon the Common Stock by the Board of Directors from time to time out
of any assets or funds of the Corporation legally available for the payment of dividends, and all holders of Common Stock shall be entitled
to participate in such dividends ratably on a per share basis.
(c) Liquidation.
Upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, and after the holders of the Preferred
Stock of each series shall have been paid in full the amounts to which they respectively shall be entitled in preference to the Common
Stock in accordance with the terms of any outstanding Preferred Stock and applicable law, the remaining net assets and funds of the Corporation
shall be distributed pro rata to the holders of the Common Stock and the holders of any Preferred Stock, but only to the extent that
the holders of any Preferred Stock shall be entitled to participate in such distributions in accordance with the terms of any outstanding
Preferred Stock or applicable law. A consolidation or merger of the Corporation with or into another corporation or corporations or a
sale, whether for cash, shares of stock, securities or properties, or any combination thereof, of all or substantially all of the assets
of the Corporation shall not be deemed or construed to be a liquidation, dissolution or winding up of the Corporation within the meaning
of this Section 4(c) of this ARTICLE IV.
(d) No
Pre-Emptive Rights. No holder of Common Stock shall be entitled, as such, as a matter of right, to subscribe for or purchase any part
of any new or additional issue of stock of any class or series whatsoever or of securities convertible into stock of any class whatsoever,
whether now or hereafter authorized and whether issued for cash or other consideration, or by way of dividend.
ARTICLE V
board
of directors
Section 5.1 Board
Power. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition
to the powers and authority expressly conferred upon them by statute or by this Third Amended and Restated Certificate or the Bylaws of
the Corporation (the “Bylaws”), the Board of Directors is hereby empowered to exercise all such powers and do all such
acts and things as may be exercised or done by the Corporation.
Section 5.2 Board
Size. Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances,
the total number of authorized directors constituting the Board of Directors shall be fixed from time to time exclusively by the Board
of Directors pursuant to a resolution adopted by a majority of the directors then in office.
Section 5.3 Election
of Directors. Unless and except to the extent that the Bylaws shall so require, the election of directors of the Corporation need
not be by written ballot. The vote required for election of a director by the stockholders at a meeting of stockholders shall, except
in a contested election, be the affirmative vote of a majority of the votes cast in favor or against the election of a nominee at a meeting
of stockholders. In a contested election, the directors shall be elected by a plurality of the votes cast at a meeting of stockholders
by the holders of stock entitled to vote in such election. For purposes of this ARTICLE V, Section 3, (a) a “contested
election” means that as of the record date for the meeting at which the election is held, there are more nominees for election than
positions on the Board of Directors and (b) a “majority of the votes cast” means that the number of votes cast in favor
of the election of a director exceeds the number of votes cast against the election of that director.
Section 5.4 Term
of Office of Directors. The directors shall be elected or appointed for a term of office continuing until the next annual meeting
of stockholders of the Corporation. Each director shall hold office until such director’s successor is elected and qualified, or
until such director’s earlier death, resignation, disqualification or removal from office. Any director may resign at any time upon
notice to the Corporation given in writing by any electronic transmission permitted in the Bylaws or in accordance with applicable law.
Section 5.5 Removal
of Directors. Any director may be removed from office by the stockholders of the Corporation only for cause by the affirmative vote
of at least a majority of the voting power of the outstanding shares of capital stock of the Corporation entitled to vote generally in
the election of directors, voting together as a single class.
Section 5.6 Vacancies.
Vacancies occurring on the Board of Directors for any reason and newly created directorships resulting from an increase in the authorized
number of directors shall be filled only by the affirmative vote of a majority of the remaining directors then in office, although less
than a quorum, or by a sole remaining director. Any director elected in accordance with the preceding sentence shall hold office until
the next annual meeting of stockholders of the Corporation and until such director’s successor is elected and qualified, or until
such director’s earlier death, resignation, disqualification or removal from office. No decrease in the number of directors constituting
the Board of Directors shall shorten the term of any incumbent director.
ARTICLE VI
AMENDMENT
OF THE GOVERNING DOCUMENTS
Section 6.1 Amendment
of the Certificate of Incorporation. Except as expressly provided herein, the Corporation reserves the right to amend or repeal any
provision contained in this Third Amended and Restated Certificate, or any amendment thereto, in the manner now or hereafter provided
by statute, and any and all rights conferred upon the stockholders herein is subject to this reservation.
Section 6.2 Amendment
of Bylaws. In furtherance and not in limitation of the powers conferred by the DGCL, the Board of Directors is expressly authorized
to adopt, alter, amend or repeal the Bylaws. The affirmative vote of at least a majority of the Board of Directors then in office shall
be required in order for the Board of Directors to adopt, amend, alter or repeal the Bylaws. The Bylaws may also be adopted, amended or
repealed by the affirmative vote of at least a majority of the voting power of the outstanding shares of capital stock of the Corporation
entitled to vote upon such adoption, amendment or repeal, voting as a single class. No Bylaw hereafter legally adopted, amended, altered
or repealed shall invalidate any prior act of the directors or officers of the Corporation that would have been valid if such Bylaw had
not been adopted, amended, altered or repealed.
ARTICLE VII
stockholder
ACTION
Section 7.1 No
Cumulative Voting. No stockholder will be permitted to cumulate votes at any election of directors.
Section 7.2 Special
Meetings. Special meetings of stockholders may be called only by (a) the Board of Directors pursuant to a resolution adopted
by a majority of the directors then in office; (b) the Chairman of the Board of Directors; (c) the Chief Executive Officer of
the Corporation; or (d) the Secretary of the Corporation at the request of the holders of a majority of the voting power of the issued
and outstanding shares of capital stock of the Corporation then entitled to vote.
Section 7.3 No
Stockholder Action by Written Consent Without a Meeting. Subject to the rights of the holders of any series of Preferred Stock, any
action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting
of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders.
ARTICLE VIII
limitation
of director liability and indemnification
Section 8.1 Director
Exculpation. To the fullest extent permitted by the DGCL, as the same exists or as may hereafter be amended, no director of the Corporation
shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. If
the DGCL is amended, after approval by the stockholders of this ARTICLE VIII, to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to
the fullest extent permitted by the DGCL, as so amended.
Section 8.2 Indemnification.
To the fullest extent permitted by the applicable laws of the State of Delaware, as the same exists or may hereafter be amended, the Corporation
shall indemnify and hold harmless, any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit, arbitration, alternative dispute resolution mechanism, investigation, inquiry, judicial, administrative or legislative
hearing, or any other threatened, pending or completed proceeding, whether brought by or in the right of the Corporation (including whether
to procure a judgment in its favor) or otherwise, whether civil, criminal, administrative, legislative, investigative or other nature
and including any and all appeals (collectively, each a “Proceeding”) by reason of the fact that such person is or
was a director or officer of the Corporation, or while a director of the Corporation or officer of the Corporation is or was serving at
the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or
other enterprise (an “indemnitee”), against all liability and loss suffered and expenses, including, without limitation,
attorneys’ fees, judgments, fines, ERISA excise taxes, damages, claims, penalties and amounts paid in settlement actually and reasonably
incurred by such indemnitee in connection with such Proceeding. Expenses (including attorneys’) fees incurred by an indemnitee in
defending any Proceeding shall be paid by the Corporation in advance of the final disposition of such Proceeding upon receipt of a written
request therefor and an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it shall ultimately be determined
by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal that the indemnitee is
not entitled to be indemnified under this ARTICLE VIII, Section 2 or otherwise. The rights to indemnification and advancement
of expenses conferred by this ARTICLE VIII, Section 2 shall be contractual rights and such rights shall continue as to
an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors
and administrators. Notwithstanding the foregoing provisions of this ARTICLE VIII, Section 2, except for Proceedings
to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to an indemnitee
in connection with a Proceeding (or part thereof) initiated by such indemnitee only if such Proceeding (or part thereof) was authorized
by the Board of Directors. The indemnification and advancement of expenses provided by, or granted pursuant to, this ARTICLE VIII,
Section 2 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses
may be entitled under this Amended and Restate Certificate as it may be further amended from time to time, the Bylaws or any statute,
agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and
as to action in another capacity while holding such office. The Corporation is specifically authorized to enter into individual contracts
with any or all of its directors, officers, employees or agents respecting indemnification and advancement of expenses, to the fullest
extent not prohibited by the DGCL or other applicable law.
Section 8.3 Vested
Rights. Any repeal or amendment of this ARTICLE VIII by the stockholders of the Corporation or by changes in law, or the
adoption of any other provision of this Amended and Restated Certificate inconsistent with this ARTICLE VIII, shall, unless
otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide
broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect
any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any
Proceeding (regardless of when such Proceeding is first threatened, commenced or completed) arising out of, or related to, any act or
omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.
Section 8.4 No
Limitation. This ARTICLE VIII shall not limit the right of the Corporation, to the extent and in the manner authorized
or permitted by law, to indemnify and to advance expenses to persons other than indemnitees.
ARTICLE IX
forum
selection
Unless the Corporation consents
in writing to the selection of an alternative forum, (a) the Court of Chancery (the “Chancery Court”) of the State
of Delaware (or, in the event that the Chancery Court does not have jurisdiction, the federal district court for the District of Delaware
or other state courts of the State of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any
derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary
duty owed by, or any other wrongdoing by, any current or former director, officer, other employee or stockholder of the Corporation, (iii) any
action asserting a claim against the Corporation arising pursuant to any provision of the DGCL, this Third Amended and Restated Certificate
or the Bylaws or as to which the DGCL confers jurisdiction on the Court of Chancery, (iv) any action to interpret, apply, enforce
or determine the validity of any provisions of this Third Amended and Restated Certificate or the Bylaws, or (v) any other action
asserting a claim against the Corporation governed by the internal affairs doctrine and (b) notwithstanding anything to the contrary
herein, the federal district court for the District of Delaware (or, in the event such court does not have jurisdiction, the federal district
courts of the United States) shall be the exclusive forum for the resolution of any action, suit or proceeding asserting a cause of action
arising under the Securities Act of 1933, as amended. If any action the subject matter of which is within the scope of the preceding sentence
is filed in a court other than the applicable courts specified in the immediately preceding sentence (a “Foreign Action”)
in the name of any stockholder, such stockholder shall, to the fullest extent permitted by applicable law, be deemed to have consented
to (x) the personal jurisdiction of the state and federal courts located within the State of Delaware in connection with any action
brought in any such court to enforce clause (a) the preceding sentence, (y) the personal jurisdiction of the federal district
courts of the United States in connection with any action brought in any such court to enforce clause (b) the preceding sentence,
and (z) having service of process made upon such stockholder in any such action by service upon such stockholder’s counsel
in the Foreign Action as agent for such stockholder. This provision will not apply to claims arising under the Securities Exchange Act
of 1934, as amended, or other federal securities laws for which there is exclusive federal jurisdiction. Any person or entity purchasing
or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and to have consented
to the provisions of this ARTICLE IX.
ARTICLE X
miscellaneous
If any provision of this Third
Amended and Restated Certificate becomes or is declared on any ground by a court of competent jurisdiction to be illegal, unenforceable
or void, portions of such provision, or such provision in its entirety, to the extent necessary, shall be severed from this Third Amended
and Restated Certificate, and the court shall replace such illegal, void or unenforceable provision of this Third Amended and Restated
Certificate with a valid and enforceable provision that most accurately reflects the Corporation’s intent, in order to achieve,
to the maximum extent possible, the same economic, business and other purposes of the illegal, void or unenforceable provision. The balance
of this Third Amended and Restated Certificate shall be enforceable in accordance with its terms.
* * *
IN WITNESS WHEREOF,
this Third Amended and Restated Certificate has been executed by a duly authorized officer of this Corporation on this ___day of [●],
2023.
Signature Page - Third Amended and Restated Certificate of Incorporation
AMENDED AND RESTATED BYLAWS OF SET JET, INC.
(Effective as of [●], 2023)
ARTICLE 1
CORPORATE
OFFICES
Section 1.1 Registered
Office. The registered office of Set Jet, Inc. (the “Corporation”) shall be fixed in the Corporation’s
certificate of incorporation. References in these bylaws to the certificate of incorporation, as the same shall be amended and/or restated
from time to time (the “Certificate”), shall include the terms of any certificate of designations of any series of
preferred stock.
Section 1.2 Other
Offices. The Corporation also may have offices at such other places, both within and without the State of Delaware, as the Board of
Directors of the Corporation (the “Board”) may from time to time determine or the business of the Corporation
may require.
ARTICLE 2
MEETINGS
OF STOCKHOLDERS
Section 2.1 Time
and Place of Meetings. Meetings of stockholders shall be held at any time and place, within or without the State of Delaware, designated
by the Board. In the absence of any such designation, stockholders’ meetings shall be held at the Corporation’s principal
executive office.
Section 2.2 Annual
Meeting. The annual meeting of stockholders shall be held on such date, at such time and at such place within or without the State
of Delaware as shall be designated from time to time by the Board and stated in the Corporation’s notice of the meeting. At the
annual meeting, directors shall be elected and any other business properly brought before the meeting may be transacted.
Section 2.3 Special
Meeting.
(i)
A special meeting of the stockholders, other than those required by statute, may be called at any time only in the manner provided
in the Certificate. The Board may cancel, postpone or reschedule any previously scheduled special meeting at any time, before or
after the notice for such meeting has been sent to the stockholders.
(ii) The
notice of a special meeting shall include the purpose for which the meeting is called. Only such business shall be conducted at a special
meeting of stockholders as shall have been set forth in the notice of such meeting. Nothing contained in this Section 2.3(ii) shall
be construed as limiting, fixing or affecting the time when a meeting of stockholders called by action of the Board may be held.
Section 2.4 Advance
Notice Procedures.
(i)
Advance Notice of Stockholder Business. At an annual meeting of the stockholders, only such business shall be conducted as shall
have been properly brought before the meeting. To be properly brought before an annual meeting, business must be brought:
(A) pursuant to the Corporation’s notice of meeting (or any supplement thereto) or proxy materials with respect to such
meeting, (B) by or at the direction of the Board (or any authorized committee thereof), or (C) by a stockholder of the
Corporation who (1) is a stockholder of record at the time of the giving of the notice required by Sections
2.4(i)-(iii) and on the record date for the determination of stockholders entitled to vote at the annual meeting and
(2) has timely complied in proper written form with the procedures set forth in Sections 2.4(i)-(iii). In addition, for
business to be properly brought before an annual meeting by a stockholder, such business must be a proper matter for stockholder
action pursuant to these bylaws and applicable law. Except for proposals properly made in accordance with Rule 14a-8 under the
Securities Exchange Act of 1934, and the rules and regulations thereunder (as so amended and inclusive of such rules and
regulations) (the “1934 Act”), and included in the notice of meeting given by or at the direction of the Board,
for the avoidance of doubt, clause (C) above shall be the exclusive means for a stockholder to bring business before an annual
meeting of stockholders.
(a) For
business to be properly brought before an annual meeting by a stockholder pursuant to clause Section 2.4(i)(C) above,
a stockholder’s notice must set forth all information required under this Section 2.4(i) and must be received by
the Secretary of the Corporation at the principal executive offices of the Corporation not later than the 90th day nor earlier than the
120th day before the one-year anniversary of the preceding year’s annual meeting; provided, however, that in the event that no annual
meeting was held in the previous year or if the date of the annual meeting is advanced by more than 30 days prior to or delayed by more
than 60 days after the one-year anniversary of the date of the previous year’s annual meeting, then, for notice by the stockholder
to be timely, it must be received by the Secretary of the Corporation not earlier than the close of business on the 120th day prior to
such annual meeting and not later than the close of business on the later of (i) the 90th day prior to such annual meeting or (ii) the
tenth day following the day on which a Public Announcement (as defined below) of the date of such annual meeting is first made. In no
event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period for the giving
of a stockholder’s notice as described in this Section 2.4(i)(a). “Public Announcement” shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated Press or a comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the 1934
Act.
(b) To
be in proper written form, a stockholder’s notice to the Secretary of the Corporation must set forth as to each matter of business
the stockholder intends to bring before the annual meeting: (1) a brief description of the business intended to be brought before
the annual meeting and the reasons for conducting such business at the annual meeting, (2) the name and address, as they appear on
the Corporation’s books, of the stockholder proposing such business and any Stockholder Associated Person (as defined below), (3) the
class or series and number of shares of the Corporation that are held of record or are beneficially owned, directly or indirectly, by
the stockholder or any Stockholder Associated Person and any Derivative Instruments (as defined below) held or beneficially owned, directly
or indirectly, by the stockholder or any Stockholder Associated Person, (4) whether and the extent to which any hedging or other
transaction or series of transactions has been entered into by or on behalf of such stockholder or any Stockholder Associated Person with
respect to any securities of the Corporation, and a description of any other agreement, arrangement or understanding (including any short
position or any borrowing or lending of shares), the effect or intent of which is to mitigate loss to, or to manage the risk or benefit
from share price changes for, or to increase or decrease the voting power of, such stockholder or any Stockholder Associated Person with
respect to any securities of the Corporation, (5) any proxy, contract, arrangement, understanding or relationship pursuant to which
the stockholder or a Stockholder Associated Person has a right to vote any shares of any security of the Corporation, (6) any rights
to dividends on the shares of the Corporation beneficially owned by the stockholder or a Stockholder Associated Person that are separated
or separable from the underlying shares of the Corporation, (7) any performance-related fees (other than asset-based fees) that the
stockholder or a Stockholder Associated Person is entitled to based on any increase or decrease in the value of shares of the Corporation
or Derivative Instruments, if any, as of the date of such notice, (8) any material interest of the stockholder or a Stockholder Associated
Person in such business and (9) a statement whether such stockholder or any Stockholder Associated Person will deliver a proxy statement
and form of proxy to holders of at least the percentage of the Corporation’s voting shares required under applicable law to carry
the proposal (such information provided and statements made as required by clauses (1) through (9), a “Business Solicitation
Statement”). In addition, to be in proper written form, a stockholder’s notice to the Secretary of the Corporation must
be supplemented not later than ten days following the record date for notice of the meeting to disclose the information contained in clauses
(3) through (7) above as of the record date for notice of the meeting. For purposes of this Section 2.4, a “Stockholder
Associated Person” of any stockholder shall mean (i) any person controlling, directly or indirectly, or acting in concert
with, such stockholder, (ii) any beneficial owner of shares of stock of the Corporation owned of record or beneficially by such stockholder
and on whose behalf the proposal or nomination, as the case may be, is being made, or (iii) any person controlling, controlled by
or under common control with such person referred to in the preceding clauses (i) and (ii). For purposes of this Section 2.4,
a “Derivative Instrument” shall mean any option, warrant, convertible security, stock appreciation right or similar
right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares
of the Corporation or with a value derived in whole or in part from the value of any class or series of capital stock of the Corporation
or otherwise.
(c) Without
exception, no business shall be conducted at any annual meeting except in accordance with the provisions set forth in this Section 2.4(i) and,
if applicable, Section 2.4(ii). In addition, business proposed to be brought by a stockholder may not be brought before the
annual meeting if such stockholder or a Stockholder Associated Person, as applicable, takes action contrary to the representations made
in the Business Solicitation Statement applicable to such business or if the Business Solicitation Statement applicable to such business
contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading.
The chairperson of the annual meeting shall, if the facts warrant, determine and declare at the annual meeting that business was not properly
brought before the annual meeting in accordance with the provisions prescribed by these bylaws, and, if the chairperson should so determine,
he or she shall so declare at the annual meeting that any such business not properly brought before the annual meeting shall not be conducted.
(ii) Advance
Notice of Director Nominations at Annual Meetings. Notwithstanding anything in these bylaws to the contrary, only persons who are
nominated in accordance with the procedures set forth in this Section 2.4(ii) shall be eligible for election or re-election
as directors at an annual meeting of stockholders. Nominations of persons for election or re-election to the Board shall be made at an
annual meeting of stockholders only (A) by or at the direction of the Board or (B) by a stockholder of the Corporation who (1) was
a stockholder of record at the time of the giving of the notice required by this Section 2.4(ii) and on the record date
for the determination of stockholders entitled to vote at the annual meeting and (2) has complied with the notice procedures set
forth in this Section 2.4(ii). In addition to any other applicable requirements, for a nomination to be made by a stockholder,
the stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation.
(a) To
comply with clause (B) of Section 2.4(ii) above, a nomination to be made by a stockholder must set forth all information
required under this Section 2.4(ii) and must be received by the Secretary of the Corporation at the principal executive
offices of the Corporation at the time set forth in, and in accordance with Section 2.4(i)(a).
(b) To
be in proper written form, such stockholder’s notice to the Secretary must set forth:
(1) as
to each person (a “nominee”) whom the stockholder proposes to nominate for election or re-election as a director: (A) the
name, age, business address and residence address of the nominee, (B) the principal occupation or employment of the nominee, (C) the
class or series and number of shares of the Corporation that are held of record or are beneficially owned, directly or indirectly, by
the nominee and any Derivative Instruments held or beneficially held of record or are beneficially owned, directly or indirectly, by the
nominee, (D) whether and the extent to which any hedging or other transaction or series of transactions has been entered into by
or on behalf of the nominee with respect to any securities of the Corporation, and a description of any other agreement, arrangement or
understanding (including any short position or any borrowing or lending of shares), the effect or intent of which is to mitigate loss
to, or to manage the risk or benefit of share price changes for, or to increase or decrease the voting power of the nominee, (E) any
proxy, contract, arrangement, understanding or relationship pursuant to which the nominee has a right to vote any shares of any security
of the Corporation, (F) any rights to dividends on the shares of the Corporation beneficially owned by the nominee that are separated
or separable from the underlying shares of the Corporation, (G) any performance-related fees (other than asset-based fees) that the
nominee is entitled to based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, if any,
as of the date of such notice, (H) a description of all arrangements or understandings between the stockholder and each nominee and
any other person or persons (naming such person or persons) pursuant to which the nominations are to be made by the stockholder, (I) a
written statement executed by the nominee acknowledging that as a director of the Corporation, the nominee will owe a fiduciary duty under
Delaware law with respect to the Corporation and its stockholders and (J) any other information relating to the nominee that would
be required to be disclosed about such nominee if proxies were being solicited for the election or re-election of the nominee as a director,
or that is otherwise required, in each case pursuant to Regulation 14A under the 1934 Act (including without limitation the nominee’s
written consent to being named in the proxy statement, if any, as a nominee and to serving as a director if elected or re-elected, as
the case may be); and
(2) as
to such stockholder giving notice, (A) the information required to be provided pursuant to clauses (2) through (7) of Section 2.4(i)(b) above,
and the supplement referenced in the second sentence of Section 2.4(i)(b) above (except that the references to “business”
in such clauses shall instead refer to nominations of directors for purposes of this paragraph), and (B) a statement whether such
stockholder or Stockholder Associated Person will deliver a proxy statement and form of proxy to holders of a number of the Corporation’s
voting shares reasonably believed by such stockholder or Stockholder Associated Person to be necessary to elect or re-elect such nominee(s) (such
information provided and statements made as required by clauses (A) and (B) above, a “Nominee Solicitation Statement”).
(c) At
the request of the Board, any person nominated by a stockholder for election or re-election as a director must furnish to the Secretary
of the Corporation (1) that information required to be set forth in the stockholder’s notice of nomination of such person as
a director as of a date subsequent to the date on which the notice of such person’s nomination was given, (2) a written questionnaire
with respect to the background and qualification of such person and the background of any other person or entity on whose behalf the nomination
is being made (which questionnaire shall be provided by the Secretary upon written request of any stockholder of record identified by
name within five business days of such written request), (3) such other information as may reasonably be required by the Corporation
to determine the eligibility of such proposed nominee to serve as an independent director or audit committee financial expert of the Corporation
under applicable laws, securities exchange rules or regulations, or any publicly-disclosed corporate governance guideline or committee
charter of the Corporation and (4) such information that could be material to a reasonable stockholder’s understanding of the
independence, or lack thereof, of such nominee. In the absence of the furnishing of such information if requested, such stockholder’s
nomination shall not be considered in proper form pursuant to this Section 2.4(ii).
(d) No
person shall be eligible for election or re-election as a director of the Corporation at an annual meeting of stockholders unless nominated
in accordance with the provisions set forth in this Section 2.4(ii). In addition, a nominee shall not be eligible for election
or re-election if a stockholder or Stockholder Associated Person, as applicable, takes action contrary to the representations made in
the Nominee Solicitation Statement applicable to such nominee or if the Nominee Solicitation Statement applicable to such nominee contains
an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading. The
chairperson of the annual meeting shall, if the facts warrant, determine and declare at the annual meeting that a nomination was not made
in accordance with the provisions prescribed by these bylaws, and if the chairperson should so determine, he or she shall so declare at
the annual meeting, and the defective nomination shall be disregarded.
(iii) Other
Requirements and Rights. In addition to the foregoing provisions of this Section 2.4, a stockholder must also comply with
all applicable requirements of state law and of the 1934 Act and the rules and regulations thereunder with respect to the matters
set forth in this Section 2.4. Nothing in this Section 2.4 shall be deemed to affect any rights of:
(i) a
stockholder to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 (or any successor
provision) under the 1934 Act; or
(ii) the
Corporation to omit a proposal from the Corporation’s proxy statement pursuant to Rule 14a-8 (or any successor provision) under
the 1934 Act.
Section 2.5 Notice
of Stockholders’ Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a written notice
of the meeting shall be given which shall state the place, date and hour of the meeting, the record date for determining the stockholders
entitled to vote at the meeting, if such date is different from the record date for determining stockholders entitled to notice of the
meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Except as otherwise provided
in the General Corporation Law of the State of the Delaware (the “DGCL”), the Certificate or these bylaws, the written
notice of any meeting of stockholders shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder
entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting.
Section 2.6 Quorum.
The holders of a majority of the aggregate voting power of the capital stock issued and outstanding and entitled to vote, present in person
or represented by proxy, shall constitute a quorum for the transaction of business at all meetings of the stockholders, except as otherwise
required by the DGCL, the Certificate or these bylaws. Where a separate vote by a class or series or classes or series is required, a
majority of the outstanding shares of such class or series or classes or series, present in person or represented by proxy, shall constitute
a quorum (as to such class or series) entitled to take action with respect to that vote on that matter, except as otherwise provided by
law, the Certificate or these bylaws. Abstentions and non-votes by brokers are counted as present for purposes of determining a quorum.
If a quorum is not present
or represented at any meeting of the stockholders, then either (i) the chairperson of the meeting, or (ii) the holders of a
majority of the shares entitled to vote at the meeting, present in person or represented by proxy, shall have power to adjourn the meeting
from time to time, without notice other than announcement at the meeting, until a quorum is present or represented. At such adjourned
meeting at which a quorum is present or represented, any business may be transacted that might have been transacted at the meeting as
originally noticed.
Section 2.7 Adjourned
Meeting; Notice. When a meeting is adjourned to another time and/or place, unless these bylaws otherwise require, notice need not
be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment
is for more than 30 days or a new record date for stockholders entitled to vote is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 2.8 Conduct
of Business. The chairperson of any meeting of stockholders shall determine the order of business and the procedure at the meeting,
including such regulation of the manner of voting and the conduct of business. The chairperson of any meeting of stockholders shall be
designated by the Board; in the absence of such designation, the Chairman of the Board, if any, the Chief Executive Officer (in the absence
of the chairperson) or the President (in the absence of the Chairman of the Board and the Chief Executive Officer), or in their absence
any other executive officer of the Corporation, shall serve as chairperson of the stockholder meeting.
Section 2.9 Voting.
(i) Voting
Rights. Except as may be otherwise provided by law, the Certificate or these bylaws, each stockholder shall be entitled to one vote
for each share of capital stock held by such stockholder. Any share of capital stock of the Corporation held by the Corporation shall
have no voting rights.
(ii) Vote
Required. Except as otherwise required by law, the Certificate or these bylaws, in all matters other than the election of directors,
the affirmative vote of a majority of the shares present in person or represented by proxy at the meeting and entitled to vote on the
subject matter shall be the act of the stockholders. Except as otherwise required by law, the Certificate or these bylaws, the vote required
for election of a director by the stockholders at a meeting of stockholders shall, except in a contested election, be the affirmative
vote of a majority of the votes cast in favor or against the election of a nominee at a meeting of stockholders. In a contested election,
the directors shall be elected by a plurality of the votes cast at a meeting of stockholders by the holders of stock entitled to vote
in such election. For purposes of Section 2.9(ii), (i) a “contested election” means that as of the record
date for the meeting at which the election is held, there are more nominees for election than positions on the Board of Directors and
(ii) a “majority of the votes cast” means that the number of votes cast in favor of the election of a director exceeds
the number of votes cast against the election of that director.
(iii) Abstentions
and Broker Non-Votes. In determining the number of votes cast for or against a proposal or nominee, shares abstaining from voting on a
matter will not be treated as a vote cast. A non-vote by a broker will be counted for purposes of determining a quorum but not for purposes
of determining the number of votes cast.
Section 2.10 No
Stockholder Action by Written Consent Without a Meeting. Subject to the rights of the holders of any series of preferred stock, any
action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting
of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders.
Section 2.11 Record
Dates.
(i) In
order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board and which record date shall not be more than 60 nor less than 10 days before the date of
such meeting. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of and to
vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or,
if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for determination of stockholders entitled to vote at the adjourned
meeting.
(ii) In
order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed,
the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto.
Section 2.12 Proxies.
Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by
proxy authorized by an instrument in writing or by a transmission permitted by law filed in accordance with the procedure established
for the meeting, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer
period. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212
of the DGCL. A written proxy may be in the form of a telegram, cablegram, or other means of electronic transmission permitted by law,
which results in a writing from such stockholder or by his attorney and delivered to the Secretary of the meeting.
Section 2.13 List
of Stockholders Entitled to Vote. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least
10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting; provided, however,
if the record date for determining the stockholders entitled to vote is less than 10 days before the meeting date, the list shall reflect
the stockholders entitled to vote as of the tenth day before the meeting date. The stockholder list shall be arranged in alphabetical
order and show the address of each stockholder and the number of shares registered in the name of each stockholder. The Corporation shall
not be required to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to
the examination of any stockholder for any purpose germane to the meeting for a period of at least 10 days prior to the meeting (i) at
a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting or (ii) during
ordinary business hours at the Corporation’s principal place of business.
ARTICLE 3
DIRECTORS
Section 3.1 Board
Power. The business and affairs of the Corporation shall be managed by or under the direction of the Board, except as may be otherwise
provided in the DGCL or the Certificate.
Section 3.2 Board
Size. The Board shall consist of no less than 3 members and no more than 5 members, each of whom shall be a natural person. The number
of directors shall be determined from time to time solely by resolution of the Board in accordance with the provisions of the Certificate.
No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of
office expires.
Section 3.3 Election,
Qualification and Term of Office of Directors. Except as provided in Section 3.4, each director, including a director
elected to fill a vacancy, shall hold office until the expiration of the term for which elected and until such director’s successor
is elected and qualified, or until such director’s earlier death, resignation, disqualification or removal from office. Directors
need not be stockholders unless so required by the Certificate or these bylaws. The Certificate or these bylaws may prescribe other qualifications
for directors.
Section 3.4 Removal
of Directors. Any director may be removed from office by the stockholders of the Corporation only for cause by the affirmative vote
of at least a majority of the voting power of the outstanding shares of capital stock of the Corporation entitled to vote generally in
the election of directors, voting together as a single class.
Section 3.5 Resignation
and Vacancies. Any director may resign at any time upon notice given in writing or by electronic transmission to the Corporation;
provided, however, that if such notice is given by electronic transmission, such electronic transmission must either set forth or be submitted
with information from which it can be determined that the electronic transmission was authorized by the director. A resignation is effective
when the resignation is delivered unless the resignation specifies a later effective date or an effective date determined upon the happening
of an event or events. Acceptance of such resignation shall not be necessary to make it effective.
Vacancies and newly created
directorships resulting from any increase in the authorized number of directors elected by all of the stockholders having the right to
vote as a single class shall be filled only by a majority of the directors then in office, although less than a quorum, or by a sole remaining
director. A person so elected by the directors then in office to fill a vacancy or newly created directorship shall hold office until
the next annual meeting of stockholders of the Corporation and until his or her successor is elected and qualified, or until such director’s
earlier death, resignation, disqualification or removal from office.
Section 3.6 Place
of Meetings; Meetings by Telephone. The Board may hold meetings, both regular and special, either within or without the State of Delaware.
Members of the Board, or any committee designated by the Board, may participate in a meeting of the Board, or any committee, by means
of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other,
and such participation in a meeting shall constitute presence in person at the meeting.
Section 3.7 Regular
Meetings. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined
by the Board.
Section 3.8 Special
Meetings; Notice. Special meetings of the Board for any purpose or purposes may be called at any time by the Chairman of the Board,
the Chief Executive Officer, the President, the Secretary or a majority of the authorized number of directors, at such times and places
as he or she or they shall designate. Notice of special meetings of the Board shall be given to each director at least 48 hours before
the date of the meeting in such manner as is determined by the Board.
Section 3.9 Quorum;
Voting. At all meetings of the Board, a majority of the total number of directors then in office shall constitute a quorum for the
transaction of business. If a quorum is not present at any meeting of the Board, then the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until a quorum is present. A meeting at which a quorum is initially
present may continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority
of the required quorum for that meeting. The vote of a majority of the directors present at any meeting at which a quorum is present shall
be the act of the Board, except as may be otherwise specifically provided by statute, the Certificate or these bylaws.
Section 3.10 Board
Action by Written Consent Without a Meeting. Unless otherwise restricted by the Certificate or these bylaws, any action required or
permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken without a meeting if all members of the Board
or committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmission
or transmissions are filed with the minutes of proceedings of the Board or committee.
Section 3.11 Fees
and Compensation of Directors. Unless otherwise restricted by the Certificate or these bylaws, the Board shall have the authority
to fix the compensation of directors.
ARTICLE 4
COMMITTEES
Section 4.1 Committees
of Directors. The Board may designate one or more committees, each committee to consist of one or more of the directors of the Corporation.
The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member
at any meeting of the committee. Any such committee, to the extent provided in the resolution of the Board or in these bylaws, shall have
and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers that may require it; but no such committee shall have the power or authority to
(i) approve or adopt, or recommend to the stockholders, any action or matter (other than the election or removal of directors) expressly
required by the DGCL to be submitted to stockholders for approval, or (ii) adopt, amend or repeal any bylaw of the Corporation.
Section 4.2 Committee
Minutes. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.
Section 4.3 Meetings
and Action of Committees.
Meetings and actions of committees
shall be governed by, and held and taken in accordance with, the provisions of:
(a) Section 3.6
(place of meetings and meetings by telephone);
(b) Section 3.7
(regular meetings);
(c) Section 3.8
(special meetings; notice);
(d) Section 3.9
(quorum; voting);
(e) Section 3.10
(action without a meeting); and
(f)
Section 7.5 (waiver of notice)
(g) with
such changes in the context of those bylaws as are necessary to substitute the committee and its members for the Board and its
members. However:
(i)
the time of regular meetings of committees may be determined
by resolution of the committee; and
(ii) special
meetings of committees may also be called by resolution of the committee.
The Board may adopt rules for
the governance of any committee not inconsistent with the provisions of these bylaws.
Section 4.4 Subcommittees.
Unless otherwise provided under applicable law, or in the Certificate, these bylaws or the resolutions of the Board designating the committee,
a committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to
a subcommittee any or all of the powers and authority of the committee.
ARTICLE 5
OFFICERS
Section 5.1 Officers.
The officers of the Corporation shall be a Chairman of the Board, a Chief Executive Officer, a President, one or more Executive Vice President
or Vice Presidents, a Chief Operating Officer, a Chief Financial Officer, a Secretary and a Treasurer and such other officers and assistant
officers as may be deemed necessary or desirable by the Board. Any number of offices may be held by the same person. In its discretion,
the Board may choose not to fill any office for any period as it may deem advisable; provided, however, that there shall always be (i) a
Chairman of the Board, a President or a Vice President and (ii) a Treasurer, a Secretary, an Assistant Treasurer or an Assistant
Secretary.
Section 5.2 Appointment
of Officers. The Board shall appoint the officers of the Corporation, except such officers as may be appointed in accordance with
the provisions of Section 5.3, subject to the rights, if any, of an officer under any contract of employment. A vacancy in
any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in this
Article V for the regular election to such office.
Section 5.3 Subordinate
Officers. The Board may appoint, or empower the Chief Executive Officer or, in the absence of a Chief Executive Officer, the President,
to appoint, such other officers and agents as the business of the Corporation may require. Each of such officers and agents shall hold
office for such period, have such authority, and perform such duties as are provided in these bylaws or as the Board may from time to
time determine.
Section 5.4 Removal
and Resignation of Officers. Any officer may be removed, either with or without cause, by an affirmative vote of the majority of the
Board at any regular or special meeting of the Board or, except in the case of an officer chosen by the Board, by any officer upon whom
such power of removal may be conferred by the Board. Any officer may resign at any time by giving written or electronic notice to the
Corporation; provided, however, that if such notice is given by electronic transmission, such electronic transmission must either set
forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the officer.
Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice. Unless otherwise
specified in the notice of resignation, the acceptance of the resignation shall not be necessary to make it effective. Any resignation
is without prejudice to the rights, if any, of the Corporation under any contract to which the officer is a party.
Section 5.5 Vacancies
in Offices. Any vacancy occurring in any office of the Corporation shall be filled by the Board as provided in Section 5.2
and Section 5.3.
Section 5.6 Representation
of Shares of Other Corporations. The Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer,
any Vice President, the Treasurer, the Secretary or Assistant Secretary of this Corporation, or any other person authorized by the Board,
the Chairman of the Board, the Chief Executive Officer, the President or a Vice President, is authorized to vote, represent, and exercise
on behalf of this Corporation all rights incident to any and all shares of any other corporation or corporations standing in the name
of this Corporation. The authority granted herein may be exercised either by such person directly or by any other person authorized to
do so by proxy or power of attorney duly executed by such person having the authority.
Section 5.7 Authority
and Duties of Officers. All officers of the Corporation shall respectively have such authority and perform such duties in the management
of the business of the Corporation as may be designated from time to time by the Board and, to the extent not so provided, as generally
pertain to their respective offices, subject to the control of the Board.
Section 5.8 The
Chairman of the Board. The Chairman of the Board shall have the powers and duties customarily and usually associated with the office
of the Chairman of the Board. The Chairman of the Board shall preside at meetings of the stockholders and of the Board.
Section 5.9 The
Chief Executive Officer. The Chief Executive Officer shall have, subject to the supervision, direction and control of the Board, ultimate
authority for decisions relating to the supervision, direction and management of the affairs and the business of the Corporation customarily
and usually associated with the position of Chief Executive Officer, including, without limitation, all powers necessary to direct and
control the organizational and reporting relationships within the Corporation. If at any time the office of the Chairman and Vice Chairman
of the Board shall not be filled, or in the event of the temporary absence or disability of the Chairman of the Board and the Vice Chairman
of the Board, the Chief Executive Officer shall perform the duties and exercise the powers of the Chairman of the Board unless otherwise
determined by the Board.
Section 5.10 The
President. The President shall have, subject to the supervision, direction and control of the Board, the general powers and duties
of supervision, direction and management of the affairs and business of the Corporation customarily and usually associated with the position
of President. The President shall have such powers and perform such duties as may from time to time be assigned to him or her by the Board,
the Chairman of the Board or the Chief Executive Officer. In the event of the absence or disability of the Chief Executive Officer, the
President shall perform the duties and exercise the powers of the Chief Executive Officer unless otherwise determined by the Board.
Section 5.11 The
Chief Operating Officer. The Chief Operating Officer of the Corporation shall have, subject to the supervision, direction and control
of the Board, the Chairman of the Board, the Chief Executive Officer and the President, general and active management of the business
of the Corporation and shall see that all orders and resolutions of the Board are carried into effect. The Chief Operating Officer shall
have such other powers and perform such duties as may from time be assigned to him or her by the Board, the Chairman of the Board, the
Chief Executive Officer or the President.
Section 5.12 The
Vice Presidents and Assistant Vice Presidents. Each Vice President and Assistant Vice President shall have such powers and perform
such duties as may from time to time be assigned to him or her by the Board, the Chairman of the Board, the Chief Executive Officer or
the President.
Section 5.13 The
Secretary and Assistant Secretaries.
(i) The
Secretary shall attend meetings of the Board and meetings of the stockholders and record all votes and minutes of all such proceedings
in a book or books kept for such purpose. The Secretary shall have all such further powers and duties as are customarily and usually associated
with the position of Secretary or as may from time to time be assigned to him or her by the Board, the Chairman of the Board, the Chief
Executive Officer or the President.
(ii) Each
Assistant Secretary shall have such powers and perform such duties as may from time to time be assigned to him or her by the Board, the
Chairman of the Board, the Chief Executive Officer, the President or the Secretary. In the event of the absence, inability or refusal
to act of the Secretary, the Assistant Secretary (or if there shall be more than one, the Assistant secretaries in the order determined
by the Board) shall perform the duties and exercise the powers of the Secretary.
Section 5.14 The
Chief Financial Officer, the Treasurer and Assistant Treasurers.
(i) The
Chief Financial Officer shall be responsible for maintaining the Corporation’s accounting records and statements, and shall keep
full and accurate accounts of receipts and disbursements in books belonging to the Corporation. The Chief Financial Officer shall also
maintain adequate records of all assets, liabilities and transactions of the Corporation and shall assure that adequate audits thereof
are currently and regularly made. The Chief Financial Officer shall have all such further powers and perform all such further duties as
are customarily and usually associated with the position of Chief Financial Officer, or as may from time to time be assigned to him or
her by the Board, the Chairman, the Chief Executive Officer or the President. Unless a Treasurer has been appointed separately in accordance
with Section 5.2 or Section 5.3, the Chief Financial Officer shall also perform the duties of Treasurer prescribed
in paragraph (ii) below.
(ii) The
Treasurer shall have custody of the Corporation’s funds and securities, shall deposit or cause to be deposited moneys or other valuable
effects in the name and to the credit of the Corporation in such depositories as may be designated by any duly authorized officer of the
Corporation, and shall have such further powers and perform such further duties as may from time to time be assigned to him or her by
the Board, the Chief Executive Officer, or the President.
(iii) Each
Assistant Treasurer shall have such powers and perform such duties as may from time to time be assigned to him or her by the Board, the
Chief Executive Officer, the President, the Chief Financial Officer or the Treasurer.
ARTICLE 6
STOCK
Section 6.1 Stock
Certificates; Uncertificated Shares. The shares of the Corporation may be represented by certificated or uncertificated shares, as
determined by the Corporation in accordance with applicable law. Every holder of stock represented by certificates shall be entitled to
have a certificate signed by, or in the name of the Corporation by the Chairman of the Board or Vice Chairman of the Board, or the President
or a Vice-President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation representing
the number of shares registered in certificate form. Any or all of the signatures on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person
were such officer, transfer agent or registrar at the date of issue. The Corporation shall not have power to issue a certificate in bearer
form.
Section 6.2 Special
Designation on Certificates. If the Corporation is authorized to issue more than one class of stock or more than one series of any
class, then the powers, the designations, the preferences, and the relative, participating, optional or other special rights of each class
of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in
full or summarized on the face or back of the certificate that the Corporation shall issue to represent such class or series of stock;
provided, however, that, except as otherwise provided in Section 202 of the DGCL, in lieu of the foregoing requirements there may
be set forth on the face or back of the certificate that the Corporation shall issue to represent such class or series of stock, a statement
that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions
of such preferences and/or rights. Within a reasonable time after the issuance or transfer of uncertificated stock, the Corporation shall
send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant
to this Section 6.2 or Sections 151(f), 156, 202(a) or 218(a) of the DGCL, or with respect to this Section 6.2,
a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences
and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations
or restrictions of such preferences and/or rights. Except as otherwise expressly provided by law, the rights and obligations of the holders
of uncertificated stock and the rights and obligations of the holders of certificates representing stock of the same class and series
shall be identical.
Section 6.3 Lost,
Stolen or Destroyed Certificates. Except as provided in this Section 6.3, no new certificates for shares shall be issued
to replace a previously issued certificate unless the latter is surrendered to the Corporation and cancelled at the same time. The Corporation
may issue a new certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have
been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s
legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account
of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.
Section 6.4 Dividends.
The Board, subject to any restrictions contained in the Certificate or applicable law, may declare and pay dividends upon the shares of
the Corporation’s capital stock. Dividends may be paid in cash, in property, or in shares of the corporation’s capital stock,
subject to the provisions of the Certificate.
Section 6.5 Transfer
of Stock. Transfers of record of shares of stock of the Corporation shall be made only upon its books by the holders thereof, in person
or by an attorney duly authorized, and, if such stock is certificated, upon the surrender of a certificate or certificates for a like
number of shares, properly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer; provided, however,
that such succession, assignment or authority to transfer is not prohibited by the Certificate, these bylaws, applicable law or contract.
Section 6.6 Stock
Transfer Agreements. The Corporation shall have power to enter into and perform any agreement with any number of stockholders of any
one or more classes of stock of the Corporation to restrict the transfer of shares of stock of the Corporation of any one or more classes
owned by such stockholders in any manner not prohibited by the DGCL.
Section 6.7 Registered
Stockholders. The Corporation:
(i)
shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends and to vote as such owner;
(ii) shall
be entitled to hold liable for calls and assessments the person registered on its books as the owner of shares; and
(iii) shall
not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of another person, whether or
not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE 7
MANNER
OF GIVING NOTICE AND WAIVER
Section 7.1 Notice
of Stockholders’ Meetings. Notice of any meeting of stockholders, if mailed, is given when deposited in the United States mail,
postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the Corporation’s records. An
affidavit of the Secretary or an Assistant Secretary of the Corporation or of the transfer agent or other agent of the Corporation that
the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
Section 7.2 Notice
by Electronic Transmission. Without limiting the manner by which notice otherwise may be given effectively to stockholders pursuant
to the DGCL, the Certificate or these bylaws, any notice to stockholders given by the Corporation under any provision of the DGCL, the
Certificate or these bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the
notice is given. Any such consent shall be revocable by the stockholder by written notice to the Corporation. Any such consent shall be
deemed revoked if:
(i) the
Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such
consent; and
(ii) such
inability becomes known to the Secretary or an Assistant Secretary of the Corporation or to the transfer agent, or other person responsible
for the giving of notice.
However, the inadvertent failure to treat such
inability as a revocation shall not invalidate any meeting or other action.
Any notice given pursuant
to the preceding paragraph shall be deemed given:
(iii) if
by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice;
(iv) if
by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice;
(v) if
by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such
posting and (B) the giving of such separate notice; and
(vi) if
by any other form of electronic transmission, when directed to the stockholder.
An affidavit of the Secretary
or an Assistant Secretary or of the transfer agent or other agent of the Corporation that the notice has been given by a form of electronic
transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
An “electronic transmission”
means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained,
retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated
process.
Section 7.3 Notice
to Stockholders Sharing an Address. Except as otherwise prohibited under the DGCL, without limiting the manner by which notice otherwise
may be given effectively to stockholders, any notice to stockholders given by the Corporation under the provisions of the DGCL, the Certificate
or these bylaws shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders
at that address to whom such notice is given. Any such consent shall be revocable by the stockholder by written notice to the Corporation.
Any stockholder who fails to object in writing to the Corporation, within 60 days of having been given written notice by the Corporation
of its intention to send the single notice, shall be deemed to have consented to receiving such single written notice.
Section 7.4 Notice
to Person with Whom Communication Is Unlawful. Whenever notice is required to be given under the DGCL, the Certificate or these bylaws,
to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no
duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting
which shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect
as if such notice had been duly given. In the event that the action taken by the Corporation is such as to require the filing of a certificate
under the DGCL, the certificate shall state, if such is the fact and if notice is required, that notice was given to all persons entitled
to receive notice except such persons with whom communication is unlawful.
Section 7.5 Waiver
of Notice. Whenever notice is required to be given to stockholders, directors or other persons under any provision of the DGCL, the
Certificate or these bylaws, a written waiver, signed by the person entitled to notice, or a waiver by electronic transmission by the
person entitled to notice, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting
for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders or
the Board, as the case may be, need be specified in any written waiver of notice or any waiver by electronic transmission unless so required
by the Certificate or these bylaws.
ARTICLE 8
INDEMNIFICATION
Section 8.1 Indemnification
of Directors and Officers in Third Party Proceedings. Subject to the other provisions of this Article VIII, the Corporation
shall indemnify and hold harmless, to the fullest extent permitted by the DGCL, as now or hereinafter in effect, any person who was or
is a party or is threatened to be made a party to any threatened, pending or completed action, suit, arbitration, alternative dispute
resolution mechanism, investigation, inquiry, judicial, administrative or legislative hearing, or any other threatened, pending or completed
proceeding, whether civil, criminal, administrative, legislative, investigative or other nature and including any and all appeals (collectively,
each a “Proceeding”) (other than an action by or in the right of the Corporation to procure a judgement in its favor)
by reason of the fact that such person is or was a director or officer of the Corporation, or while a director of the Corporation or officer
of the Corporation is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against all liability and loss suffered and expenses, including, without limitation,
attorneys’ fees, judgments, fines, ERISA excise taxes, damages, claims, penalties and amounts paid in settlement actually and reasonably
incurred by such person in connection with such Proceeding, if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe such person’s conduct was unlawful. The termination of any Proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act
in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.
Section 8.2 Indemnification
of Directors and Officers in Actions by or in the Right of the Corporation. Subject to the other provisions of this Article VIII,
the Corporation shall indemnity, to the fullest extent permitted by the DGCL, as now or hereinafter in effect, any person who was or is
a party or is threatened to be made a party to any Proceeding by or in the right of the Corporation to procure a judgement in its favor
by reason of the fact that such person is or was a director or officer of the Corporation, or while a director or officer of the Corporation
is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against all liability and loss suffered and expenses, including, without limitation, attorneys’
fees, judgments, fines, ERISA excise taxes, damages, claims, penalties and amounts paid in settlement actually and reasonably incurred
by such person in connection with such Proceeding, if such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
Section 8.3 Successful
Defense. To the extent that a present or former director or officer of the Corporation has been successful on the merits or otherwise
in defense of any Proceeding described in Section 8.1 or Section 8.2, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such
person in connection therewith to the extent not already advanced pursuant to Section 8.5.
Section 8.4 Indemnification
of Others. Subject to the other provisions of this Article VIII, the Corporation shall have power to indemnify its employees
and its agents to the extent not prohibited by the DGCL or other applicable law. The Board shall have the power to delegate the determination
of whether employees or agents shall be indemnified to such person or persons as the Board determines.
Section 8.5 Advanced
Payment of Expenses. Expenses (including attorneys’ fees) incurred by an officer or director of the Corporation in defending
any Proceeding shall be paid by the Corporation, and expenses (including attorneys’ fees) incurred by the Corporation’s employees
and agents in defending any Proceeding shall be paid by the Corporation, in advance of the final disposition of such Proceeding upon receipt
of a written request therefor and an undertaking, by or on behalf of the person, to repay such amounts so advanced if it shall ultimately
be determined by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal that such
person is not entitled to be indemnified under this Article VIII or the DGCL. The right to advancement of expenses shall not
apply if a determination is reasonably made that the facts known at the time such determination is made demonstrate clearly and convincingly
that officer, director, employee or agent, as applicable, acted in bad faith or in a manner that such person did not reasonably believe
to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal proceeding, that such person had reasonable
cause to believe his or her conduct was unlawful. Such determination shall be made: (i) by the Board by a majority vote of directors
who are not parties to such proceeding, whether or not such majority constitutes a quorum; (ii) by a committee of such directors
designated by a majority vote of such directors, whether or not such majority constitutes a quorum; or (iii) if there are no such
directors, or if such directors so direct, by independent legal counsel in a written opinion to the Board, a copy of which shall be delivered
to the officer, director, employee or agent, as applicable.
Section 8.6 Limitation
on Indemnification. Subject to the requirements in Section 8.3 and the DGCL, the Corporation shall not be obligated to
indemnify any person pursuant to this Article VIII in connection with any Proceeding (or any part of any Proceeding):
(i)
for which payment has actually been made to or on behalf
of such person under any statute, insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond
the amount paid;
(ii) for
an accounting or disgorgement of profits pursuant to Section 16(b) of the 1934 Act, or similar provisions of federal, state
or local statutory law or common law, if such person is held liable therefor (including pursuant to any settlement arrangements);
(iii) for
any reimbursement of the Corporation by such person of any bonus or other incentive-based or equity-based compensation or of any profits
realized by such person from the sale of securities of the Corporation, as required in each case under the 1934 Act (including any such
reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the Sarbanes-Oxley Act of
2002 (the “Sarbanes-Oxley Act”), or the payment to the Corporation of profits arising from the purchase and sale by
such person of securities in violation of Section 306 of the Sarbanes-Oxley Act), if such person is held liable therefor (including
pursuant to any settlement arrangements);
(iv) initiated
by such person (and not by way of defense), unless (a) the Board authorized the Proceeding (or the relevant part of the Proceeding)
prior to its initiation, (b) the Corporation provides the indemnification, in its sole discretion, pursuant to the powers vested
in the Corporation under applicable law, (c) otherwise required to be made under this Section 8.6, or (d) otherwise
required by applicable law; or
(v) if
prohibited by applicable law; provided, however, that if any provision or provisions of this Article VIII shall be held to
be invalid, illegal or unenforceable for any reason whatsoever: (1) the validity, legality and enforceability of the remaining provisions
of this Article VIII (including, without limitation, each portion of any paragraph or clause containing any such provision
held to be invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby; and (2) to the fullest extent possible, the provisions of this Article VIII (including,
without limitation, each such portion of any paragraph or clause containing any such provision held to be invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
Section 8.7 Determination;
Claim. If a claim for indemnification or advancement of expenses under this Article VIII is not paid in full within 90
days after receipt by the Corporation of the written request therefor, the claimant shall be entitled to an adjudication by a court of
competent jurisdiction of his or her entitlement to such indemnification or advancement of expenses. The Corporation shall indemnify such
person against any and all expenses that are incurred by such person in connection with any action for indemnification or advancement
of expenses from the Corporation under this Article VIII, to the extent such person is successful in such action, and to the
extent not prohibited by law. In any such suit, the Corporation shall, to the fullest extent not prohibited by law, have the burden of
proving that the claimant is not entitled to the requested indemnification or advancement of expenses.
Section 8.8 Non-Exclusivity
of Rights. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall
not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the
Certificate or any statute, bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such
person’s official capacity and as to action in another capacity while holding such office. The Corporation is specifically authorized
to enter into individual contracts with any or all of its directors, officers, employees or agents respecting indemnification and advancement
of expenses, to the fullest extent not prohibited by the DGCL or other applicable law.
Section 8.9 Insurance.
The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in
any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify
such person against such liability under the provisions of the DGCL.
Section 8.10 Survival.
Notwithstanding anything to the contrary, the rights to indemnification and advancement of expenses conferred by this Article VIII
shall be contract rights and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of the heirs, executors and administrators of such a person.
Section 8.11 Effect
Of Repeal Or Modification. Any amendment, alteration or repeal of this Article VIII shall not adversely affect any right
or protection hereunder of any person in respect of any act or omission occurring prior to such amendment, alteration or repeal.
Section 8.12 Certain
Definitions. For purposes of this Article VIII, references to the “Corporation” shall include, in addition
to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees
or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the
resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had
continued. For purposes of this Article VIII, references to “other enterprises” shall include employee
benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent
with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such
person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article VIII.
ARTICLE 9
GENERAL
MATTERS
Section 9.1 Execution
of Corporate Contracts and Instruments. Except as otherwise provided by law, the Certificate or these bylaws, the Board may authorize
any officer or officers, or agent or agents, to enter into any contract or execute any document or instrument in the name of and on behalf
of the Corporation; such authority may be general or confined to specific instances. Unless so authorized or ratified by the Board or
within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the Corporation by any
contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.
Section 9.2 Fiscal
Year. The fiscal year of the Corporation shall be fixed by resolution of the Board and may be changed by the Board.
Section 9.3 Seal.
The Corporation may adopt a corporate seal, which shall be adopted and which may be altered by the Board. The Corporation may use the
corporate seal by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.
Section 9.4 Construction;
Definitions. Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the DGCL
shall govern the construction of these bylaws. Without limiting the generality of this provision, the singular number includes the plural,
the plural number includes the singular, and the term “person” includes both an entity and a natural person.
ARTICLE 10
AMENDMENTS
The Board is expressly authorized
to adopt, alter, amend or repeal these bylaws. The affirmative vote of at least a majority of Board then in office shall be required in
order for the Board to adopt, amend, alter or repeal these bylaws. The bylaws may also be adopted, amended or repealed by the affirmative
vote of at least a majority of the voting power of the outstanding shares of capital stock of the Corporation entitled to vote upon such
adoption, amendment or repeal, voting as a single class.
SET JET, INC.
OMNIBUS EQUITY INCENTIVE PLAN
ARTICLE 1
ESTABLISHMENT; PURPOSE; GLOSSARY
1.1 ESTABLISHMENT.
Set Jet, Inc., a Delaware corporation (the “Company”), hereby establishes the Set Jet, Inc. Omnibus Equity
Incentive Plan (the “Plan”).
1.2 PURPOSE.
The purpose of the Plan is to promote the success and enhance the value of the Company by linking the personal interest of the Participants
to those of the Company’s shareholders by providing the Participants with an incentive for outstanding performance. To further these
objectives, the Plan provides for the award of Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Stock Grants,
Stock Units, Performance Shares and Performance Units.
1.3 GLOSSARY.
Defined terms used in this Plan are set forth in the attached Glossary, which is incorporated into and made part of this Plan.
ARTICLE 2
EFFECTIVE DATE; EXPIRATION DATE
2.1 EFFECTIVE
DATE. The Plan shall become effective on the date on which the transactions contemplated by that certain Merger Agreement,
by and among Set Jet, Inc., a Nevada corporation, Revelstone Capital Acquisition Corp., a Delaware corporation (“Revelstone”),
and certain other parties, dated as of [date], as amended from time to time (the “Merger
Agreement”) become effective (the “Effective Date”).
2.2 EXPIRATION
DATE. Unless sooner terminated pursuant to Section 14.1, the Plan will expire on, and no Award may be granted under
the Plan after, the tenth (10th) anniversary of the Effective Date. Any Awards that are outstanding on the tenth (10th)
anniversary of the Effective Date shall remain in force according to the terms of the Plan and the applicable Award Agreement.
ARTICLE 3
ADMINISTRATION
3.1 COMMITTEE;
ACTION BY THE COMMITTEE. The Plan shall be administered by the Committee or, with respect to individuals who are Non-Employee
Directors, the Board. All references in the Plan to the “Committee” shall refer to the Committee or Board, as applicable.
The members of the Committee shall be appointed from time to time by, and shall serve at the discretion of, the Board. A majority of the
Committee shall constitute a quorum. The acts of a majority of the members present at any meeting at which a quorum is present, and acts
approved in writing by all of the members of the Committee in lieu of a meeting, shall be deemed the acts of the Committee.
3.2 AUTHORITY
OF COMMITTEE. The Committee has the power and authority to take the following actions: (a) designate Participants
to receive Awards; (b) determine the type or types of Awards and the time or times when Awards are to be granted to each Participant;
(c) determine the number of Awards to be granted and the number of shares of Stock to which an Award will relate; (d) determine
the terms and conditions of any Award, including, but not limited to, the exercise price, grant price, or purchase price, any restrictions
or limitations on the Award, any schedule for lapse of restrictions or limitations, and accelerations or waivers thereof, based in each
case on such considerations as the Committee determines; (e) determine whether, to what extent, and in what circumstances an Award
may be settled in, or the exercise price of an Award may be paid in, cash, Stock, other Awards, or other property, or whether an Award
may be cancelled, forfeited, exchanged or surrendered; (f) prescribe the form of each Award Agreement, which need not be identical
for each Participant; (g) establish, adopt, or revise any rules and regulations as it may deem necessary or advisable to administer
the Plan; (h) amend or modify any outstanding Award to the extent the terms of such Award are within the power and authority of the
Committee as provided under the Plan; (i) interpret the terms of, and determine any matter arising pursuant to, the Plan or any Award
Agreement including, without limitation, correcting any defects or supplying any omissions or reconciling any inconsistency in the Plan
or any Award Agreement; and (j) make all other decisions or determinations that may be required pursuant to the Plan or an Award
Agreement as the Committee deems necessary or advisable to administer the Plan.
3.3 DECISIONS
BINDING. The Committee’s interpretation of the Plan or any Award Agreement and all decisions and determinations by
the Committee with respect to the Plan and any Award are final, binding, and conclusive on all parties. All authority of the Board and
the Committee with respect to Awards issued pursuant to this Plan, including the authority to amend outstanding Awards, shall continue
after the Expiration Date so long as any Award remains outstanding. Any action authorized to be taken by the Committee pursuant to the
Plan may be taken or not taken by the Committee in the exercise of its discretion as long as such action or decision not to act is not
inconsistent with a provision of this Plan.
3.4 DELEGATION
to CEO. The Committee may, in its discretion, delegate to the CEO, in writing, the power and authority to grant Awards
to individuals (other than Non-Employee Directors or other individuals who are subject to Section 16 of the Exchange Act) to expedite
the hiring process or to retain talent. The Committee’s delegation to the CEO shall be subject to such restrictions or limitations
as may be imposed by the Committee and may be revoked or modified at any time. Any such delegation must be consistent with applicable
law and subject to the restrictions and limitations imposed by the Committee.
ARTICLE 4
SHARES SUBJECT TO THE PLAN
4.1 NUMBER
OF SHARES. Subject to adjustment as provided in Section 4.4, the total number of shares of Stock reserved and
available for grant pursuant to the Plan is 3,500,000, of which 2,000,000 are Restricted Stock Units reserved and available for grant
solely to certain executive officers and directors of the Company pursuant to the Retention Bonus Agreements
(as defined in the Merger Agreement).
4.2 share
COUNTING. For purposes of determining the number of shares of Stock available for grant under the Plan from time-to-time:
(a) The
number of shares of Stock reserved and available for grant under this Plan shall be reduced by one (1) share of Stock for each share
subject to an Award granted under this Plan.
(b) In
the event any Award granted under this Plan, other than Restricted Stock Units granted to any executive officer or director of the Company
pursuant to a Retention Bonus Agreement, is forfeited, terminated, cancelled, or expired, the number of shares of Stock subject to such
Award and related forfeiture, termination, cancellation or expiration, shall thereafter be available for grant or added back to the shares
of Stock available for grant under this Plan on a one-for-one basis.
(c) If
shares of Stock are not delivered in connection with any Award other than Restricted Stock Units granted to any executive officer or director
of the Company pursuant to a Retention Bonus Agreement because the Award is settled in cash, such shares shall not be deemed to have been
delivered for purposes of determining the maximum number of shares of Stock available for delivery under the Plan and will again be available
for grant.
(d) The
exercise of a stock-settled SAR or broker-assisted “cashless” exercise of an Option (or a portion thereof) will reduce the
number of shares of Stock available for issuance by the entire number of shares of Stock subject to that SAR or Option (or applicable
portion thereof), even though a smaller number of shares of Stock will be issued upon such an exercise.
(e) Shares
of Stock tendered to pay the exercise price of an Option or tendered, withheld or otherwise relinquished by the Participant to satisfy
a tax withholding obligation arising in connection with any Award will not become available for grant under the Plan. Moreover, shares
of Stock purchased on the open market with cash proceeds generated by the exercise of an Option or SAR will not increase or replenish
the number of shares available for grant.
(f) If
the provisions of this Section 4.2 are inconsistent with the requirements of any regulations promulgated by the Internal Revenue
Service pursuant to Section 422 of the Code, the provisions of such regulations shall control over the provisions of this Section 4.2,
but only as this Section 4.2 applies to Incentive Stock Options.
(g) The
Committee may adopt such other reasonable rules and procedures as it deems to be appropriate for purposes of determining the number
of shares of Stock that are available for grant pursuant to Section 4.1.
4.3 STOCK
DISTRIBUTED. Any shares of Stock delivered pursuant to an Award may consist, in whole or in part, of authorized but unissued
Stock or treasury Stock or Stock purchased on the open market.
4.4 ADJUSTMENTS.
In the event of any recapitalization, reclassification, stock dividend, stock split, rights offering, spin-off, reverse stock split or
other distribution with respect to the shares of Stock, any “equity restructuring” (as defined in Accounting Standards Codification
718), or any similar corporate transaction or event in respect of the Stock, the Committee shall to the extent it deems equitable and
appropriate to prevent dilution or enlargement of rights, make a proportionate adjustment in: (a) the number and class of shares
of Stock made available for grant pursuant to Section 4.1; (b) the limits set forth in Section 4.6, Section 7.2
and any other similar numeric limit expressed in the Plan; (c) the number and class of and/or price of shares of Stock, units, or
other rights subject to the then-outstanding Awards; (d) the performance targets or goals appropriate to any outstanding Awards;
or (e) any other terms of an Award that are affected by the event. Notwithstanding anything in the Plan to the contrary, in the event
of any such transaction or occurrence, the Committee, in its sole discretion, may provide in substitution for any or all outstanding Awards
such alternative consideration (including cash) as it, in good faith, may determine to be equitable under the circumstances and may require
in connection therewith the surrender of all Awards so replaced. Any adjustments made pursuant to this Section 4.4 shall be
made in a manner consistent with the requirements of Section 409A of the Code and, in the case of Incentive Stock Options, any such
adjustments shall be made in a manner consistent with the requirements of Section 424(a) of the Code.
4.5 FRACTIONAL
SHARES. No fractional shares shall be issued pursuant to the Plan. Unless the Committee specifies otherwise in the Award
Agreement or pursuant to any policy adopted by the Committee, cash will be given in lieu of fractional shares. In the event of adjustment
as provided in Section 4.4, the total number of shares subject to any affected Award shall always be a whole number by rounding
any fractional shares to the nearest whole share.
4.6 MAXIMUM
AWARD PAYABLE TO NON-EMPLOYEE DIRECTORS. Notwithstanding any other provision in the Plan to the contrary, the aggregate grant
date fair value (computed as of the Date of Grant in accordance with applicable financial accounting rules) of all Awards granted to any
Non-Employee Director during any single calendar year, plus the aggregate amount of all cash fees earned and paid or payable to such director
for services rendered for the same year, shall not exceed $[450,000]. For the avoidance
of doubt, any compensation that is deferred shall be counted toward this annual limit during the year in which it is first earned and
not when paid.
4.7 SUBSTITUTE
AWARDS. Awards may, in the sole discretion of the Committee, be granted under the Plan in assumption of, or in substitution for,
outstanding awards previously granted by an entity directly or indirectly acquired by the Company or with which the Company combines (“Substitute
Awards”). Substitute Awards shall not be counted against the numeric limit set forth in Section 4.1; provided,
that (a) Substitute Awards issued in connection with the assumption of, or substitution for, equity securities of Set Jet, Inc.,
pursuant to the Merger Agreement shall be counted against the numeric limit set forth in Section 4.1 and (b) Substitute
Awards issued in connection with the assumption of, or in substitution for, outstanding Options intended to qualify as “incentive
stock options” within the meaning of Section 422 of the Code shall be counted against the aggregate number of shares of Stock
available for Awards of Incentive Stock Options under the Plan. Subject to applicable stock exchange requirements and applicable law,
available shares of stock under a stockholder-approved plan of an entity directly or indirectly acquired by the Company or with which
the Company combines (as appropriately adjusted to reflect the acquisition or combination transaction) may be used for Awards under the
Plan and shall not reduce the number of shares of Stock available for issuance under the Plan. Substitute Award shall be granted in a
manner that is consistent with the requirements for avoiding taxes or penalties under Section 409A of the Code.
ARTICLE 5
ELIGIBILITY; PARTICIPATION
5.1 ELIGIBILITY.
Persons eligible to participate in this Plan include Non-Employee Directors and employees and officers of the Company and its Subsidiaries.
The Committee may determine on a case-by-case basis to make Awards to Consultants to the Company or any Subsidiary. Awards may also be
granted to prospective employees or members of the Board but no portion of any such Award will vest, become exercisable, be issued, or
become effective prior to the date on which such individual begins to provide services to the Company or any Subsidiary.
5.2 ACTUAL
PARTICIPATION. Subject to the provisions of the Plan, the Committee may, from time to time, select from among all eligible
Participants those to whom Awards shall be granted and shall determine the nature and amount of each Award. No individual shall have any
right to be selected to receive an Award, or having been so selected, to be selected to receive a future Award.
ARTICLE 6
GENERAL RULES APPLICABLE TO ALL AWARDS
6.1 AWARD
AGREEMENTS. All Awards shall be evidenced by an Award Agreement. The Award Agreement shall include such terms and provisions as
the Committee determines to be appropriate. The terms of the Award Agreement may vary depending on the type of Award, the employee or
classification of the employee to whom the Award is made and such other factors as the Committee determines to be appropriate.
6.2 TERM
OF AWARD. The term of each Award shall be for the period determined by the Committee, provided that in no event shall the
term of any Option or Stock Appreciation Right exceed a period of ten (10) years from the Date of Grant.
6.3 TERMINATION
OF EMPLOYMENT OR SERVICE. Subject to the provisions of this Plan, the Committee shall determine and set forth in the applicable
Award Agreement the extent to which a Participant shall have the right to retain and/or exercise an Award following Termination of Employment
(or Termination of Service). Such provisions need not be uniform among all types of Awards and may reflect distinctions based on the reasons
for such terminations, including but not limited to, death, Disability, a Change of Control, a termination for cause or reasons relating
to the breach or threatened breach of restrictive covenants.
6.4 FORM OF
PAYMENT FOR AWARDS. Subject to the terms of the Plan, the Award Agreement and any applicable law, payments or transfers
to be made by the Company or any Subsidiary on the grant, exercise or settlement of an Award may be made in such forms as determined by
the Committee, including, without limitation, cash, Stock, other Awards, or other property, or any combination thereof, and may be made
in a single payment or transfer, in installments, or any combination thereof, in each case determined in accordance with rules adopted
by the Committee.
ARTICLE 7
STOCK OPTIONS
7.1 GENERAL.
Subject to the terms and provisions of the Plan, Options may be granted to one or more Participants upon such terms and conditions, and
at any time and from time to time, as shall be determined by the Committee. The Committee may grant either Nonqualified Stock Options
or Incentive Stock Options and shall have complete discretion in determining the number of shares subject to Options granted to each Participant.
Option Awards are subject to the following terms and conditions:
(a) Exercise
Price. The exercise price per share of Stock pursuant to any Option shall be equal to the Fair Market Value of one share of Stock
as of the Date of Grant unless the Committee sets a higher exercise price in the Award Agreement.
(b) Exercise
of Option. Options shall be exercisable at such times and in such manner, and shall be subject to such restrictions and conditions,
as the Committee shall, in each instance approve, which need not be the same for each grant or for each Participant. The Committee may
prescribe performance or other conditions, if any, that must be satisfied before all or part of an Option may be exercised.
(c) Term
of Option. Each Option shall expire at such time as the Committee shall determine as of the Date of Grant; provided, however,
that no Option shall be exercisable later than the tenth (10th) anniversary of the Date of Grant.
(d) Payment.
The exercise price for any Option shall be paid in cash or if prescribed by the Committee shares of Stock (through actual tender or by
attestation). In the Award Agreement, the Committee also may prescribe other methods by which the exercise price of an Option may be paid
and the form of payment including, without limitation, any net-issuance arrangement or other property acceptable to the Committee (including
broker-assisted “cashless exercise” arrangements), and the methods by which shares of Stock shall be delivered or deemed to
be delivered to Participants.
(e) Repricing
of Options. Notwithstanding any other provision in the Plan to the contrary, without approval of the Company’s shareholders,
an Option may not be amended, modified downward or repriced to reduce the exercise price of any previously granted Option after the Date
of Grant or take any action that would be treated as a repricing under the rules of any national securities exchange on which the
Stock is then listed, quoted, or traded. Except as otherwise provided in Section 4.4 with respect to an adjustment in capitalization,
an Option also may not be surrendered in consideration of or exchanged for cash, other Awards or a new Option having an exercise price
below the exercise price of the Option being surrendered or exchanged.
(f) Nontransferability
of Options. No Option may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will
or by the laws of descent and distribution. Further, all Options granted to a Participant shall be exercisable during his or her lifetime
only by such Participant or his or her legal representative. Notwithstanding the foregoing, the Committee may, in its discretion, permit
the transfer of an Option to a Family Member, trust or partnership, or to a charitable organization, provided that no value or consideration
is received by the Participant with respect to such transfer.
7.2 INCENTIVE
STOCK OPTIONS. The following additional rules shall apply to Incentive Stock Options granted pursuant to this Article 7:
(a) Employees
Only. Incentive Stock Options shall be granted only to Participants who are employees of the Company or any Subsidiary.
(b) Exercise
Price. Except as provided in Section 7.2(f), the exercise price per share of Stock pursuant to any Incentive Stock
Option shall be equal to the Fair Market Value of one share of Stock as of the Date of Grant unless the Committee sets a higher exercise
price in the Award Agreement.
(c) Term
of Incentive Stock Option. In no event may any Incentive Stock Option be exercisable for more than ten (10) years from the
Date of Grant.
(d) Lapse
of Option. An Incentive Stock Option shall lapse in the following circumstances:
(1) The
Incentive Stock Option shall lapse ten (10) years from the Date of Grant, unless an earlier time is specified in the Award Agreement;
(2) The
Incentive Stock Option shall lapse three (3) months after the date of the Participant’s Termination of Employment for any reason
other than the Participant’s death or Disability, unless otherwise provided in the Award Agreement; and
(3) If
the Participant incurs a Termination of Employment on account of death or Disability before the Option lapses pursuant to paragraph (1) or
(2), the Incentive Stock Option shall lapse on the earlier of: (i) the scheduled expiration date of the Option; or (ii) twelve
(12) months after the date of the Participant’s Termination of Employment on account of death or Disability. Upon the Participant’s
death or Disability, any Incentive Stock Options exercisable at the Participant’s death or Disability may be exercised by the Participant’s
legal representative or representatives, by the person or persons entitled to do so pursuant to the Participant’s last will and
testament in the case of death, or, if the Participant fails to make testamentary disposition of such Incentive Stock Option or dies intestate,
by the person or persons entitled to receive the Incentive Stock Option pursuant to the applicable laws of descent and distribution.
(e) Individual
Dollar Limitation. The aggregate Fair Market Value (determined as of the time an Award is made) of all shares of Stock with respect
to which Incentive Stock Options are first exercisable by a Participant in any one calendar year may not exceed $100,000 or such other
limitation as may then be imposed by Section 422(d) of the Code or any successor provision. To the extent that Incentive Stock
Options are first exercisable by a Participant in excess of such limitation, the excess shall be considered Nonqualified Stock Options.
(f) Ten
Percent Owners. An Incentive Stock Option may be granted to any employee who, at the Date of Grant, owns stock possessing more
than 10% of the total combined voting power of all classes of Stock of the Company only if such Option is granted at a price that is not
less than 110% of Fair Market Value on the Date of Grant and the Option is exercisable for no more than five (5) years from the Date
of Grant.
(g) Right
to Exercise. Except as provided in Section 7.2(d)(3), during a Participant’s lifetime, an Incentive Stock Option
may be exercised only by the Participant.
(h) Limitations
on Number of Shares Subject to Awards. The maximum number of shares that may be issued under the Plan as Incentive Stock Options
is the numeric limit set forth in Section 4.1.
ARTICLE 8
STOCK APPRECIATION RIGHTS
8.1 GENERAL.
Subject to the terms and provisions of the Plan, SARs may be granted to one or more Participants upon such terms and conditions, and at
any time and from time to time, as shall be determined by the Committee. The Committee shall have complete discretion in determine the
number of SARs granted to each Participant. SARs are subject to the following terms and conditions:
(a) Base
Value. The base value per share of Stock pursuant to any SAR shall be equal to the Fair Market Value of one share of Stock as
of the Date of Grant unless the Committee sets a higher base value in the Award Agreement.
(b) Exercise
of SAR. SARs shall be exercisable at such times and in such manner, and shall be subject to such restrictions and conditions,
as the Committee shall, in each instance approve, which need not be the same for each grant or for each Participant. The Committee may
prescribe performance or other conditions, if any, that must be satisfied before all or part of a SAR may be exercised.
(c) Term
of SAR. Each SAR shall expire at such time as the Committee shall determine as of the Date of Grant; provided, however, that no
SAR shall be exercisable later than the tenth (10th) anniversary of the Date of Grant.
(d) Payment
of SAR Amount. Upon exercise of the SAR, the Participant shall be entitled to receive a payment equal to the amount determined
by multiplying: (a) the excess, if any, of the Fair Market Value of a share of Stock on the date of exercise over the base value
fixed by the Committee on the Date of Grant, by (b) the number of shares with respect to which the SAR is exercised. Payment shall
be made in the manner and at the time specified by the Committee in the Award Agreement. At the discretion of the Committee, the Award
Agreement may provide for payment for the SARs in cash, shares of Stock of equivalent value, or in a combination thereof.
(e) Repricing
of SARs. Notwithstanding any other provision in the Plan to the contrary, without approval of the Company’s shareholders,
a SAR may not be amended, modified downward or repriced to reduce the exercise price of any previously granted SAR after the Date of Grant
or take any action that would be treated as a repricing under the rules of any national securities exchange on which the Stock is
then listed, quoted, or traded. Except as otherwise provided in Section 4.4 with respect to an adjustment in capitalization,
a SAR also may not be surrendered in consideration of or exchanged for cash, other Awards or a new SAR having an exercise price below
the exercise price of the SAR being surrendered or exchanged.
(f) Nontransferability
of SARs. No SAR may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by
the laws of descent and distribution. Further, all SARs granted to a Participant shall be exercisable during his or her lifetime only
by such Participant or his or her legal representative. Notwithstanding the foregoing, the Committee may, in its discretion, permit the
transfer of an SAR to a Family Member, trust or partnership, or to a charitable organization, provided that no value or consideration
is received by the Participant with respect to such transfer.
ARTICLE 9
RESTRICTED STOCK AND RESTRICTED STOCK UNIT AWARDS
9.1 GRANT
OF RESTRICTED STOCK. Subject to the terms and provisions of the Plan, Restricted Stock may be granted to one or more Participants
upon such terms and conditions, and at any time and from time to time, as shall be determined by the Committee. Restricted Stock Awards
are subject to the following terms and conditions:
(a) Restrictions.
Restricted Stock shall be subject to such conditions and/or restrictions as the Committee may impose (including, without limitation, Performance
Goals and/or limitations on transferability, the right to receive dividends, or the right to vote the Restricted Stock), which need not
be the same for each grant or for each Participant. These restrictions may lapse separately or in combination at such times, in such circumstances,
in such installments, or otherwise, as determined by the Committee. Except as otherwise provided in the Award Agreement, Participants
holding shares of Restricted Stock may not exercise voting rights with respect to the shares of Restricted Stock during the period of
restriction.
(b) Forfeiture.
Except as otherwise provided in the Award Agreement, upon a Termination of Employment (or Termination of Service) during the applicable
period of restriction, Restricted Stock that is at that time subject to restrictions shall be forfeited. The Committee may provide in
the Award Agreement that the restrictions or forfeiture conditions relating to a Restricted Stock Award will be waived in whole or in
part in the event of a Termination of Employment (or Termination of Service) resulting from specified causes. The Committee also may waive
in whole or in part any other restrictions or forfeiture conditions relating to a Restricted Stock Award.
(c) Certificates
for Restricted Stock. Restricted Stock granted pursuant to the Plan may be evidenced in such manner as the Committee shall determine.
If certificates representing shares of Restricted Stock are registered in the name of the Participant, the certificates must bear an appropriate
legend referring to the terms, conditions, and restrictions applicable to such Restricted Stock, and the Company may retain physical possession
of the certificate until such time as all applicable restrictions lapse.
9.2 GRANT
OF RESTRICTED STOCK UNITS. Subject to the terms and provisions of the Plan, Restricted Stock Units may be granted to one or more
Participants upon such terms and conditions, and at any time and from time to time, as shall be determined by the Committee. Restricted
Stock Unit Awards are subject to the following terms and conditions:
(a) Restrictions.
Restricted Stock Unit Awards grant a Participant the right to receive a specified number of shares of Stock, or a cash payment equal to
the Fair Market Value (determined as of a specified date) of a specified number of shares of Stock, subject to such conditions and/or
restrictions as the Committee may impose, including Performance Goals, which need not be the same for each grant or for each Participant.
These restrictions may lapse separately or in combination at such times, in such circumstances, in such installments, or otherwise, as
determined by the Committee.
(b) Forfeiture.
Except as otherwise provided in the Award Agreement, upon a Termination of Employment (or Termination of Service) during the applicable
period of restriction, Restricted Stock Units that are at that time subject to restrictions shall be forfeited. The Committee may provide
in any Award Agreement that restrictions or forfeiture conditions relating to a Restricted Stock Unit Award will be waived in whole or
in part in the event of a Termination of Employment (or Termination of Service) resulting from specified causes. The Committee also may
waive in whole or in part any other restrictions or forfeiture conditions relating to a Restricted Stock Unit Award.
(c) Payment.
Payment for vested Restricted Stock Units shall be made in the manner and at the time designated by the Committee in the Award Agreement.
In the Award Agreement, the Committee may provide that payment will be made in cash or Stock, or in a combination thereof.
ARTICLE 10
STOCK GRANT AND STOCK UNIT AWARDS
10.1 STOCK
GRANT AWARDS. Subject to the terms and provisions of the Plan, Stock Grant Awards may be granted to one or more Participants upon
such terms and conditions, and at any time and from time to time, as shall be determined by the Committee. A Stock Grant Award grants
the Participant the right to receive (or purchase at such price as determined by the Committee) a designated number of shares of Stock
free of any vesting restrictions. The purchase price, if any, for a Stock Grant Award shall be payable in cash or other form of consideration
acceptable to the Committee. A Stock Grant Award may be granted or sold as described in the preceding sentence in respect of past services
or other valid consideration, or in lieu of any cash compensation due to such Participant.
10.2 STOCK
UNIT AWARDS. Subject to the terms and provisions of the Plan, Stock Unit Awards may be granted to one or more Participants upon
such terms and conditions, and at any time and from time to time, as shall be determined by the Committee. A Stock Unit Award grants the
Participant the right to receive a designated number of shares of Stock, or a cash payment equal to the Fair Market Value (determined
as of a specified date) of a designated number of shares of Stock, in the future free of any vesting restrictions. A Stock Unit Award
may be granted as described in the preceding sentence in respect of past services or other valid consideration, or in lieu of any cash
compensation due to such Participant.
ARTICLE 11
PERFORMANCE SHARES AND PERFORMANCE UNITS
11.1 PERFORMANCE
SHARE AWARDS. Subject to the terms and provisions of the Plan, Performance Share Awards may be granted to one or more Participants
upon such terms and conditions, and at any time and from time to time, as shall be determined by the Committee. A Performance Share Award
grants the Participant the right to receive a specified number of shares of Stock depending on the satisfaction of any one or more Performance
Goals during one or more Performance Periods as determined by the Committee. Unless otherwise provided in the Award Agreement, payment
for vested Performance Shares shall be made in Stock.
11.2 PERFORMANCE
UNIT AWARDS. Subject to the terms and provisions of the Plan, Performance Unit Awards may be granted to one or more Participants
upon such terms and conditions, and at any time and from time to time, as shall be determined by the Committee. A Performance Unit Award
grants the Participant the right to receive a specified number of shares of Stock or a cash payment equal to the Fair Market Value (determined
as of a specified date) of a specified number of shares of Stock depending on the satisfaction of any one or more Performance Goals during
one or more Performance Periods as determined by the Committee. At the discretion of the Committee, the Award Agreement may provide for
payment for vested Performance Unit Awards in cash, shares of Stock of equivalent cash value, or in a combination thereof.
11.3 PERFORMANCE
GOALS; PERFORMANCE PERIODS. The Performance Goal or Goals and Performance Period or Periods applicable to any Performance Share
or Performance Unit Award shall be based on the Performance Goal selected by the Committee and designated in the Award Agreement.
ARTICLE 12
OTHER PROVISIONS APPLICABLE TO ALL AWARDS
12.1 LIMITS
ON TRANSFER.
(a) General.
Except as provided in Section 7.1(f), Section 8.1(f), Section 12.1(b) or Section 12.2,
no right or interest of a Participant in any Award may be pledged, encumbered, or hypothecated to, or in favor of, any party other than
the Company or any Subsidiary, or shall be subject to any lien, obligation, or liability of such Participant to any other party other
than the Company or any Subsidiary and except as otherwise provided by the Committee, no Award shall be assigned, transferred, or otherwise
disposed of by a Participant other than by will or the laws of descent and distribution or as mandated by a domestic relations order (that
would otherwise qualify as a qualified domestic relations order as defined in the Code or Title I of ERISA but for the fact that the order
pertains to an Award) in favor of a spouse or, if applicable, until the expiration of any period during which any restrictions are applicable
or any Performance Period as determined by the Committee. Notwithstanding any provision of the Plan to the contrary, the Incentive Stock
Options granted under the Plan shall not be transferable in any way that would violate Treasury Regulation Section 1.422-(a)(2).
(b) Transfers
to Family Members. The Committee shall have the authority to adopt a policy that is applicable to existing Awards, new Awards,
or both, which permits a Participant to transfer Awards during his or her lifetime to any Family Member. In the event an Award is transferred
as permitted by such policy, such transferred Award may not be subsequently transferred by the transferee (other than another transfer
meeting the conditions set forth in the policy) except by will or the laws of descent and distribution. A transferred Award shall continue
to be governed by and subject to the terms and limitations of the Plan and relevant Award Agreement, and the transferee shall be entitled
to the same rights as the Participant, as if the transfer had not taken place.
12.2 BENEFICIARIES.
Notwithstanding Section 12.1, a Participant may, in the manner determined by the Committee, designate a beneficiary to exercise
the rights of the Participant and to receive any distribution with respect to any Award upon the Participant’s death, and, in accordance
with Section 7.2(d)(3), upon the Participant’s Disability. A beneficiary, legal guardian, legal representative, or other
person claiming any rights pursuant to the Plan is subject to all terms and conditions of the Plan and any Award Agreement applicable
to the Participant, except to the extent the Plan and Award Agreement otherwise provide, and to any additional restrictions deemed necessary
or appropriate by the Committee. If the Participant is married and resides in a community property state, a designation of a person other
than the Participant’s spouse as his beneficiary with respect to more than 50% of the Participant’s interest in the Award
shall not be effective without the prior written consent of the Participant’s spouse. If no beneficiary has been designated or survives
the Participant, payment shall be made to the person entitled thereto pursuant to the Participant’s will or the laws of descent
and distribution. Subject to the foregoing, a beneficiary designation may be changed or revoked by a Participant at any time provided
the change or revocation is provided to the Company.
12.3 STOCK
CERTIFICATES. Notwithstanding anything herein to the contrary, the Company shall not be required to issue or deliver any
certificates evidencing shares of Stock pursuant to the exercise of any Award, unless and until the Board has determined, with advice
of counsel, that the issuance and delivery of such certificates is in compliance with all applicable laws, regulations of governmental
authorities and, if applicable, the requirements of any exchange or quotation system on which the shares of Stock are listed, quoted or
traded. All Stock certificates delivered pursuant to the Plan are subject to any stop-transfer orders and other restrictions as the Committee
deems necessary or advisable to comply with federal, state, or foreign jurisdiction, securities or other laws, rules and regulations
and the rules of any national securities exchange or automated quotation system on which the Stock is listed, quoted, or traded.
The Committee may place legends on any Stock certificate to reference restrictions applicable to the Stock. In addition to the terms and
conditions provided herein, the Board may require that a Participant make such reasonable covenants, agreements, and representations,
as the Board deems advisable in order to comply with any such laws, regulations, or requirements.
12.4 CLAWBACK.
Notwithstanding any provision of the Plan to the contrary, any portion of the payments and benefits provided in connection with any Award
granted pursuant to the Plan shall be subject to recapture or clawback to the fullest extent called for by the Company’s clawback
and recoupment policies, if any, and to the extent necessary to comply with applicable law, including, but not limited to, the final rules issued
by the Securities and Exchange Commission and the requirements of the exchange on which the Stock is then listed pursuant to Section 954
of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, as codified in Section 10D of the Exchange Act, or Section 304
of the Sarbanes-Oxley Act of 2002. The Committee also may include other clawback provisions in the Award Agreement as it determines to
be appropriate. By accepting an Award, each Participant agrees to be bound by, and comply with, the terms of any such recapture or clawback
provisions and with any Company request or demand for recapture or clawback.
ARTICLE 13
CHANGE OF CONTROL
13.1 BOARD
DISCRETION. If a Change of Control occurs, the Committee shall have the authority and discretion, but shall not have the obligation,
to provide, in the Award Agreement or thereafter, that all or part of outstanding Options, SARs, and other Awards shall become fully exercisable
and all or part of the restrictions on outstanding Awards shall lapse. To the extent that this provision causes Incentive Stock Options
to exceed the dollar limitation set forth in Section 7.2(e), the excess Options shall be deemed to be Nonqualified Stock Options.
In addition, upon, or in anticipation of, a Change of Control, the Committee may: (a) cause all or a part of outstanding Awards to
be cancelled and terminated as of a specified date and give each Participant the right to exercise such Awards during a period of time
as the Committee, in its sole discretion, shall determine; or (b) cause all or a part of outstanding Awards to be cancelled and terminated
as of a specified date in exchange for a payment or right to payment pursuant to the terms and conditions set forth in the Change of Control
transaction documents. With respect to an Award which the Company concludes is subject to (and not exempted from) the requirements of
Section 409A, any actions taken by the Committee pursuant to this Article 13 shall be done in compliance with Section 409A
of the Code.
13.2 PARTICIPANT
CONSENT NOT REQUIRED. Nothing in this Article 13 or any other provision of this Plan is intended to provide any Participant
with any right to consent to or object to any transaction that might result in a Change of Control and each provision of this Plan shall
be interpreted in a manner consistent with this intent. Similarly, nothing in this Article 13 or any other provision of this
Plan is intended to provide any Participant with any right to consent to or object to any action taken by the Committee pursuant to this
Article 13.
ARTICLE 14
AMENDMENT, MODIFICATION, AND TERMINATION
14.1 AMENDMENT,
MODIFICATION, AND TERMINATION OF THE PLAN. With the approval of the Board, at any time and from time to time, the Committee
may terminate, amend or modify the Plan; provided, however, that any such action of the Committee shall be subject to the approval of
the shareholders to the extent necessary to comply with any applicable law, regulation, or rule of the stock exchange on which the
shares of Stock are listed, quoted or traded. Without limiting the foregoing, and except as provided in Section 4.4, neither
the Board nor the Committee may, without the approval of shareholders: (a) increase the number of shares available for grant under
the Plan; (b) permit the Committee to grant Options or SARs with an exercise price or base value that is below Fair Market Value
on the Date of Grant; (c) permit the Committee to extend the exercise period for an Option or SAR beyond ten (10) years from
the Date of Grant; (d) reprice or reduce the exercise price or base value of any previously granted Options or SARs (or take any
action that would be treated as a repricing under the stock exchange on which the shares of Stock are listed, quoted or traded; (e) amend
any provision of the Plan to permit the Committee to reprice previously granted Options or SARs; (f) extend the duration of the Plan;
or (g) expand the types of awards available under the Plan or expand the class of participants eligible to participate in the Plan.
14.2 AWARDS
PREVIOUSLY GRANTED. Except as provided in the next sentence, no termination, amendment, or modification of the Plan or
any Award Agreement shall adversely affect in any material way the rights of the holder of any Award previously granted pursuant to the
Plan without the prior written consent of the holder of the Award. The consent of the holder of an Award is not needed if the change:
(a) is required by law or regulation; (b) does not adversely affect in any material way the rights of the holder; or (c) is
required to comply with the provisions of Section 409A of the Code. Additional rules relating to amendments to the Plan or any
Award Agreement to assure compliance with Section 409A of the Code are set forth in Section 15.14.
ARTICLE 15
GENERAL PROVISIONS
15.1 NO
RIGHTS TO AWARDS. No Participant, employee, or other person shall have any right to be selected to receive an Award or
having been so selected to receive a future Award. Neither the Company nor the Committee is obligated to treat Participants, employees,
and other persons uniformly.
15.2 NO
SHAREHOLDERS RIGHTS. No Award gives the Participant any of the rights of a shareholder of the Company unless and until
unrestricted shares of Stock are issued to the Participant or the restrictions on any shares previously issued lapse, except as specifically
otherwise provided in the Plan or the Award Agreement.
15.3 WITHHOLDING.
The Company or any Subsidiary shall have the authority and the right to deduct or withhold, or require a Participant to remit to the Company,
up to the maximum statutory amount necessary (or such lower amount that will not cause an adverse accounting consequence or cost to the
Company), in the applicable jurisdiction, to satisfy any federal, state, and local taxes (including the Participant’s FICA obligation)
required by law to be withheld with respect to any taxable event concerning a Participant arising as a result of this Plan. With the Committee’s
consent as expressed in an Award Agreement or in any policy adopted by the Committee, the Company may permit the Participant to satisfy
a tax withholding requirement by: (a) directing the Company to withhold shares of Stock to which the Participant is entitled pursuant
to the Award in an amount necessary to satisfy the Company’s applicable federal, state, local or foreign income and employment tax
withholding obligations with respect to such Participant; (b) tendering previously-owned shares of Stock held by the Participant
for 6 months or longer to satisfy the Company’s applicable federal, state, local, or foreign income and employment tax withholding
obligations with respect to the Participant; (c) a broker-assisted “cashless” transaction; or (d) personal check
or other cash equivalent acceptable to the Company. To the extent alternative methods of withholding are available under applicable tax
laws, the Company shall have the power to choose among such methods. Notwithstanding the foregoing or the provision of any Award Agreement,
a Participant may not pay the amount of taxes required by law to be withheld using Stock if, in the opinion of counsel to the Company,
there is a substantial likelihood that the use of such form of payment or the timing of such form of payment would subject the Participant
to a substantial risk of liability under Section 16 of the Exchange Act, or there is a substantial likelihood that the use of such
form of payment would result in adverse accounting treatment to the Company.
15.4 NO
RIGHT TO CONTINUED EMPLOYMENT OR SERVICE. Nothing in the Plan or any Award Agreement shall interfere with or limit in any
way the right of the Company or any Subsidiary to terminate any Participant’s employment or services at any time, nor confer upon
any Participant any right to continue in the employ or service of the Company or any Subsidiary.
15.5 UNFUNDED
STATUS OF AWARDS. The Plan is intended to be an “unfunded” plan for incentive compensation. With respect to
any payments not yet made to a Participant pursuant to an Award, nothing contained in the Plan or any Award Agreement shall give the Participant
any rights that are greater than those of a general creditor of the Company or any Subsidiary. Neither the Participant nor any other persons
shall have any interest in any fund or in any specific asset or assets of the Company or any other entity by reason of any Award, except
to the extent provided hereunder.
15.6 RELATIONSHIP
TO OTHER BENEFITS. No payment pursuant to the Plan shall be taken into account in determining any benefits pursuant to
any pension, retirement, savings, profit sharing, group insurance, welfare or other benefit plan of the Company or any Subsidiary, except
as otherwise provided in such plan.
15.7 EXPENSES.
The expenses of administering the Plan shall be borne by the Company.
15.8 TITLES
AND HEADINGS. The titles and headings of the sections in the Plan are for convenience of reference only and, in the event
of any conflict, the text of the Plan, rather than such titles or headings, shall control.
15.9 SECURITIES
LAW COMPLIANCE. With respect to any person who is, on the relevant date, obligated to file reports pursuant to Section 16
of the Exchange Act, transactions pursuant to this Plan are intended to comply with all applicable conditions of Rule 16b-3. Notwithstanding
any other provision of the Plan, the Committee may impose such conditions on the exercise of any Award as may be required to satisfy the
requirements of Rule 16b-3 or its successors pursuant to the Exchange Act. To the extent any provision of the Plan or action by the
Committee fails to so comply, it shall be void to the extent permitted by law and voidable as deemed advisable by the Committee.
15.10 GOVERNMENT
AND OTHER REGULATIONS. The obligation of the Company to make payment of awards in Stock or otherwise shall be subject to
all applicable laws, rules and regulations, and to such approvals by government agencies as may be required. The Company shall be
under no obligation to register pursuant to the Securities Act, any of the shares of Stock paid pursuant to the Plan. If the shares paid
pursuant to the Plan may in certain circumstances be exempt from registration pursuant to the Securities Act, the Company may restrict
the transfer of such shares in such manner as it deems advisable to ensure the availability of any such exemption. The Committee shall
impose such restrictions on any Award as it may deem advisable, including without limitation, restrictions under applicable federal securities
law, under the requirements of the exchange on which the Stock is then listed, quoted, or traded and under any blue sky or state securities
laws applicable to such Award.
15.11 GOVERNING
LAW. The Plan and all Award Agreements shall be construed in accordance with and governed by the laws of the jurisdiction
of incorporation of the Company.
15.12 SUCCESSORS.
All obligations of the Company under the Plan with respect to Awards shall be binding on any successor to the Company, whether the existence
of such successor is the result of a direct or indirect merger, consolidation, purchase of all or substantially all of the business and/or
assets of the Company or otherwise.
15.13 SURVIVAL
OF PROVISIONS. The rights, remedies, agreements, obligations and covenants contained in or made pursuant to this Plan,
any Award Agreements and any notices or agreements made in connection with this Plan shall survive the execution and delivery of such
notices and agreements and the delivery and receipt of such shares of Stock.
15.14 COMPLIANCE
WITH SECTION 409A.
(a) General
Compliance. Some of the types of Awards that may be granted pursuant to the Plan (including, but not necessarily limited to, Restricted
Stock Unit Awards, Performance Share Awards, Performance Unit Awards and Stock Unit Awards) may be considered to be “non-qualified
deferred compensation” subject to the requirements of Section 409A of the Code. If an Award is subject to the requirements
of Section 409A of the Code, the Company intends (but cannot and does not guarantee) that the Award Agreement and this Plan comply
fully with and meet all of the requirements of Section 409A of the Code or an exception thereto and the Award Agreement shall include
such provisions, in addition to the provisions of this Plan, as may be necessary to assure compliance with Section 409A of the Code
or an exception thereto.
(b) Delay
for Specified Employees. If, at the time of a Participant’s Separation from Service, the Company has any Stock which is
publicly traded on an established securities market or otherwise, and if the Participant is considered to be a Specified Employee, to
the extent any payment for any Award is subject to the requirements of Section 409A of the Code and is payable upon the Participant’s
Separation from Service, such payment shall not commence prior to the first business day following the date which is six (6) months
after the Participant’s Separation from Service (or the date of the Participant’s death if earlier than the end of the six
(6) month period). Any amounts that would have been distributed during such six (6) month period will be distributed on the
day following the expiration of the six (6) month period.
(c) Prohibition
on Acceleration or Deferral. Under no circumstances may the time or schedule of any payment for any Award that is subject to the
requirements of Section 409A of the Code be accelerated or subject to further deferral except as otherwise permitted or required
by Section 409A of the Code. If the Company fails to make any payment pursuant to the payment provisions applicable to an Award that
is subject to Section 409A of the Code, either intentionally or unintentionally, within the time period specified in such provisions,
but the payment is made within the same calendar year, such payment will be treated as made within the specified time period. In addition,
in the event of a dispute with respect to any payment, such payment may be delayed in accordance with Section 409A of the Code.
15.15 INDEMNIFICATION.
Each person who is or shall have been a member of the Committee or of the Board, or who has served as the CEO, shall be indemnified and
held harmless by the Company against and from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by
him or her in connection with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he
or she may be involved by reason of any action taken or failure to act under the Plan and against and from any and all amounts paid by
him or her in settlement thereof, with the Company’s approval, or paid by him or her in satisfaction of any judgment in any such
action, suit, or proceeding against him or her, provided he or she shall give the Company an opportunity, at its own expense, to handle
and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification
shall not be exclusive of any other rights of indemnification to which such persons may be entitled under the Company’s Articles
of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless.
GLOSSARY
(a) “Award”
means any Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit, Performance Unit, Performance Share, Stock Grant,
or Stock Unit Award granted to a Participant under the Plan.
(b) “Award
Agreement” means any written agreement, contract, or other instrument or document, including an electronic agreement or document,
evidencing an Award.
(c) “Board”
means the Board of Directors of the Company.
(d) “Cause”
except as otherwise provided in an Award Agreement or separate writing by and between the Participant and the Company and/or any Subsidiary,
means: (i) conviction of, or agreement to a plea of nolo contendere to, a felony, or any crime or offense lesser than a felony involving
the property of the Company or any Subsidiary or to any crime or offense that materially damages, or could materially damage the reputation
of the Company or any Subsidiary; (ii) conduct that has caused, or could cause, demonstrable and serious injury to the shareholders,
the Company or any Subsidiary, monetary or otherwise; (iii) willful refusal to perform or substantial disregard of duties properly
assigned to the Participant; (iv) breach of duty of loyalty to the Company or any Subsidiary, other acts of fraud or dishonesty with
respect to the Company or any Subsidiary, a Participant’s willful malfeasance, willful gross misconduct, or willful dishonesty that
materially harms, or could materially harm, the shareholders, the Company or any Subsidiary; (v) violation of the Company's code
of conduct or code of ethics; (vi) a Participant’s willful failure to reasonably cooperate with, or a Participant’s impedance
or interference with, an investigation authorized by the Board; or (vii) a Participant’s breach of any non-competition, non-solicitation,
confidentiality, or similar covenant in any written agreement entered into with the Company or any Subsidiary.
(e) “Change
of Control” means and shall be deemed to have occurred as of the date of the occurrence of any of the following events: (i) any
person, or more than one person acting as a group (as determined in accordance with Treasury Regulation § 1.409A-3(i)(5)), acquires
(or has acquired during the 12-month period ending on the most recent acquisition by such person or persons) ownership of stock of Company
possessing 50% or more of the total voting power of the stock of Company; (ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Company; (iii) a liquidation, dissolution or winding up of the Company; or (iv) the merger
or consolidation of the Company in which the Stock outstanding immediately prior to such merger or consolidation continue to represent,
or are converted into or exchanged for shares that represent, immediately following such merger or consolidation at least a majority,
by voting power, of the shares of the surviving or resulting corporation.
The acquisition of stock of
the Company or voting power of the stock of the Company by a Permitted Transferee, or the transfer of assets to a Permitted Transferee,
will be disregarded for purposes of determining whether a “Change of Control” has occurred. In addition, a transfer to an
entity, or acquisition by an entity, shall be disregarded for purposes of this Plan and will not be treated as a “Change of Control,”
if immediately after such transfer or acquisition, Permitted Transferees own a majority of outstanding equity interests of the entity
to which the assets are transferred. The transfer of equity interests or assets of the Company in connection with a bankruptcy filing
by or against the Company under Title 11 of the United States Code will not be considered to be a “Change of
Control” for purposes of this Plan.
The consummation of any of
the transactions contemplated by the Merger Agreement shall not constitute a “Change of Control.” Relatedly, any transaction
with Revelstone and its respective affiliates, shall not constitute a “Change of Control.”
Notwithstanding the foregoing,
(A) a Change of Control shall not occur for purposes of this Plan in the case of Awards that are subject to the requirements of Section 409A
of the Code unless such Change of Control constitutes a “change in control event” as defined in Section 409A of the Code
and the regulations thereunder and (B) the term “Change of Control” with respect to any Restricted Stock Unit issued
to a Participant pursuant to the Merger Agreement as Earnout Consideration (as defined in the Merger Agreement) shall have the meaning
set forth in the Merger Agreement.
(f) “Chief
Executive Officer” or “CEO” means the President and Chief Executive Officer of the Company.
(g) “Code”
means the Internal Revenue Code of 1986, as amended. All references to the Code shall be interpreted to include a reference to any applicable
rules, regulations, rulings or other official guidance promulgated pursuant to such section of the Code.
(h) “Committee”
except as Section forth in Section 3.1, means the Compensation Committee of the Board. At all times the Committee shall
consist of at least two (2) or more individuals, each of whom qualifies as a “non-employee director” (as defined in Rule 16b-3
under the General Rules and Regulations of the Exchange Act).
(i) “Company”
means Set Jet, Inc., a Delaware corporation.
(j) “Consultant”
means any consultant, adviser, or independent contractor who provides services to the Company or a Subsidiary as an independent contractor
and not as an employee; provided that the Consultant may become a Participant in this Plan only if he or she (i) is a natural person;
(ii) provides bona fide services to the Company or a Subsidiary; (iii) provides services that are not in connection with the
offer or sale of the Company’s securities in a capital-raising transaction and do not promote or maintain a market for the Company’s
securities; and (iv) qualifies as a consultant under the applicable rules of the Securities and Exchange Commission for registration
of shares of stock on a Form S-8 registration statement.
(k) “Date
of Grant” means, as determined by the Committee (or CEO with respect to an Award granted pursuant to Section 3.4),
the latest to occur of: (i) the date as of which the Committee (or CEO) approves an Award, (ii) the date on which an Award to
a prospective employee, officer, or member of the Board first becomes effective, or (iii) such other date as may be specified in
the Award Agreement.
(l) “Disability”
means “disability” as that term is defined in Section 22(e)(3) of the Code unless a different definition is provided
in the Award Agreement.
(m) “Effective
Date” has the meaning ascribed to it in Section 2.1.
(n) “Exchange
Act” means the Securities Exchange Act of 1934, as amended. All references to the Exchange Act shall be interpreted to include
a reference to any applicable rules, regulations, rulings or other official guidance promulgated pursuant to such section of the Exchange
Act.
(o) “ERISA”
means the Employee Retirement Income Security Act of 1974, as amended. All references to ERISA shall be interpreted to include a reference
to any applicable rules, regulations, rulings or other official guidance promulgated pursuant to such section of the ERISA.
(p) “Fair
Market Value” means, as of any given date: (i) the closing price for the Stock as reported on the exchange upon which the
Stock is then listed on that date or the closing price for the Stock on the immediately preceding date or, if no such prices are reported
on either such date, the closing price on the last day on which such prices were reported; or (ii) the closing price for the Stock
as reported on the exchange upon which the Stock is then listed on that date immediately preceding the Date of Grant.
(q) “Family
Member” means a Participant’s spouse and any parent, stepparent, grandparent, child, stepchild, or grandchild, including
adoptive relationships or a trust or any other entity in which these persons (or the Participant) have more than 50% of the beneficial
interest or voting interest, or any other person or entity who is identified as a “family member” under the applicable rules of
the Securities and Exchange Commission for registration of shares of stock on a Form S-8 registration statement.
(r) “Incentive
Stock Option” means an Option granted pursuant to and in compliance with Section 7.2.
(s) “Non-Employee
Director” means a member of the Board who is not a common-law employee of the Company.
(t) “Nonqualified
Stock Option” means an Option granted pursuant to Section 7.1 that is not intended to be an Incentive Stock Option.
(u) “Option”
means a right granted to a Participant pursuant to Article 7. An Option may be either an Incentive Stock Option or a Nonqualified
Stock Option.
(v) “Participant”
means a person who has been granted an Award.
(w) “Performance
Goals” means, for a Performance Period, the goals established in writing by the Committee for the Performance Period. The Performance
Goals may be expressed in terms of overall Company performance or the performance of a division, business unit, plant, or an individual.
The Performance Goals may be stated in terms of absolute levels or relative to another company or companies or to an index or indices.
(x) “Performance
Period” means the one or more periods of time, which may be of varying and overlapping durations, as the Committee may select,
over which the attainment of one or more Performance Goals will be measured for the purpose of determining a Participant’s right
to, and the payment of, an Award.
(y) “Performance
Share” means a right granted to a Participant pursuant to Section 11.1.
(z) “Performance
Unit” means a right granted to a Participant pursuant to Section 11.2.
(aa) “Permitted
Transferee” means: (i) the Company or Revelstone or any subsidiary or affiliate of the Company or Revelstone; (ii) any
shareholder of the Company; (iii) any Subsidiary of the Company; (iv) any employee benefit plan established or maintained for
the benefit of some or all of the employees of the Company or any Subsidiary; or (v) any trust, partnership, corporation, limited
liability company, limited partnership, or other entity established or created by any shareholder of the Company, but only if, and so
long as such shareholder or members of his or her immediate family is or are the owners or holders of a majority of all the classes or
forms of voting ownership or beneficiary interests in such an entity.
(bb) “Plan”
means this Set Jet, Inc. Omnibus Equity Incentive Plan as it may be amended from time to time.
(cc) “Restricted
Stock” means Stock granted to a Participant pursuant to Section 9.1.
(dd) “Restricted
Stock Unit” means a right granted to a Participant pursuant to Section 9.2.
(ee) “Securities
Act” means the Securities Act of 1933, as amended. All references to the Securities Act shall be interpreted to include a reference
to any applicable rules, regulations, rulings or other official guidance promulgated pursuant to such section of the Securities Act.
(ff) “Separation
from Service” is a term that applies only in the context of an Award that the Company concludes is subject to Section 409A
of the Code. In that limited context, the term “Separation from Service” shall have the meaning ascribed to it in Treasury
Regulation Section 1.409A-1(h)(applying the default rules of Treasury Regulation Section 1.409A-1(h)). In the case of
a Non-Employee Director, Separation from Service means that such member has ceased to be a member of the Board. Whether an independent
contractor or Consultant has incurred a Separation from Service will be determined in accordance with Treasury Regulation Section 1.409A-1(h).
(gg) “Specified
Employee” shall have the meaning ascribed to it in Section 409A(a)(2)(B)(i) of the Code.
(hh) “Stock”
means the Class A common stock of the Company or any security that may be substituted for Stock or into which Stock may be changed
pursuant to Article 4.
(ii) “Stock
Appreciation Right” or “SAR” means a right granted to a Participant pursuant to Article 8.
(jj) “Stock
Grant Award” means the grant of Stock to a Participant pursuant to Section 10.1.
(kk) “Stock
Unit” means a right granted to a Participant pursuant to Section 10.2.
(ll) “Subsidiary”
means any direct or indirect entity in which the Company owns, directly or indirectly, at least 50% of the ownership interest in such
entity.
(mm) “Termination
of Employment” or “Termination of Service” means the cessation of performance of services for the Company.
For this purpose, the transfer of a Participant among the Company and any Subsidiary, or transfer from a position as a member of the Board
to Employee, shall not be considered a Termination of Service or a Termination of Employment with the Company. In the context of an Award
that is subject to the requirements of Section 409A of the Code, the terms “Termination of Service” and “Termination
of Employment” mean a Separation from Service.
Exhibit 4.1
NEITHER THIS SECURITY NOR THE SECURITIES FOR
WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH
SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED
IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
COMMON STOCK PURCHASE WARRANT
REVELSTONE CAPITAL ACQUISITION CORP.
| Warrant Shares: [●] | |
Initial Exercise
Date: [·], 2023 |
THIS COMMON STOCK PURCHASE
WARRANT (the “Warrant”) certifies that, for value received, [·]
or its assigns or successors in interest (the “Holder”) is entitled, upon the terms and subject to the limitations
on exercise and the conditions hereinafter set forth, at any time on or after the date hereof (the “Initial Exercise Date”)
and on or prior to the close of business on the ten year anniversary of the Initial Exercise Date (the “Termination Date”)
but not thereafter, to subscribe for and purchase from Revelstone Capital Acquisition Corp., a Delaware corporation (the “Company”),
up to [●] shares (as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase
price of one share of Common Stock under this Warrant shall be equal to the Exercise Price (as defined in Section 2(c) hereof).
Section 1. Definitions.
Capitalized terms used and not otherwise defined herein shall have the meanings set forth in those certain Subscription Agreements (collectively,
the “Subscription Agreement”), dated [·], 2023, among the Company
and the purchasers signatory thereto.
Section 2. Exercise.
a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on
or after the Initial Exercise Date and on or before the Termination Date by delivery of a duly executed PDF copy submitted by e-mail
(or e-mail attachment) of the Notice of Exercise form annexed hereto to each of the e-mail delivery recipients set forth on Exhibit A
hereto, and within five (5) Trading Days of the date said Notice of Exercise is delivered to the Company, the Company shall have
received payment of the aggregate Exercise Price of the shares thereby purchased payable at the Holder’s election (i) by certified
or official bank check or by wire transfer to an account designated by the Company, or (ii) by “cashless exercise” in
accordance with the provisions of subsection (b) below. No ink-original Notice of Exercise shall be required, nor shall any medallion
guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the
contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of
the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant
to the Company for cancellation within five (5) Trading Days of the date the final Notice of Exercise is delivered to the Company.
Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall
have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number
of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the
date of such purchases. The Company shall use its commercially reasonable efforts to deliver any objection to any Notice of Exercise
Form within One (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant,
acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares
hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the
face hereof.
b) Cashless
Exercise. If at the time of exercise hereof there is no effective registration statement registering the Warrant Shares, or the prospectus
contained therein is not available for the resale of the Warrant Shares by the Holder, then this Warrant may also be exercised, in whole
or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant
Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A) = | as applicable:
(i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice
of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to
Section 2(a) hereof on a day that is not a Trading Day or (2) both executed
and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening
of “regular trading hours” (as defined in Rule 600(b) of Regulation
NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the
option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the
date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on
the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”)
as of the time of the Holder’s execution of the applicable Notice of Exercise if such
Notice of Exercise is executed during “regular trading hours” on a Trading Day
and is delivered within two (2) hours thereafter (including until two (2) hours
after the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof
or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such
Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered
pursuant to Section 2(a) hereof after the close of “regular trading hours”
on such Trading Day; |
| (B) = | the Exercise Price
of this Warrant, as adjusted hereunder; and |
| (X) = | the number of Warrant
Shares that would be issuable upon exercise of this Warrant in accordance with the terms
of this Warrant if such exercise were by means of a cash exercise rather than a cashless
exercise. |
If Warrant Shares
are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities
Act, the holding period of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. The Company
agrees not to take any position contrary to this Section 2(b).
“Bid Price”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading
Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New York
City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock
is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market
(or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common
Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the
Company, the fees and expenses of which shall be paid by the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New
York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock
is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market
(or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common
Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the
Company, the fees and expenses of which shall be paid by the Company.
c) Exercise
Price. The exercise price per share of the Common Stock under this Warrant shall be $[·],
subject to adjustment hereunder (the “Exercise Price”).
d) Mechanics
of Exercise.
i. Delivery
of Certificates Upon Exercise. Certificates for shares purchased hereunder shall be transmitted by the Transfer Agent to the Holder
by crediting the account of the Holder’s or its designee’s prime broker with The Depository Trust Company through its Deposit
or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there
is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder
or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner of sale limitations pursuant to Rule 144
(assuming cashless exercise of the Warrants), and otherwise by physical delivery of a certificate, registered in the Company’s
share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to
such exercise to the address specified by the Holder in the Notice of Exercise by the date that is by the date that is the earliest of
(i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after
delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement
Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”).
Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of
the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares,
provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier
of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery
of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise
by the second Trading Day after Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and
not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the
applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth Trading Day after the Warrant Share
Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds
such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains
outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed
in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date
of delivery of the Notice of Exercise.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the certificate or certificates representing Warrant Shares, deliver
to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant,
which new Warrant shall in all other respects be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder a certificate or the certificates representing
the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind
such exercise.
iv. Compensation
for Buy-In on Failure to Timely Deliver Certificates Upon Exercise. In addition to any other rights available to the Holder, if the
Company fails to cause the Transfer Agent to transmit to the Holder a certificate or the certificates representing the Warrant Shares
in accordance with the provisions of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery
Date, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s
brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which
the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the
Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the
Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order
giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant
and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded)
or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise
and delivery obligations hereunder. For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover
a Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate sale price giving rise to such purchase obligation
of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder
shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the
Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available
to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect
to the Company’s failure to timely deliver certificates representing shares of Common Stock upon exercise of the Warrant as required
pursuant to the terms hereof.
v. No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Exercise Price or round up to the next whole share.
vi. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and
such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company
may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company
shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company
(or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise
as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting
as a group together with the Holder or any of the Holder’s Affiliates), would beneficially own in excess of the Beneficial Ownership
Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned
by the Holder and its Affiliates shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect
to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise
of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates and (ii) exercise
or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other
Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially
owned by the Holder or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 2(e),
beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation
is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to
be filed in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates) and of which
portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall
be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the
Holder together with any Affiliates) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership
Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination
as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the
rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares
of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most
recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company
or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding.
Upon the written or oral request of a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder the
number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined
after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates
since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation”
shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common
Stock issuable upon exercise of this Warrant. The Holder, upon not less than 61 days’ prior notice to the Company, may increase
or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation
in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of
shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue
to apply. Any such increase or decrease will not be effective until the 61st day after such notice is delivered to the Company.
The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of
this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended
Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to
such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
Section 3. Certain
Adjustments.
a) Adjustments
for Stock Splits, Combinations, Certain Dividends and Distributions. If the Company shall, at any time or from time to time after
the Initial Exercise Date, effect a split of the outstanding Common Stock (or any other subdivision of its shares of Common Stock into
a larger number of shares of Common Stock), combine the outstanding shares of Common Stock into a smaller number of shares of Common
Stock, or make or issue or set a record date for the determination of holders of Common Stock entitled to receive a dividend or other
distribution payable in shares of Common Stock, then, in each event (i) the number of shares of Common Stock for which this Warrant
shall be exercisable immediately after the occurrence of any such event shall be adjusted to equal the number of shares of Common Stock
that a record holder of the same number of shares of Common Stock for which this Warrant is exercisable immediately prior to the occurrence
of such event would own or be entitled to receive after the happening of such event, and (ii) the Exercise Price then in effect
shall be adjusted to equal (A) the Exercise Price then in effect multiplied by the number of shares of Common Stock for which this
Warrant is exercisable immediately prior to the adjustment divided by (B) the number of shares of Common Stock for which this Warrant
is exercisable immediately after such adjustment.
b) Adjustment
for Other Dividends and Distributions. If the Company shall, at any time or from time to time after the Initial Exercise Date, make
or issue or set a record date for the determination of holders of Common Stock entitled to receive a dividend or other distribution payable
in (i) cash, (ii) any evidences of indebtedness, or any other securities of the Company or any property of any nature whatsoever,
other than, in each case, shares of Common Stock; or (iii) any warrants or other rights to subscribe for or purchase any evidences
of indebtedness, or any other securities of the Company or any property of any nature whatsoever, other than, in each case, shares of
Common Stock, then, and in each event, (A) the number of shares of Common Stock for which this Warrant shall be exercisable shall
be adjusted to equal the product of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such
adjustment multiplied by a fraction (1) the numerator of which shall be the last closing bid price per share of the Common Stock
at the date of taking such record and (2) the denominator of which shall be such last closing bid price per share of the Common
Stock minus the amount allocable to one share of Common Stock of any such cash so distributable and of the fair value (as determined
in good faith by the Board) of any and all such evidences of indebtedness, shares of stock, other securities or property or warrants
or other subscription or purchase rights so distributable, and (B) the Exercise Price then in effect shall be adjusted to equal
(1) the Exercise Price then in effect multiplied by the number of shares of Common Stock for which this Warrant is exercisable immediately
prior to the adjustment divided by (2) the number of shares of Common Stock for which this Warrant is exercisable immediately after
such adjustment. A reclassification of the Common Stock (other than a change in par value, or from par value to no par value or from
no par value to par value) into shares of Common Stock and shares of any other class of stock shall be deemed a distribution by the Company
to the holders of its Common Stock of such shares of such other class of stock within the meaning of this Section 3(b) and,
if the outstanding shares of Common Stock shall be changed into a larger or smaller number of shares of Common Stock as a part of such
reclassification, such change shall be deemed a subdivision or combination, as the case may be, of the outstanding shares of Common Stock
within the meaning of Section 3(a).
c) Adjustments
for Reclassification, Exchange or Substitution. If the Common Stock for which this Warrant is exercisable at any time or from time
to time after the Initial Exercise Date shall be changed to the same or different number of shares of any class or classes of stock,
whether by reclassification, exchange, substitution or otherwise (other than by way of a stock split or combination of shares or stock
dividends provided for in Section 3(a), Section 3(b), or a reorganization, merger, consolidation, or sale of assets provided
for in Section 3(d)), then, and in each event, an appropriate revision to the Exercise Price shall be made and provisions shall
be made (by adjustments of the Exercise Price or otherwise) so that, upon any subsequent exercise of this Warrant, the Holder shall have
the right to receive, in lieu of Warrant Stock, the kind and amount of shares of stock and other securities receivable upon reclassification,
exchange, substitution or other change, by holders of the number of shares of Common Stock for which this Warrant was exercisable immediately
prior to such reclassification, exchange, substitution or other change, all subject to further adjustment as provided herein.
d) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related
transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company (or any Subsidiary),
directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange
offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender
or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding
Common Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in
one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property,
or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement
or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement)
with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding shares of Common
Stock or more than 50% of the voting power of the common equity of the Company (each a “Fundamental Transaction”),
then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have
been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without
regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor
or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate
Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock
for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on
the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted
to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock
in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable
manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given
any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same
choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding
anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at
the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction
(or, if later, the date of the public announcement of the consummation of the applicable Fundamental Transaction), purchase this Warrant
from the Holder by paying to the Holder an amount equal to the Black Scholes Value of the remaining unexercised portion of this Warrant
on the date of the consummation of such Fundamental Transaction. The Holder shall only be entitled to receive from the Company or any
Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion
of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental Transaction,
whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock are given
the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided,
further, that if holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction,
such holders of Common Stock will be deemed to have received common stock of the Successor Entity (which Entity may be the Company following
such Fundamental Transaction) in such Fundamental Transaction. Notwithstanding the foregoing, the Acquisition shall not be deemed a Fundamental
Transaction. “Black Scholes Value” means the value of this Warrant based on the Black Scholes Option Pricing Model
obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”) determined as of the day of consummation
of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the
U.S. Treasury rate for a period equal to the time between the date of the public announcement of the contemplation of the applicable
Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility
obtained from the HVT function on Bloomberg (determined utilizing a 365-day annualization factor) as of the Trading Day immediately following
the public announcement of the contemplation of the applicable Fundamental Transaction, (C) the underlying price per share used
in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of
any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the greater of (x) the last VWAP
immediately prior to the public announcement of the contemplation of such Fundamental Transaction and (y) the last VWAP immediately
prior to the consummation of such Fundamental Transaction, (D) a remaining option time equal to the time between the date of the
public announcement of the contemplation of the applicable Fundamental Transaction and the Termination Date and (E) a zero cost
of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds (or such other consideration)
within the later of (i) five Business Days of the Holder’s election and (ii) the date of the consummation Fundamental
Transaction). The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the
“Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction
Documents in accordance with the provisions of this Section 3(d). The Company shall ensure that the terms of any agreement pursuant
to which a Fundamental Transaction is effected shall include terms requiring any such successor or surviving entity to comply with the
provisions of this Section 3(d) and ensuring that this Warrant (or any such replacement security) will be similarly
adjusted upon any subsequent transaction or series of related transactions analogous to a Fundamental Transaction. The Company shall,
at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written
instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital
stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise
of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an
exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value
of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of
shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior
to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon
the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the term “Company” under this
Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction, each and every provision of this Warrant
and the other Transaction Documents referring to the “Company” shall refer instead to each of the Company and the Successor
Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the
Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume
all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents with the same effect as if
the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein.
e) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For
purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be
the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f) Notice
to Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the
Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection
with any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party,
any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock
is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the
Holder at its last email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the
applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders
of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or
(y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective
or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares
of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer
or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect
the validity of the corporate action required to be specified in such notice. To the extent that any notice provided hereunder constitutes,
or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file
such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant
during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise
be expressly set forth herein.
Section 4. Transfer
of Warrant.
a) Transferability.
Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof and to the provisions
of Section 4.1 of the Subscription Agreement, this Warrant and all rights hereunder (including, without limitation, any registration
rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated
agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its
agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if
required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as
applicable, and in the denomination or denominations reasonably requested in such instrument of assignment, and shall issue to the assignor
a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything
herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned
this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within five (5) Trading Days of the
date this Warrant is assigned in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for
the purchase of Warrant Shares without having a new Warrant issued.
b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or
its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Initial Exercise Date and shall be substantially
identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder
of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
d) Transfer
Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this
Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities Act and under applicable
state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information
requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the Holder or transferee
of this Warrant, as the case may be, comply with the provisions of the Subscription Agreement and applicable securities laws.
e) Representation
by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise
hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or
reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant
to sales registered or exempted under the Securities Act.
Section 5. Miscellaneous.
a) No
Rights as Stockholder Until Exercise. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as
a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), nor shall anything contained in this
Warrant be construed to confer upon the Holder, as such, any of the rights of a stockholder of the Company or any right to vote, give,
or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger,
conveyance, or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, except as expressly set
forth in Section 3.
b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or
granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next succeeding Business
Day.
d) Authorized
Shares. The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued
Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights
under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who
are charged with the duty of executing stock certificates to execute and issue the necessary certificates for the Warrant Shares upon
the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure
that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements
of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon
the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant
and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free
from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously with such issue).
Except and to the
extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate
of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be reasonably necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take all such action as may be reasonably necessary or appropriate in order
that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use
commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction
thereof, as may be, reasonably necessary to enable the Company to perform its obligations under this Warrant.
Before taking any
action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price,
the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be reasonably necessary from any
public regulatory body or bodies having jurisdiction thereof.
e) Jurisdiction.
All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance
with the provisions of this Warrant and the Subscription Agreement.
f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact that all rights
hereunder terminate on the Termination Date. Without limiting any other provision of this Warrant or the Subscription Agreement, if the
Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder,
the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to,
reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant
hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices.
Any notice, request or other document required or permitted to be given or delivered to the Holder or the Company shall be delivered
in accordance with the notice provisions of the Subscription Agreement.
i) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the
Company.
j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the prior written consent of the Company and the holders
of a majority of the then outstanding warrants issued pursuant to the Subscription Agreement.
m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this
Warrant.
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(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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REVELSTONE CAPITAL ACQUISITION CORP. |
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By: |
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Name: Morgan Callagy |
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Title: Co-CEO |
NOTICE OF EXERCISE
To: Revelstone
Capital Acquisition Corp.
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised
in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Please
issue a certificate or certificates representing said Warrant Shares in the name of the undersigned or in such other name as is specified
below:
The Warrant Shares shall be
delivered to the following DWAC Account Number or by physical delivery of a certificate to:
(3) Accredited
Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act
of 1933, as amended.
(4) The
undersigned intends that payment of the Exercise Price shall be made as (check one):
Cash Exercise ________________
Cashless Exercise _________________
[SIGNATURE OF HOLDER]
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| Signature of Authorized Signatory of Investing Entity: |
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| Name of Authorized Signatory: |
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ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, [_______]
shares of the foregoing Warrant and all rights evidenced thereby are hereby assigned to
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Dated: | |
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Holder’s Signature: | |
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Holder’s Address: | |
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NOTE: The signature to this Assignment Form must
correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatsoever, and must
be guaranteed by a bank or trust company. Officers of corporations and those acting in a fiduciary or other representative capacity should
file proper evidence of authority to assign the foregoing Warrant.
Exhibit A
E-Mail Recipients For Warrant Exercises
| · | The Company’s
CEO, who until further notice is Tom Smith: tom@setjet.com |
| · | The Company’s
CFO, who until further notice is Jim Barnes: jim@setjet.com |
| · | The Company’s
outside legal counsel, who until further notice is: Dan Mahoney dmahoney@swlaw.com and Joshua
Schneiderman jschneiderman@swlaw.com |
Exhibit 10.1
PARENT SUPPORT AGREEMENT
THIS PARENT SUPPORT AGREEMENT
(this “Agreement”) is made and entered into as of July 17, 2023, by and among Set Jet, Inc., a Nevada corporation
(the “Company”), Revelstone Capital Acquisition Corp., a Delaware corporation (“Parent”), Revelstone
Capital Merger Sub, Inc., a Delaware corporation (“Merger Sub”) and the stockholders of Parent listed on Schedule
A hereto (“Securityholders”). Capitalized terms used but not defined herein are used as they are defined in the
Merger Agreement (as defined below).
RECITALS:
A. Each
Securityholder beneficially owns and has the sole power to dispose of (or sole power to cause the disposition of) the shares of capital
stock set forth opposite such Securityholder’s name on Schedule A hereto (such shares of capital stock, together with any
New Securities, as defined in and pursuant to Section 3, of such Securityholder, are collectively referred to herein as the “Subject
Securities”).
B. Upon
the satisfaction or waiver of the terms and conditions of the Merger Agreement by and among the Company, Parent, Merger Sub and Thomas
P. Smith, as Securityholder Representative, dated as of the date hereof (as amended, restated or supplemented from time to time, the “Merger
Agreement”), Merger Sub will merge with and into the Company, after which the Company to be the surviving corporation of such
merger (the “Merger”).
C. Each
Securityholder believes that the terms of the Merger and the Merger Agreement are fair and that it is in such Securityholder’s best
interest as holder of the Subject Securities that the Merger and the other transactions contemplated by the Merger Agreement (collectively,
the “Transactions”) be consummated.
D. In
order to induce the Company and Parent to enter into the Merger Agreement and in consideration of the execution thereof by the Company
and Parent and to enhance the likelihood that the Transactions will be consummated, each Securityholder, solely in such Securityholder’s
capacity as holder of the Subject Securities, has entered into this Agreement and agrees to be bound hereby.
NOW THEREFORE, in consideration
of the promises and the covenants and agreements set forth below, and for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
1. No
Transfer of Subject Securities. During the term of this Agreement, no Securityholder shall cause or permit any Transfer (as defined
below) of any of the Subject Securities or enter into any agreement, option, derivative, hedging or arrangement with respect to a Transfer
of any of the Subject Securities. Following the date hereof and except as required by this Agreement, no Securityholder shall deposit
(or permit the deposit of) any Subject Securities in a voting trust or grant any proxy or enter into any voting agreement or similar agreement
with respect to any of the Subject Securities or in any way grant any other Person any right whatsoever with respect to the voting or
disposition of the Subject Securities. For purposes hereof, a Person shall be deemed to have effected a “Transfer”
of Subject Securities if such Person directly or indirectly: (a) sells, pledges, encumbers, grants an option with respect to, transfers,
assigns, or otherwise disposes of any Subject Securities, or any interest in such Subject Securities; or (b) enters into an agreement
or commitment providing for the sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of
such Subject Securities or any interest therein.
2. No
Redemption. Each Securityholder hereby agrees that, during the term of this Agreement, it shall not redeem any Subject Securities,
submit a request to Parent or any transfer agent of Parent to redeem any Subject Securities, or otherwise exercise any right to redeem
any Subject Securities.
3. New
Securities. During the term of this Agreement, in the event that (a) any shares of capital stock or other equity securities of
Parent are issued to a Securityholder after the date of this Agreement pursuant to any stock dividend, stock split, recapitalization,
reclassification, combination or exchange of Parent securities owned by such Securityholder, (b) a Securityholder purchases or otherwise
acquires beneficial ownership of any shares of capital stock or other equity securities of Parent after the date of this Agreement, or
(c) a Securityholder acquires the right to vote or share in the voting of any shares of capital stock or other equity securities
of Parent after the date of this Agreement (such shares of capital stock or other equity securities of Parent, collectively the “New
Securities”), then such New Securities acquired or purchased by such Securityholder shall be subject to the terms of this Agreement
to the same extent as if they constituted the Subject Securities as of the date hereof.
4. No
Challenge. Each Securityholder agrees not to commence, join in, facilitate, assist or encourage, and agrees to take all actions necessary
to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Parent, Merger Sub, the Company
or any of their respective successors or directors (a) challenging the validity of, or seeking to enjoin the operation of, any provision
of this Agreement or (b) alleging a breach of any fiduciary duty of any Person in connection with the evaluation, negotiation or
entry into the Merger Agreement.
5. Waiver.
Each Securityholder hereby irrevocably and unconditionally waives, and agrees not to exercise, any rights of appraisal, dissenter’s
rights and any similar rights under applicable law relating to the Merger and the consummation of the Transactions, including any notice
requirements.
6. Agreement
to Vote Shares. During the term of this Agreement, at any meeting of stockholders of Parent (whether annual or special), however called,
or at any adjournment or postponement thereof, in any action by written consent of the stockholders of Parent or in any other circumstances
upon which a Securityholder’s vote, consent or other approval is sought, such Securityholder shall (and shall execute such additional
documents or certificates evidencing such agreement as the Company may reasonably request in connection therewith) to (a) (i) when
such meeting is held, appear at such meeting or otherwise cause the Subject Securities to be counted as present thereat for the purpose
of establishing a quorum, (ii) vote (or cause to be voted or consented to), as applicable, or validly execute and return an action
by written consent or an action to cause such consent to be granted with respect to, all of the Subject Securities that are then entitled
to be voted at any meeting of the Parent’s stockholders or written consent of the Parent’s stockholders related to the Transactions
or the Merger Agreement (A) in favor of the approval of the Transactions, the approval and adoption of the Merger Agreement and the
approval of the terms of the Merger Agreement, the other agreements reflected therein and this Agreement, (B) in favor of any other
matter reasonably necessary to the consummation of the transactions contemplated by the Merger Agreement and considered and voted upon
by the stockholders of Parent, (C) in favor of the approval of the Parent Proposals (as defined in the Merger Agreement) and (D) against
any proposal, amendment, matter or agreement that would in any manner (i) impede, frustrate, interfere with, prevent, adversely affect
or nullify the Transactions or any provision of the Merger Agreement or this Agreement, (ii) result in a breach in any respect of
any covenant, representation or warranty or other obligation or agreement of Parent or Merger Sub under the Merger Agreement, (iii) result
in any of the conditions set forth in Article IX of the Merger Agreement not being fulfilled, or (iv) result in a breach in
any respect of any covenant, representation or warranty or other obligation or agreement of a Securityholder contained in this Agreement
or any Additional Agreement to which a Securityholder is a party. Each Securityholder agrees that the Subject Securities held by him,
her or it that are entitled to be voted shall be voted (or caused to be voted) as set forth in the preceding sentence whether or not such
Securityholder’s vote, consent or other approval is sought on only one or on any combination of the matters set forth in clauses
(A)–(D) above and at any time or at multiple times during the term of this Agreement. The obligations of a Securityholder specified
in this Section 6 shall apply whether or not the Merger or any action described above is recommended by Parent’s Board of Directors
or Parent’s Board of Directors has effected an Alternative Transaction (as defined in the Merger Agreement).
7. Opportunity
to Review. Each Securityholder acknowledges receipt and review of the Merger Agreement and represents that he, she, or it has had
(a) the opportunity to review, and has read, reviewed and understands, the terms and conditions of the Merger Agreement and this
Agreement, and (b) the opportunity to review and discuss the Merger Agreement, the Transactions and this Agreement with his, her
or its own advisors and legal counsel.
8. Public
Disclosure. From the date of this Agreement until the Closing or termination of the Merger Agreement, no Securityholder shall make
any public announcements regarding this Agreement, the Merger Agreement or the transactions contemplated hereby or thereby. Each Securityholder
understands that it may be the recipient of confidential information of the Company during the term of this Agreement and that such information
may contain or constitute material non-public information concerning the Company, Parent or their Affiliates. Each Securityholder acknowledges
that trading in the securities of any party to this Agreement while in possession of material nonpublic information or communicating that
information to any other Person who trades in such securities could subject the applicable party to liability under the U.S. federal and
state securities laws, and the rules and regulations promulgated thereunder, including Section 10(b) of the Securities
Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder. Each Securityholder agrees that such Securityholder and
such Securityholder’s Affiliates will not disclose confidential information of the Company in its possession, nor will it trade
in the securities of the Company or Parent while in possession of material nonpublic information or at all until such Securityholder and
such Securityholder’s Affiliates can do so in compliance with all applicable laws and without breach of this Agreement.
9. Consent
to Disclosure. Each Securityholder hereby consents to the publication and disclosure in the Form S-4 and the Proxy Statement
(and, as and to the extent otherwise required by applicable securities Laws or the SEC or any other securities authorities, any other
documents or communications provided by Parent or the Company to any Authority or to securityholders of Parent or the Company) of such
Securityholder’s identity and beneficial ownership of the Subject Securities and the nature of such Securityholder’s commitments,
arrangements and understandings under and relating to this Agreement and, if deemed appropriate by Parent or the Company, a copy of this
Agreement. Each Securityholder will promptly provide any information reasonably requested by Parent or the Company for any regulatory
application or filing made or approval sought in connection with the Transactions (including filings with the SEC). No Securityholder
shall issue any press release or otherwise make any public statements with respect to the Transactions or the transactions contemplated
herein without the prior written approval of the Company and Parent.
10. Representations
and Warranties of Securityholder. Each Securityholder hereby represents and warrants as follows:
(a) Such
Securityholder (i) is the record and beneficial owner of such Securityholder’s Subject Securities, free and clear of any liens,
adverse claims, charges or other encumbrances of any nature whatsoever (other than pursuant to (x) restrictions on transfer under
applicable securities laws, or (y) this Agreement), and (ii) does not beneficially own any securities of Parent (including options,
warrants or convertible securities) other than the Subject Securities.
(b) Except
with respect to obligations under Parent’s Bylaws, such Securityholder has the sole right to Transfer, to vote (or cause to vote)
and to direct (or cause to direct) the voting of the Subject Securities, and none of the Subject Securities are subject to any voting
trust or other agreement, arrangement or restriction with respect to the Transfer or the voting of the Subject Securities (other than
restrictions on transfer under applicable securities laws), except as set forth in this Agreement.
(c) Such
Securityholder, if not a natural person: (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction
of organization, and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this
Agreement, to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery by such
Securityholder of this Agreement, the consummation by such Securityholder of the transactions contemplated hereby and the compliance by
such Securityholder with the provisions hereof have been duly authorized by all necessary corporate, company, partnership or other action
on the part of such Securityholder, and no other corporate, company, partnership or other proceedings on the part of such Securityholder
are necessary to authorize this Agreement, to consummate the transactions contemplated hereby or to comply with the provisions hereof.
(d) This
Agreement has been duly executed and delivered by such Securityholder, constitutes a valid and binding obligation of such Securityholder
and, assuming due authorization, execution and delivery by the other parties thereto, is enforceable against such Securityholder in accordance
with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws affecting or relating to creditors’ rights generally, and (ii) the availability of injunctive
relief and other equitable remedies.
(e) The
execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and compliance with the provisions
hereof do not and will not conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse
of time, or both) under, any provision of the organizational documents of such Securityholder, if applicable, (ii) any material violation
or breach of, or default (with or without notice or lapse of time, or both) under any (A) statute, Law, ordinance, rule or regulation
or (B) judgment, order or decree, in each case, applicable to such Securityholder or such Securityholder’s properties or assets,
or (iii) any material violation or breach of, or default (with or without notice or lapse of time, or both) under any material contract,
trust, commitment, agreement, understanding, arrangement or restriction of any kind to which such Securityholder is a party or by which
such Securityholder or such Securityholder’s assets are bound.
11. Termination.
This Agreement shall terminate automatically upon, and concurrently with, the Closing or the termination of the Merger Agreement, each
in accordance with the terms of the Merger Agreement. In the event of the termination of this Agreement, this Agreement shall forthwith
become null and void, there shall be no liability on the part of any of the parties, and all rights and obligations of each party hereto
shall cease; provided, however, that no such termination of this Agreement shall relieve any party hereto from any liability
for any breach of any provision of this Agreement prior to such termination.
12. Further
Covenants and Assurances. During the term of this Agreement, each Securityholder hereby, to the extent permitted by Laws, waives and
agrees not to exercise any dissenters’ or appraisal rights, or other similar rights, with respect to any Subject Securities which
may arise in connection with the Transactions.
13. Successors,
Assigns and Transferees Bound. Without limiting Section 1 hereof in any way, each Securityholder agrees that this Agreement and
the obligations hereunder shall attach to the Subject Securities from the date hereof through the termination of this Agreement and shall,
to the extent permitted by applicable Laws, be binding upon any Person to which legal or beneficial ownership of the Subject Securities
shall pass, whether by operation of law or otherwise, including Securityholder’s heirs, guardians, administrators or successors,
and each Securityholder further agrees to take all reasonable actions necessary to effectuate the foregoing.
14. Deposit.
Each Securityholder shall cause a counterpart of this Agreement to be deposited, in electronic or physical form, with Parent at its principal
place of business or registered office where it shall be subject to the same right of examination by any stockholder, in person or by
agent or attorney, as are the books and records of Parent.
15. Remedies.
Each Securityholder acknowledges that money damages would be both incalculable and an insufficient remedy for any breach of this Agreement
by it, and that any such breach would cause the Company and Parent irreparable harm. Accordingly, each Securityholder agrees that in the
event of any breach or threatened breach of this Agreement, the Company and Parent, in addition to any other remedies at law or in equity
each may have, shall be entitled to seek immediate equitable relief, including injunctive relief and specific performance, without the
necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting any bond or other security, to prevent
breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state
having jurisdiction.
16. Remedies
Cumulative. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof shall not preclude the simultaneous
or later exercise of any other such right, power or remedy.
17. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when personally delivered,
or if sent by United States certified mail, return receipt requested, postage prepaid, shall be deemed duly given on delivery by United
States Postal Service, or if sent by e-mail or receipted overnight courier services shall be deemed duly given on the Business Day received
if received prior to 5:00 p.m. local time or on the following Business Day if received after 5:00 p.m. local time or on a non-Business
Day, addressed to the respective parties as follows:
(i) if
to the Company, to:
Set Jet, Inc.
15011 North 75th Street
Scottsdale, Arizona 85260
Attn: Tom Smith, CEO
E-mail: tom@setjet.com
with a required copy (which shall not constitute notice)
to:
Snell & Wilmer LLP
One East Washington Street
Suite 2700
Phoenix, Arizona 85004
Attn: Dan Mahoney
E-mail: dmahoney@swlaw.com
and
Snell & Wilmer LLP
350 S Grand Avenue
Suite 3100
Los Angeles, CA 90071
Attn: Joshua Schneiderman
E-mail: jschneiderman@swlaw.com
(ii) if
to Parent or Merger Sub, to:
Revelstone Capital Acquisition Corp.
14350 Myford Road
Irvine, CA 92606
Attn: Morgan Callagy
E-mail: morgan@revelstonecap.com
with a required copy (which shall not constitute notice)
to:
Loeb & Loeb LLP
345 Park Ave
New York, NY 10154
Attention: Mitchell S. Nussbaum
Fax: 212.504.3013
E-mail: mnussbaum@loeb.com
(iii) if
to a Securityholder, to the address of such Securityholder set forth on Schedule A hereto.
18. Severability.
Any provision hereof that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by
Law, each party hereby waives any provision of Law that renders any such provision prohibited or unenforceable in any respect. The parties
further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve,
to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
19. Entire
Agreement/Amendment. This Agreement (together with the Merger Agreement and the other agreements and documents contemplated hereby
and thereby) represents the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the subject matter hereof. This Agreement may not be amended,
modified, altered or supplemented except by means of a written instrument executed and delivered by the parties hereto.
20. Governing
Law. This Agreement, and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out
of or relate to this Agreement or the negotiation, execution or performance of this Agreement, shall be governed by and construed in accordance
with the internal Laws of the State of Delaware without reference to its choice of law rules. Each party agrees that any legal action
or other legal proceeding relating to this Agreement or the enforcement of any provision of this Agreement shall be brought or otherwise
commenced exclusively in the Court of Chancery of the State of Delaware or any federal court of competent jurisdiction in the State of
Delaware. Each of the parties consents to service of process in any such proceeding in any manner permitted by the Laws of the State of
Delaware, and agrees that service of process by registered or certified mail, return receipt requested, at its address specified pursuant
to Section 17 of this Agreement is reasonably calculated to give actual notice. Each party waives and agrees not to assert (by way
of motion, as a defense or otherwise), in any such legal proceeding commenced in such courts, any claim that such party is not subject
personally to the jurisdiction of such courts, that such legal proceeding has been brought in an inconvenient forum, that the venue of
such proceeding is improper or that this Agreement or the subject matter hereof or thereof may not be enforced in or by such courts. EACH
PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE
AND ENFORCEMENT HEREOF.
21. Further
Actions. Each of the parties hereto agrees to execute and deliver hereafter any further document, agreement or instrument of assignment,
transfer or conveyance as may be necessary or desirable to effectuate the purposes hereof and as may be reasonably requested in writing
by another party hereto.
22. Expenses.
Each party shall be responsible for its own fees and expenses (including the fees and expenses of investment bankers, accountants and
counsel) in connection with the entering into of this Agreement, the performance of its obligations hereunder and the consummation of
the transactions contemplated hereby; provided, that in the event of any Action arising out of or relating to this Agreement, the
non-prevailing party in any such Action will pay its own expenses and the reasonable documented out-of-pocket expenses, including reasonable
attorneys’ fees and costs, reasonably incurred by the prevailing party.
23. No
Partnership, Agency or Joint Venture. This Agreement is intended to create a contractual relationship among the Securityholders, the
Company, Parent and Merger Sub, and is not intended to create, and does not create, any agency, partnership, joint venture or any like
relationship among the parties hereto or among any other Securityholders entering into support agreements with the Company or Parent.
Each Securityholder has acted independently regarding its decision to enter into this Agreement. Nothing contained in this Agreement shall
be deemed to vest in the Company or Parent any direct or indirect ownership or incidence of ownership of or with respect to any Subject
Securities. All rights, ownership and economic benefits of and relating to a Securityholder’s Subject Securities shall remain vested
in and belong to such Securityholder, and neither the Company nor Parent shall have any authority to direct a Securityholder in the voting
or disposition of any Subject Securities, except as otherwise provided herein.
24. Capacity
as Securityholder. Each Securityholder signs this Agreement solely in such Securityholder’s capacity as holder of the Subject
Securities, and not in any other capacity, including, if applicable, as a director (including “director by deputization”),
officer or employee of Parent or any of its subsidiaries. Nothing herein shall be construed to limit or affect any actions or inactions
by a Securityholder or any representative of a Securityholder, as applicable, serving as a director of Parent or any subsidiary of Parent,
acting in such Person’s capacity as a director of Parent or any subsidiary of Parent.
25. Counterparts.
This Agreement may be executed by delivery of electronic signatures and in two (2) or more counterparts, each of which shall be deemed
an original, and it shall not be necessary in making proof of this Agreement or the terms hereof to produce or account for more than one
of such counterparts.
[Remainder
of page intentionally left blank; signature pages follow]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
| | Company: |
| | | |
| | | SET JET, INC. |
| | | |
| | | By: |
/s/
Thomas P. Smith |
| | | Name: |
Thomas P. Smith |
| | | Title: |
Chief Executive Officer |
[Signature
Page to Parent Support Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
| | Parent: |
| | | |
| | | REVELSTONE CAPITAL ACQUISITION CORP. |
| | | |
| | | By: |
/s/
Morgan Callagy |
| | | Name: |
Morgan Callagy |
| | | Title: |
Co-Chief Executive Officer |
| | | |
|
| | | By: |
/s/
Daniel Neukomm |
| | | Name: |
Daniel Neukomm |
| | | Title: |
Co-Chief Executive Officer |
| | | |
| | | Merger Sub: |
| | | |
| | | REVELSTONE
CAPITAL MERGER SUB, INC. |
| | | |
| | | By: |
/s/
Morgan Callagy |
| | | Name: |
Morgan Callagy |
| | | Title: |
President |
[Signature
Page to Parent Support Agreement]
| | Securityholders: |
| | | |
| | | LA JOLLA GROUP, INC. |
| | | |
| | | By: |
/s/
Michael Pratt |
| | | Name: |
Michael Pratt |
| | | Title: |
Chief Executive Officer |
| | | |
|
| | | /s/
Morgan Callagy |
| | | Morgan Callagy |
| | | |
|
| | | /s/
Daniel Neukomm |
| | | Daniel Neukomm |
[Signature
Page to Parent Support Agreement]
SCHEDULE A
| Name and Address of Securityholder | |
Number and Class
of Subject Securities |
| La Jolla Group, Inc. | |
| 517,500 |
| Morgan Callagy | |
| 607,491 |
| Daniel Neukomm | |
| 607,491 |
Exhibit 10.2
COMPANY SUPPORT AGREEMENT
THIS COMPANY SUPPORT AGREEMENT
(this “Agreement”) is made and entered into as of July 17, 2023, by and among Set Jet, Inc., a Nevada corporation
(the “Company”), Revelstone Capital Acquisition Corp., a Delaware corporation (“Parent”), Revelstone
Capital Merger Sub, Inc., a Delaware corporation (“Merger Sub”) and the stockholder of the Company listed on
Schedule A hereto (“Securityholder”). Capitalized terms used but not defined herein are used as they are defined
in the Merger Agreement (as defined below).
RECITALS:
A. Securityholder
beneficially owns and has the sole power to dispose of (or sole power to cause the disposition of) the shares of capital stock set forth
opposite Securityholder’s name on Schedule A hereto (such shares of capital stock, together with any New Securities as defined
in and pursuant to Section 3, are collectively referred to herein as the “Subject Securities”).
B. Upon
the satisfaction or waiver of the terms and conditions of the Merger Agreement by and among the Company, Parent, Merger Sub, and Thomas
P. Smith, as Securityholder Representative, dated as of the date hereof (as amended, restated or supplemented from time to time, the
“Merger Agreement”), Merger Sub will merge with and into the Company, after which the Company to be the surviving
corporation of such merger (the “Merger”).
C. Securityholder
believes that the terms of the Merger and the Merger Agreement are fair and that it is in Securityholder’s best interest as holder
of the Subject Securities that the Merger and the other transactions contemplated by the Merger Agreement (collectively, the “Transactions”)
be consummated.
D. In
order to induce the Company and Parent to enter into the Merger Agreement and in consideration of the execution thereof by the Company
and Parent and to enhance the likelihood that the Transactions will be consummated, Securityholder, solely in Securityholder’s
capacity as holder of the Subject Securities, has entered into this Agreement and agrees to be bound hereby.
NOW THEREFORE, in consideration
of the promises and the covenants and agreements set forth below, and for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
1. No
Transfer of Subject Securities. During the term of this Agreement, Securityholder shall not cause or permit any Transfer (as defined
below) of any of the Subject Securities or enter into any agreement, option, derivative, hedging or arrangement with respect to a Transfer
of any of the Subject Securities. Following the date hereof and except as required by this Agreement, Securityholder shall not deposit
(or permit the deposit of) any Subject Securities in a voting trust or grant any proxy or enter into any voting agreement or similar
agreement with respect to any of the Subject Securities or in any way grant any other Person any right whatsoever with respect to the
voting or disposition of the Subject Securities. For purposes hereof, a Person shall be deemed to have effected a “Transfer”
of Subject Securities if such Person directly or indirectly: (a) sells, pledges, encumbers, grants an option with respect to, transfers,
assigns, or otherwise disposes of any Subject Securities, or any interest in such Subject Securities; or (b) enters into an agreement
or commitment providing for the sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of
such Subject Securities or any interest therein.
2. No
Redemption. Securityholder hereby agrees that, during the term of this Agreement, it shall not redeem, submit a request to the Company
or any transfer agent of the Company to redeem, or otherwise exercise any right to redeem, any Subject Securities.
3. New
Securities. During the term of this Agreement, in the event that, (a) any shares of capital stock or other equity securities
of the Company are issued to Securityholder after the date of this Agreement pursuant to any stock dividend, stock split, recapitalization,
reclassification, combination or exchange of the Company securities owned by Securityholder, (b) Securityholder purchases or otherwise
acquires beneficial ownership of any shares of capital stock or other equity securities of the Company after the date of this Agreement,
or (c) Securityholder acquires the right to vote or share in the voting of any shares of capital stock or other equity securities
of the Company after the date of this Agreement (such shares of capital stock or other equity securities of the Company, collectively
the “New Securities”), then such New Securities acquired or purchased by Securityholder shall be subject to the terms
of this Agreement to the same extent as if they constituted the Subject Securities as of the date hereof.
4. No
Challenge. Securityholder agrees not to commence, join in, facilitate, assist or encourage, and agrees to take all actions necessary
to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Parent, Merger Sub, the Company
or any of their respective successors or directors (a) challenging the validity of, or seeking to enjoin the operation of, any provision
of this Agreement or (b) alleging a breach of any fiduciary duty of any Person in connection with the evaluation, negotiation or
entry into the Merger Agreement.
5. Waiver.
Securityholder hereby irrevocably and unconditionally waives, and agrees not to exercise, any rights of appraisal, dissenter’s
rights and any similar rights under applicable law relating to the Merger and the consummation of the Transactions, including any notice
requirements.
6. Agreement
to Vote Shares; Proxy.
(a) During
the term of this Agreement, at any meeting of stockholders of the Company (whether annual or special), however called, or at any adjournment
or postponement thereof, in any action by written consent of the stockholders of the Company or in any other circumstances upon which
Securityholder’s vote, consent or other approval is sought, Securityholder shall (and shall execute such additional documents or
certificates evidencing such agreement as the Company may reasonably request in connection therewith) to (a) (i) when such
meeting is held, appear at such meeting or otherwise cause the Subject Securities to be counted as present thereat for the purpose of
establishing a quorum, (ii) vote (or cause to be voted or consented to), as applicable, or validly execute and return an action
by written consent or an action to cause such consent to be granted with respect to, all of the Subject Securities that are then entitled
to be voted at any meeting of the Company’s stockholders or written consent of the Company’s stockholders related to the
Transactions or the Merger Agreement (A) in favor of the approval of the Transactions, the approval and adoption of the Merger Agreement
and the approval of the terms of the Merger Agreement, the other agreements reflected therein and this Agreement, (B) in favor of
any other matter reasonably necessary to the consummation of the transactions contemplated by the Merger Agreement and considered and
voted upon by the stockholders of the Company, and (C) against any proposal, amendment, matter or agreement that would in any manner
(i) impede, frustrate, interfere with, prevent, adversely affect or nullify the Transactions or any provision of the Merger Agreement
or this Agreement, (ii) result in a breach in any respect of any covenant, representation or warranty or other obligation or agreement
of the Company under the Merger Agreement, (iii) result in any of the conditions set forth in Article IX of the Merger Agreement
not being fulfilled, or (iv) result in a breach in any respect of any covenant, representation or warranty or other obligation or
agreement of Securityholder contained in this Agreement or any Additional Agreement to which Securityholder is a party. Securityholder
agrees that the Subject Securities that are entitled to be voted shall be voted (or caused to be voted) as set forth in the preceding
sentence whether or not Securityholder’s vote, consent or other approval is sought on only one or on any combination of the matters
set forth in clauses (A)–(C) above and at any time or at multiple times during the term of this Agreement. The obligations
of Securityholder specified in this Section 6(a) shall apply whether or not the Merger or action described above is
recommended by the Company’s Board of Directors or the Company’s Board of Directors has effected an Alternative Transaction
(as defined in the Merger Agreement).
(b) The
Securityholder hereby irrevocably appoints as its proxy and attorney-in-fact, Tom Smith, and any Person designated in writing by Tom
Smith from time to time, each of them individually, with full power of substitution and resubstitution, until the termination of this
Agreement, to vote the Subject Securities (or grant a consent or approval, as applicable) beneficially owned by the Securityholder in
accordance with Section 6(a) in connection with any vote, consent or other approval of stockholders of the Company in
respect of any of the matters described in Section 6(a); provided, however, that the Securityholder’s grant of the
proxy contemplated by this Section 6(b) shall be effective if, and only if, the Securityholder fails to vote such Subject
Securities (or grant a consent or approval, as applicable) in accordance with Section 6(b). This proxy, if it becomes effective,
is coupled with an interest, is given as an additional inducement of the Company and Parent to enter into the Merger Agreement and shall
be irrevocable prior to the Effective Time, at which time any such proxy shall terminate and be released. Neither Tom Smith nor any other
Person may exercise this proxy on any matter, or in circumstance, except as provided above. Tom Smith may terminate this proxy with respect
to the Securityholder at any time at his sole election by written notice provided to the Securityholder and Parent.
7. Opportunity
to Review. Securityholder acknowledges receipt and review of the Merger Agreement and represents that he, she, or it has had (a) the
opportunity to review, and has read, reviewed and understands, the terms and conditions of the Merger Agreement and this Agreement, and
(b) the opportunity to review and discuss the Merger Agreement, the Transactions and this Agreement with his, her or its own advisors
and legal counsel.
8. Public
Disclosure. From the date of this Agreement until the Closing or termination of the Merger Agreement, Securityholder shall not make
any public announcements regarding this Agreement, the Merger Agreement or the transactions contemplated hereby or thereby. Securityholder
understands that it may be the recipient of confidential information of the Company during the term of this Agreement and that such information
may contain or constitute material non-public information concerning the Company, Parent or their Affiliates. Securityholder acknowledges
that trading in the securities of any party to this Agreement while in possession of material nonpublic information or communicating
that information to any other Person who trades in such securities could subject the applicable party to liability under the U.S. federal
and state securities laws, and the rules and regulations promulgated thereunder, including Section 10(b) of the Securities
Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder. Securityholder agrees that it and its Affiliates will not
disclose confidential information of the Company in its possession, nor will it trade in the securities of the Company or Parent while
in possession of material nonpublic information or at all until Securityholder and its Affiliates can do so in compliance with all applicable
laws and without breach of this Agreement.
9. Consent
to Disclosure. Securityholder hereby consents to the publication and disclosure in the Form S-4 and the Proxy Statement (and,
as and to the extent otherwise required by applicable securities Laws or the SEC or any other securities authorities, any other documents
or communications provided by Parent or the Company to any Authority or to securityholders of Parent or the Company) of Securityholder’s
identity and beneficial ownership of the Subject Securities and the nature of Securityholder’s commitments, arrangements and understandings
under and relating to this Agreement and, if deemed appropriate by Parent or the Company, a copy of this Agreement. Securityholder will
promptly provide any information reasonably requested by Parent or the Company for any regulatory application or filing made or approval
sought in connection with the Transactions (including filings with the SEC). Securityholder shall not issue any press release or otherwise
make any public statements with respect to the Transactions or the transactions contemplated herein without the prior written approval
of the Company and Parent.
10. Representations
and Warranties of Securityholder. Securityholder hereby represents and warrants as follows:
(a) Securityholder
(i) is the record and beneficial owner of the Subject Securities, free and clear of any liens, adverse claims, charges or other
encumbrances of any nature whatsoever (other than pursuant to (x) restrictions on transfer under applicable securities laws, or
(y) this Agreement), and (ii) does not beneficially own any securities of the Company (including options, warrants or convertible
securities) other than the Subject Securities.
(b) Except
with respect to obligations under the Company’s Bylaws, Securityholder has the sole right to Transfer, to vote (or cause to vote)
and to direct (or cause to direct) the voting of the Subject Securities, and none of the Subject Securities are subject to any voting
trust or other agreement, arrangement or restriction with respect to the Transfer or the voting of the Subject Securities (other than
restrictions on transfer under applicable securities laws), except as set forth in this Agreement.
(c) Securityholder,
if not a natural person: (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization,
and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this Agreement, to
consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery by Securityholder of
this Agreement, the consummation by Securityholder of the transactions contemplated hereby and the compliance by Securityholder with
the provisions hereof have been duly authorized by all necessary corporate, company, partnership or other action on the part of Securityholder,
and no other corporate, company, partnership or other proceedings on the part of Securityholder are necessary to authorize this Agreement,
to consummate the transactions contemplated hereby or to comply with the provisions hereof.
(d) This
Agreement has been duly executed and delivered by Securityholder, constitutes a valid and binding obligation of Securityholder and, assuming
due authorization, execution and delivery by the other parties thereto, is enforceable against Securityholder in accordance with its
terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
or other similar laws affecting or relating to creditors’ rights generally, and (ii) the availability of injunctive relief
and other equitable remedies.
(e) The
execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and compliance with the provisions
hereof do not and will not conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse
of time, or both) under, any provision of the organizational documents of Securityholder, if applicable, (ii) any material violation
or breach of, or default (with or without notice or lapse of time, or both) under any (A) statute, Law, ordinance, rule or
regulation or (B) judgment, order or decree, in each case, applicable to Securityholder or its properties or assets, or (iii) any
material violation or breach of, or default (with or without notice or lapse of time, or both) under any material contract, trust, commitment,
agreement, understanding, arrangement or restriction of any kind to which Securityholder is a party or by which Securityholder or Securityholder’s
assets are bound.
11. Termination.
This Agreement shall terminate automatically upon, and concurrently with, the Closing or the termination of the Merger Agreement, each
in accordance with the terms of the Merger Agreement. In the event of the termination of this Agreement, this Agreement shall forthwith
become null and void, there shall be no liability on the part of any of the parties, and all rights and obligations of each party hereto
shall cease; provided, however, that no such termination of this Agreement shall relieve any party hereto from any liability
for any breach of any provision of this Agreement prior to such termination.
12. Further
Covenants and Assurances. During the term of this Agreement, Securityholder hereby, to the extent permitted by Laws, waives and agrees
not to exercise any dissenters’ or appraisal rights, or other similar rights, with respect to any Subject Securities which may
arise in connection with the Transactions.
13. Successors,
Assigns and Transferees Bound. Without limiting Section 1 hereof in any way, Securityholder agrees that this Agreement
and the obligations hereunder shall attach to the Subject Securities from the date hereof through the termination of this Agreement and
shall, to the extent permitted by applicable Laws, be binding upon any Person to which legal or beneficial ownership of the Subject Securities
shall pass, whether by operation of law or otherwise, including Securityholder’s heirs, guardians, administrators or successors,
and Securityholder further agrees to take all reasonable actions necessary to effectuate the foregoing.
14. Deposit.
Securityholder shall cause a counterpart of this Agreement to be deposited, in electronic or physical form, with the Company at its principal
place of business or registered office where it shall be subject to the same right of examination by any stockholder, in person or by
agent or attorney, as are the books and records of the Company.
15. Remedies.
Securityholder acknowledges that money damages would be both incalculable and an insufficient remedy for any breach of this Agreement
by it, and that any such breach would cause the Company and Parent irreparable harm. Accordingly, Securityholder agrees that in the event
of any breach or threatened breach of this Agreement, the Company and Parent, in addition to any other remedies at law or in equity each
may have, shall be entitled to seek immediate equitable relief, including injunctive relief and specific performance, without the necessity
of proving the inadequacy of money damages as a remedy and without the necessity of posting any bond or other security, to prevent breaches
of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction.
16. Remedies
Cumulative. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof shall not preclude the simultaneous
or later exercise of any other such right, power or remedy.
17. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when personally delivered,
or if sent by United States certified mail, return receipt requested, postage prepaid, shall be deemed duly given on delivery by United
States Postal Service, or if sent by e-mail or receipted overnight courier services shall be deemed duly given on the Business Day received
if received prior to 5:00 p.m. local time or on the following Business Day if received after 5:00 p.m. local time or on a non-Business
Day, addressed to the respective parties as follows:
(i) if
to the Company, to:
Set Jet, Inc.
15011 North 75th Street
Scottsdale, Arizona 85260
Attn: Tom Smith, CEO
E-mail: tom@setjet.com
with a required copy (which shall not constitute notice)
to:
Snell & Wilmer LLP
One East Washington Street
Suite 2700
Phoenix, Arizona 85004
Attn: Dan Mahoney
E-mail: dmahoney@swlaw.com
and
Snell & Wilmer LLP
350 S Grand Avenue
Suite 3100
Los Angeles, CA 90071
Attn: Joshua Schneiderman
E-mail: jschneiderman@swlaw.com
(ii) if
to Parent or Merger Sub, to:
Revelstone Capital Acquisition Corp.
14350 Myford Road
Irvine, CA 92606
Attn: Morgan Callagy
E-mail: morgan@revelstonecap.com
with a required copy (which shall not constitute notice)
to:
Loeb & Loeb LLP
345 Park Ave
New York, NY 10154
Attention: Mitchell S. Nussbaum
Fax: 212-504-3013
Email: mnussbaum@loeb.com
(iii) if
to Securityholder, to the address set forth on Schedule A hereto.
18. Severability.
Any provision hereof that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by
Law, each party hereby waives any provision of Law that renders any such provision prohibited or unenforceable in any respect. The parties
further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve,
to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
19. Entire
Agreement/Amendment. This Agreement (together with the Merger Agreement and the other agreements and documents contemplated hereby
and thereby) represents the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the subject matter hereof. This Agreement may not be amended,
modified, altered or supplemented except by means of a written instrument executed and delivered by the parties hereto.
20. Governing
Law. This Agreement, and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out
of or relate to this Agreement or the negotiation, execution or performance of this Agreement, shall be governed by and construed in
accordance with the internal Laws of the State of Delaware without reference to its choice of law rules. Each party agrees that any legal
action or other legal proceeding relating to this Agreement or the enforcement of any provision of this Agreement shall be brought or
otherwise commenced exclusively in the Court of Chancery of the State of Delaware or any federal court of competent jurisdiction in the
State of Delaware. Each of the parties consents to service of process in any such proceeding in any manner permitted by the Laws of the
State of Delaware, and agrees that service of process by registered or certified mail, return receipt requested, at its address specified
pursuant to Section 17 of this Agreement is reasonably calculated to give actual notice. Each party waives and agrees not
to assert (by way of motion, as a defense or otherwise), in any such legal proceeding commenced in such courts, any claim that such party
is not subject personally to the jurisdiction of such courts, that such legal proceeding has been brought in an inconvenient forum, that
the venue of such proceeding is improper or that this Agreement or the subject matter hereof or thereof may not be enforced in or by
such courts. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT HEREOF.
21. Further
Actions. Each of the parties hereto agrees to execute and deliver hereafter any further document, agreement or instrument of assignment,
transfer or conveyance as may be necessary or desirable to effectuate the purposes hereof and as may be reasonably requested in writing
by another party hereto.
22. Expenses.
Each party shall be responsible for its own fees and expenses (including the fees and expenses of investment bankers, accountants and
counsel) in connection with the entering into of this Agreement, the performance of its obligations hereunder and the consummation of
the transactions contemplated hereby; provided, that in the event of any Action arising out of or relating to this Agreement,
the non-prevailing party in any such Action will pay its own expenses and the reasonable documented out-of-pocket expenses, including
reasonable attorneys’ fees and costs, reasonably incurred by the prevailing party.
23. No
Partnership, Agency or Joint Venture. This Agreement is intended to create a contractual relationship among Securityholder, the Company,
Parent and Merger Sub, and is not intended to create, and does not create, any agency, partnership, joint venture or any like relationship
among the parties hereto or among any other Securityholders entering into support agreements with the Company or Parent. Securityholder
has acted independently regarding its decision to enter into this Agreement. Nothing contained in this Agreement shall be deemed to vest
in the Company or Parent any direct or indirect ownership or incidence of ownership of or with respect to any Subject Securities. All
rights, ownership and economic benefits of and relating to the Subject Securities shall remain vested in and belong to Securityholder,
and neither the Company nor Parent shall have any authority to direct Securityholder in the voting or disposition of any Subject Securities,
except as otherwise provided herein.
24. Capacity
as Securityholder. Securityholder signs this Agreement solely in Securityholder’s capacity as holder of the Subject Securities,
and not in any other capacity, including, if applicable, as a director (including “director by deputization”), officer or
employee of the Company or any of its subsidiaries. Nothing herein shall be construed to limit or affect any actions or inactions by
Securityholder or any representative of Securityholder, as applicable, serving as a director of the Company or any subsidiary of the
Company, acting in such Person’s capacity as a director of the Company or any subsidiary of the Company.
25. Counterparts.
This Agreement may be executed by delivery of electronic signatures and in two (2) or more counterparts, each of which shall be
deemed an original, and it shall not be necessary in making proof of this Agreement or the terms hereof to produce or account for more
than one of such counterparts.
[Remainder
of page intentionally left blank; signature pages follow]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
| |
Securityholder: |
| |
|
| |
SANDSTORM LLC |
| |
|
| |
By: |
/s/ Thomas P. Smith |
| |
Name: |
Thomas P. Smith |
| |
Title: |
Manager |
[Signature Page to
Company Support Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
| |
Securityholder: |
| |
|
| |
THE III TRUST |
| |
|
| |
/s/ William R. Smith, III |
| |
William R. Smith, III, as Trustee of The III Trust |
[Signature Page to Company Support Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
| |
Securityholder: |
| |
|
| |
JADABR, LLC |
| |
|
| |
By: |
/s/ David Jacofsky |
| |
Name: |
David Jacofsky |
| |
Title: |
Manager |
[Signature Page to Company Support Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
| |
Securityholder: |
| |
|
| |
JETT FAMILY TRUST |
| |
|
| |
/s/ Kiki Constantine |
| |
Kiki Constantine, as Manager of the JETT Family Trust |
[Signature Page to Company Support Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
| |
Securityholder: |
| |
|
| |
DJJ TRUST |
| |
|
| |
/s/ David Jacofsky |
| |
David Jacofsky, as Trustee of the DJJ Trust |
[Signature Page to Company Support Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
| |
Securityholder: |
| |
|
| |
CLEAR WATER AIR LLC |
| |
|
| |
By: |
/s/ Steve Reynolds |
| |
Name: |
Steve Reynolds |
| |
Title: |
Manager |
[Signature Page to Company Support Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
| |
Securityholder: |
| |
|
| |
SAU FAMILY LLC |
| |
|
| |
By: |
/s/ Scott Untrecht |
| |
Name: |
Scott Untrecht |
| |
Title: |
Manager |
[Signature Page to
Company Support Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
| |
Company: |
| |
|
| |
SET JET,INC. |
| |
|
| |
By: |
/s/ Thomas P. Smith |
| |
Name: |
Thomas P. Smith |
| |
Title: |
CEO |
[Signature Page to
Company Support Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
| |
Parent: |
| |
|
| |
REVELSTONE CAPITAL ACQUISITION CORP. |
| |
|
| |
By: |
/s/ Morgan Callagy |
| |
Name: |
Morgan Callagy |
| |
Title: |
Co-Chief Executive Officer |
| |
|
| |
By: |
/s/ Daniel Neukomm |
| |
Name: |
Daniel Neukomm |
| |
Title: |
Co-Chief Executive Officer |
| |
|
| |
Merger Sub: |
| |
|
| |
REVELSTONE CAPITAL MERGER SUB,INC. |
| |
|
| |
By: |
/s/ Morgan Callagy |
| |
Name: |
Morgan Callagy |
| |
Title: |
President |
[Signature Page to Company Support Agreement]
SCHEDULE A
| Name and Address of Securityholder | |
Number and Class of
Subject Securities |
| Sandstorm LLC | |
2,000,000 Common Stock |
| | |
|
| The III Trust | |
2,000,000 Common Stock |
| | |
|
| JADABR, LLC | |
100,000 Common Stock |
| | |
|
| JETT Family Trust | |
4,000,000 Common Stock |
| | |
|
| DJJ Trust | |
1,850,000 Common Stock |
| | |
|
| Clear Water Air LLC | |
950,000 Common Stock |
| | |
|
| SAU Family LLC | |
300,000 Common Stock |
Exhibit 10.3
FORM OF
LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this
“Agreement”) is dated as of July [●], 2023, by and between the undersigned stockholder (the “Holder”)
and Revelstone Capital Acquisition Corp., a Delaware corporation (the “Parent”).
A. Contemporaneously
with entering into this Agreement, Parent, Revelstone Capital Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary
of Parent, Set Jet, Inc., a Nevada corporation (the “Company”), and Tom Smith, as the Securityholder Representative,
have entered into a Merger Agreement (as amended from time to time, the “Merger Agreement”).
B. Capitalized
terms used, but not otherwise defined herein, shall have the meanings ascribed to such terms in the Merger Agreement.
C. Pursuant
to the Merger Agreement, Parent will become the 100% stockholder of the Company.
D. The
Holder is the record and/or beneficial owner of certain shares of Company Common Stock, which will be exchanged for shares of Parent Common
Stock pursuant to the Merger Agreement.
E. As
a condition of, and as a material inducement for Parent and the Company to enter into and consummate the transactions contemplated by
the Merger Agreement, the Holder has agreed to execute and deliver this Agreement, which shall be effective as of the Closing Date of
the Merger.
NOW, THEREFORE, for and in
consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties, intending to be legally bound, agree as follows:
AGREEMENT
1. Lock-up.
(a) Subject
to Section 1(b) below, during the Lock-up Period, the Holder agrees that he, she or it will not offer, sell, contract
to sell, pledge or otherwise dispose of, directly or indirectly, any of the Lock-up Shares (as defined below), enter into a transaction
that would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Lock-up Shares or otherwise, publicly disclose the intention to make any offer, sale, pledge or disposition,
or to enter into any transaction, swap, hedge or other arrangement, or engage in any Short Sales (as defined below) with respect to the
Lock-up Shares.
(b) In
furtherance of the foregoing, during the Lock-up Period, Parent will (i) place a stop order on all the Lock-up Shares, including
those which may be covered by a registration statement, and (ii) notify Parent’s transfer agent in writing of the stop order
and the restrictions on the Lock-up Shares under this Agreement and direct Parent’s transfer agent not to process any attempts by
the Holder to resell or transfer any Lock-up Shares, except in compliance with this Agreement.
(c) For
purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200
of Regulation SHO under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and all types of direct
and indirect stock pledges, forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return
basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
(d) The
term “Lock-up Period” means the date that is six (6) months after the Closing Date (as defined in the Merger Agreement).
2. Beneficial
Ownership. The Holder hereby represents and warrants that it does not beneficially own, directly or through its nominees (as determined
in accordance with Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder), any shares
of Parent Common Stock, or any economic interest in or derivative of such shares, other than those shares of Parent Common Stock issued
pursuant to the Merger Agreement. For purposes of this Agreement, the Merger Consideration Shares beneficially owned by the Holder, together
with any other shares of Parent Common Stock, and including any securities convertible into, or exchangeable for, or representing the
rights to receive Parent Common Stock, if any, acquired during the Lock-up Period are collectively referred to as the “Lock-up
Shares,” provided, however, that such Lock-up Shares shall not include shares of Parent Common Stock acquired
by such Holder in open market transactions during the Lock-up Period.
Notwithstanding the foregoing,
and subject to the conditions below, the undersigned may transfer Lock-up Shares in connection with (a) transfers or distributions
to the Holder’s direct or indirect affiliates (within the meaning of Rule 405 under the Securities Act of 1933, as amended
(the “Securities Act”)) or to the estates of any of the foregoing; (b) transfers by bona fide gift to a member
of the Holder’s immediate family or to a trust, the beneficiary of which is the Holder or a member of the Holder’s immediate
family for estate planning purposes; (c) by virtue of the laws of descent and distribution upon death of the Holder; (d) pursuant
to a qualified domestic relations order; (e) transfers to Parent’s officers, directors or their affiliates; (f) transfers
pursuant to a bona fide third-party tender offer, merger, stock sale, recapitalization, consolidation or other transaction involving a
change of control of Parent; provided, however, that in the event that such tender offer, merger, recapitalization, consolidation
or other such transaction is not completed, the Lock-up Shares subject to this Agreement shall remain subject to this Agreement; (g) the
establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act; provided, however, that
such plan does not provide for the transfer of Lock-up Shares during the Lock-up Period; (h) transfers to satisfy tax withholding
obligations in connection with the exercise of options to purchase shares of Parent Common Stock or the vesting of stock-based awards;
and (i) transfers in payment on a “net exercise” or “cashless” basis of the exercise or purchase price with
respect to the exercise of options to purchase shares of Parent Common Stock; provided, however, that, in the case of any
transfer pursuant to the foregoing (a) through (e) clauses, it shall be a condition to any such transfer that (i) the transferee/donee
agrees in writing (a copy of which shall be provided by the Holder to the parties hereto and to Continental Stock and Transfer Company),
to be bound by the terms of this Agreement (including, without limitation, the restrictions set forth in the preceding sentence) to the
same extent as if the transferee/donee were a party hereto; and (ii) each party (donor, donee, transferor or transferee) shall not
be required by law (including without limitation the disclosure requirements of the Securities Act and the Exchange Act) to make, and
shall agree to not voluntarily make, any filing or public announcement of the transfer or disposition prior to the expiration of the Lock-up
Period. The Holder hereby covenants to Parent that the Holder will give notice to Parent of any transfer of Lock-up Shares pursuant to
this Section 2 of the Agreement, with such notice given in accordance with Section 5 of this Agreement.
3. Representations
and Warranties. Each of the parties hereto, by their respective execution and delivery of this Agreement, hereby represents and warrants
to the other that (a) such party has the full right, capacity and authority to enter into, deliver and perform its respective obligations
under this Agreement, (b) this Agreement has been duly executed and delivered by such party and is a binding and enforceable obligation
of such party and, enforceable against such party in accordance with the terms of this Agreement, and (c) the execution, delivery
and performance of such party’s obligations under this Agreement will not conflict with or breach the terms of any other agreement,
contract, commitment or understanding to which such party is a party or to which the assets or securities of such party are bound. The
Holder has independently evaluated the merits of his/her/its decision to enter into and deliver this Agreement, and such Holder confirms
that he/she/it has not relied on the advice of Company, Company’s legal counsel, or any other person.
4. No
Additional Fees/Payment. Other than the consideration specifically referenced herein, the parties hereto agree that no fee, payment
or additional consideration in any form has been or will be paid to the Holder in connection with this Agreement.
5. Notices.
Any notices required or permitted to be sent hereunder shall be sent in writing, addressed as specified below, and shall be deemed given:
(a) if by hand or recognized courier service, by 4:00PM on a Business Day, addressee’s day and time, on the date of delivery,
and otherwise on the first Business Day after such delivery; (b) if by email, on the date that transmission is confirmed electronically,
if by 4:00PM on a Business Day, addressee’s day and time, and otherwise on the first Business Day after the date of such confirmation;
or (c) five days after mailing by certified or registered mail, return receipt requested. Notices shall be addressed to the respective
parties as follows (excluding telephone numbers, which are for convenience only), or to such other address as a party shall specify to
the others in accordance with these notice provisions:
Set Jet, Inc.
15011 North 75th Street
Scottsdale, Arizona 85260
Attn: Tom Smith, CEO
E-mail: tom@setjet.com
with a required copy (which shall not constitute notice)
to:
Snell & Wilmer LLP
One East Washington Street
Suite 2700
Phoenix, Arizona 85004
Attn: Dan Mahoney
E-mail: dmahoney@swlaw.com
and
Snell & Wilmer LLP
350 S Grand Avenue
Suite 3100
Los Angeles, CA 90071
Attn: Joshua Schneiderman
E-mail: jschneiderman@swlaw.com
if to Parent:
Revelstone Capital Acquisition Corp.
14350 Myford Road
Irvine, CA 92606
Attn: Morgan Callagy
E-mail: morgan@revelstonecap.com
with a required copy (which shall not constitute notice)
to:
Loeb & Loeb LLP
345 Park Ave
New York, NY 10154
Attention: Mitchell S. Nussbaum
Fax: 212.504.3013
E-mail: mnussbaum@loeb.com
(b) If
to the Holder, to the address set forth on the Holder’s signature page hereto.
6. Termination.
This Agreement shall terminate automatically upon, and concurrently with, the Closing or the termination of the Merger Agreement, each
in accordance with the terms of the Merger Agreement. In the event of the termination of this Agreement, this Agreement shall forthwith
become null and void, there shall be no liability on the part of any of the parties, and all rights and obligations of each party hereto
shall cease; provided, however, that no such termination of this Agreement shall relieve any party hereto from any liability for any breach
of any provision of this Agreement prior to such termination.
7. Enumeration
and Headings. The enumeration and headings contained in this Agreement are for convenience of reference only and shall not control
or affect the meaning or construction of any of the provisions of this Agreement.
8. Counterparts.
This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which shall constitute one agreement.
This Agreement shall become effective upon delivery to each party of an executed counterpart or the earlier delivery to each party of
original, photocopied, or electronically transmitted signature pages that together (but need not individually) bear the signatures
of all other parties.
9. Successors
and Assigns. This Agreement and the terms, covenants, provisions and conditions hereof shall be binding upon, and shall inure to the
benefit of, the respective heirs, successors and assigns of the parties hereto. The Holder hereby acknowledges and agrees that this Agreement
is entered into for the benefit of and is enforceable by Company and its successors and assigns.
10. Severability.
If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision will be conformed to prevailing
law rather than voided, if possible, in order to achieve the intent of the parties and, in any event, the remaining provisions of this
Agreement shall remain in full force and effect and shall be binding upon the parties hereto.
11. Amendment.
This Agreement may be amended or modified by written agreement executed by each of the parties hereto.
12. Further
Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
13. No
Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their
mutual intent, and no rules of strict construction will be applied against any party.
14. Dispute
Resolution. Each of Section 11.14 (Waiver of Jury Trial) and 11.15 (Submission to Jurisdiction) of the Merger Agreement
is incorporated by reference herein to apply with full force to any disputes arising under this Agreement.
15. Governing
Law. Section 11.7 (Governing Law) of the Merger Agreement is incorporated by reference herein to apply with full force to any
disputes arising under this Agreement.
16. Controlling
Agreement. To the extent the terms of this Agreement (as amended, supplemented, restated or otherwise modified from time to time)
directly conflicts with any provision in the Merger Agreement, the terms of this Agreement shall control.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties
hereto have caused this Lock-up Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
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PARENT: |
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REVELSTONE CAPITAL ACQUISITION CORP. |
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/s/ Morgan Callagy |
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Morgan Callagy |
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Co-Chief Executive Officer |
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By: |
/s/ Daniel Neukomm |
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Name: |
Daniel Neukomm |
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Title: |
Co-Chief Executive Officer |
[Signature Page to Lock-Up Agreement]
IN WITNESS WHEREOF, the parties
hereto have caused this Lock-up Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
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HOLDER: |
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SANDSTORM LLC |
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By: |
/s/ Thomas P. Smith |
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Name: |
Thomas P. Smith |
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Manager |
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Attention: |
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[Signature Page to Lock-Up Agreement]
IN WITNESS WHEREOF, the parties
hereto have caused this Lock-up Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
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HOLDER: |
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THE III TRUST |
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/s/ William R. Smith, III |
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William R. Smith, III, as Trustee of The III Trust |
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Attention: |
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[Signature Page to Lock-Up Agreement]
IN WITNESS WHEREOF, the parties
hereto have caused this Lock-up Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
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HOLDER: |
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JADABR, LLC |
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By: |
/s/ David Jacofsky |
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Name: |
David Jacofsky |
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Manager |
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Attention: |
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[Signature Page to Lock-Up Agreement]
IN WITNESS WHEREOF, the parties
hereto have caused this Lock-up Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
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HOLDER: |
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JETT FAMILY TRUST |
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/s/ Kiki Constantine |
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Kiki Constantine, as Manager of the JETT Family Trust |
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Attention: |
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[Signature Page to Lock-Up Agreement]
IN WITNESS WHEREOF, the parties
hereto have caused this Lock-up Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
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HOLDER: |
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DJJ TRUST |
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/s/ David Jacofsky |
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David Jacofsky, as Trustee of the DJJ Trust |
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Attention: |
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[Signature Page to Lock-Up Agreement]
IN WITNESS WHEREOF, the parties
hereto have caused this Lock-up Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
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HOLDER: |
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CLEAR WATER AIR LLC |
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By: |
/s/ Steve Reynolds |
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Name: |
Steve Reynolds |
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Manager |
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Attention: |
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[Signature Page to Lock-Up Agreement]
IN WITNESS WHEREOF, the parties
hereto have caused this Lock-up Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
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HOLDER: |
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SAU FAMILY LLC |
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By: |
/s/ Scott Untrecht |
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Name: |
Scott Untrecht |
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Title: |
Manager |
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[Signature Page to Lock-Up Agreement]
Exhibit 10.4
VOTING AGREEMENT
This Voting Agreement (this “Agreement”) is made as of July 17, 2023, by and among Set Jet, Inc., a Nevada corporation (the “Company”), the Company shareholders listed on Schedule A attached hereto (together with the Company, the “Company Voting Parties” and each a “Company Voting Party”), Revelstone Capital, LLC, a Delaware limited liability company (the “Sponsor”), Revelstone Capital Acquisition Corp., a Delaware corporation (“Parent”), certain Parent stockholders listed on Schedule B attached hereto (the “Parent Parties” and together with Parent, the “Parent Voting Parties” and each a “Parent Voting Party,” and the Parent Voting Parties together with the Company Voting Parties, the “Voting Parties” and each a “Voting Party”). For purposes of this Agreement, capitalized terms used and not defined herein shall have the respective meanings ascribed to them in the Merger Agreement (as defined below).
RECITALS:
WHEREAS, the Company, Parent,
Revelstone Capital Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and Tom Smith, as Securityholder Representative,
entered into a Merger Agreement, dated as of the date hereof (the “Merger Agreement”);
WHEREAS, pursuant to the Merger
Agreement, Merger Sub will merge with and into the Company, after which the Company will be the surviving company (“Surviving
Corporation”) and a wholly-owned subsidiary of Parent and Parent shall change its name to “Set Jet, Inc.”;
WHEREAS, each of the Voting
Parties currently owns, or on closing of the transactions contemplated by the Merger Agreement, will own, shares of the Parent’s
capital stock, and wishes to provide for orderly elections of the Parent’s Board of Director’s (the “Parent Board”)
and Surviving Corporation’s Board of Directors (“Surviving Corporation’s Board”) as described herein; and
WHEREAS, the execution and
delivery of this Agreement is a condition to the Closing and the other transactions contemplated by the Merger Agreement.
NOW THEREFORE, in consideration
of the foregoing and of the promises and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Agreement
to Vote. Each Voting Party shall vote all securities of Parent that may vote in the election of the Parent’s Board and Surviving
Corporation’s Board that such Voting Party owns from time to time (hereinafter referred to as the “Voting Shares”)
in accordance with the provisions of this Agreement, whether at a regular or special meeting of stockholders or any class or series of
stockholders or by written consent.
2. Election
of Parent’s Board.
2.1 Voting.
At the Effective Time and until the termination of this Agreement, each Voting Party shall vote all Voting Shares in such manner as may
be necessary to elect (and maintain in office) as members of Parent’s Board up to six (6) directors, the majority of whom shall
be independent, as designated by the Sponsor and the Company as follows:
(a) Up
to one (1) independent director (“Sponsor Designee”) designated by the Sponsor (as defined in the Merger Agreement);
and
(b) Up
to five (5) person(s) (each a “Company Designee”) designated by the Company, a majority of whom shall be
independent directors.
2.2 Initial
Designees. The initial Sponsor Designee, if any, shall be determined by the Sponsor prior to the Closing through written notice to
each party hereto. The initial Company Designees, if any, shall be determined by the Company through written notice to each party hereto.
2.3 Obligations;
Removal of Directors; Vacancies. Each of the Voting Parties, Parent and the Company agree not to take any actions that would contravene
or materially and adversely affect the provisions of this Agreement and the intention of the parties with respect to the composition of
Parent’s Board as herein stated. The Sponsor and the Company, as applicable, shall have the exclusive right to (a) remove their
nominee(s) from the Parent’s Board, and each party hereto shall vote such party’s Voting Shares to cause the removal
of any such nominee at the request of the Sponsor or the Company, as applicable, and (b) designate or nominate a director(s) for
election or appointment, as applicable, to the Parent’s Board to fill a vacancy(s) created by reason of death, removal or resignation
of its nominee(s) to the Parent’s Board, and each party hereto shall vote such party’s Voting Shares in favor of nominating
or causing the Parent’s Board to appoint, as applicable, a replacement director(s) designated by the Sponsor or the Company,
as applicable, to fill any such vacancy(s) created pursuant to clause (i) or (ii) above to be filled by a replacement director(s) designated
by the Sponsor or the Company, as palpable, as promptly as practicable after such designation (and in any event prior to the next meeting
or action of the Parent’s Board or applicable committee).
3. Election
of the Board of the Surviving Corporation. At the Effective Time, the initial directors of the Surviving Corporation shall consist
of the same persons serving on the Company’s Board of Directors as of immediately prior to the Effective Time, other than those
directors that have resigned as contemplated by Section 9.2(k) of the Merger Agreement. Such directors shall hold office
until their successors shall have been duly elected or appointed and qualified or until their earlier death, resignation or removal in
accordance with the Surviving Corporation’s articles of incorporation and bylaws.
4. Committees.
To the fullest extent permitted by applicable Law, including the rules of any applicable securities exchange, each committee of the
Parent’s Board shall include the director, if any, elected to the Parent’s Board pursuant to Section 2.1(a).
5. Successors
in Interest of the Voting Parties.
5.1 The
provisions of this Agreement shall be binding upon the successors in interest of any Company Voting Party with respect to any of such
Company Voting Party’s Voting Shares or any voting rights therein, unless such shares are sold into the public markets. Each Company
Voting Party shall not, and Parent and the Company shall not, permit the transfer of any Company Voting Party’s Voting Shares (except
for sales of Voting Shares into the public markets), unless and until the person to whom such securities are to be transferred shall have
executed a written agreement pursuant to which such person becomes a party to this Agreement and agrees to be bound by all the provisions
hereof as if such person was a Company Voting Party hereunder.
5.2 The
provisions of this Agreement shall not be binding upon the successors in interest of any Parent Voting Party.
6. Covenants.
Parent, the Company and each Voting Party agrees to take all actions required to ensure that the rights given to each Voting Party hereunder
are effective and that each Voting Party enjoys the benefits thereof. Such actions include, without limitation, the use of best efforts
to cause the nomination of the designees, as provided herein, for election as directors of Parent and the Surviving Corporation. Neither
Parent, the Company nor any Voting Party will, by any voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be performed hereunder by Parent, the Company or any such Voting Party, as applicable, but will at all times in good faith
assist in the carrying out of all of the provisions of this Agreement and in the taking of all such actions as may be necessary or appropriate
in order to protect the rights of each Voting Party hereunder against impairment.
7. Grant
of Proxy. The parties agree that this Agreement does not constitute the granting of a proxy to any party or any other person; provided,
however, that should the provisions of this Agreement be construed to constitute the granting of proxies, such proxies shall be
deemed coupled with an interest and are irrevocable for the term of this Agreement.
8. Specific
Performance. It is agreed and understood that monetary damages would not adequately compensate an injured party for the breach of
this Agreement by any party hereto, that this Agreement shall be specifically enforceable, and that any breach of this Agreement shall
be the proper subject of a temporary or permanent injunction or restraining order, this being in addition to any other remedy to which
it is entitled at Law or in equity, and that each party waives the posting of any bond or security in connection with any proceeding related
thereto. Further, each party hereto waives any claim or defense that there is an adequate remedy at law for such breach or threatened
breach and agrees that a party’s rights would be materially and adversely affected if the obligations of the other parties under
this Agreement were not carried out in accordance with the terms and conditions hereof.
9. Remedies
Cumulative. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof shall not preclude the simultaneous
or later exercise of any other such right, power or remedy.
10. Manner
of Voting. The voting of shares pursuant to this Agreement may be effected in person, by proxy, by written consent or in any other
manner permitted by applicable law.
11. Termination.
This Agreement shall terminate upon the earlier of (a) the termination of the Merger Agreement in accordance with its terms, (b) the
date that is two (2) years from the Closing Date, or (c) immediately prior to a transaction pursuant to which a person or group
other than current shareholders of Parent, Company or the Voting Parties, or their respective affiliates, will control greater than fifty
percent (50%) of Parent or Surviving Corporation’s voting power with respect to the election of directors of Parent or the Surviving
Corporation. Nothing in this Section 11 shall relieve or otherwise limit the liability of any party for breach of this Agreement
prior to termination hereof.
12. Amendments
and Waivers. Except as otherwise provided herein, any provision of this Agreement may be amended or the observance thereof may be
waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of (a) Parent,
(b) the Company and (c) the holders of a majority of Voting Shares then held by the Voting Parties, voting separately as a class;
provided, however, that the right of the Company to nominate the Company Designee shall not be amended without the written consent
of a majority in interest of the stockholders of the Company; and provided further, that the right of the Shareholders’ Representative
to nominate the Stockholder Designees shall not be amended without the written consent of the Shareholders’ Representative.
13. Stock
Splits, Stock Dividends, etc. In the event of any stock split, stock dividend, recapitalization, reorganization or the like,
any securities issued with respect to Voting Shares held by Voting Parties shall become Voting Shares for purposes of this Agreement.
14. Notices.
Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, emailed or sent by overnight
mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid, and shall be deemed to be given and
received (a) when so delivered personally, (b) when sent, with no mail undeliverable or other rejection notice, if sent by email,
or (c) three (3) Business Days after the date of mailing to the address below or to such other address or addresses as such
person may hereafter designate by notice given hereunder:
(a) If
to the Company (or, following the Closing, the Surviving Corporation or Parent), to:
Set Jet, Inc.
15011 North 75th Street
Scottsdale, Arizona 85260
Attn: Tom Smith, CEO
E-mail: tom@setjet.com
with a required copy (which shall not constitute notice)
to:
Snell & Wilmer LLP
One East Washington Street
Suite 2700
Phoenix, Arizona 85004
Attn: Dan Mahoney
E-mail: dmahoney@swlaw.com
and
Snell & Wilmer LLP
350 S Grand Avenue
Suite 3100
Los Angeles, CA 90071
Attn: Joshua Schneiderman
E-mail: jschneiderman@swlaw.com
if to Parent (prior to the Closing):
Revelstone Capital Acquisition Corp.
14350 Myford Road
Irvine, CA 92606
Attn: Morgan Callagy
E-mail: morgan@revelstonecap.com
with a required copy (which shall not constitute notice)
to:
Loeb & Loeb LLP
345 Park Ave
New York, NY 10154
Attention: Mitchell S. Nussbaum
Fax: 212.504.3013
E-mail: mnussbaum@loeb.com
(b) If
to any Voting Party, to such address or addresses set forth below each Voting Party’s signature.
15. Severability.
In the event that any provision of the Agreement shall be invalid, illegal or unenforceable, the remainder of this Agreement will continue
in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement
with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void
or unenforceable provision.
16. Governing
Law. This Agreement and the legal relations between the parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of Delaware without reference to its conflicts of laws provisions.
17. Counterparts;
Electronic Execution or Delivery. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed
an original and all of which together shall constitute one instrument. This Agreement may be executed electronically; any executed counterpart
of this Agreement may be delivered by facsimile or electronic mail; and any such electronically executed or delivered copy of a counterpart
signature page shall have the same force and effect as an originally executed copy hereof.
18. Successors
and Assigns. Except as otherwise expressly provided in this Agreement, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors and assigns of the parties hereto; provided, however, that no Voting Party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement without the consent of the Company and Parent.
19. Entire
Agreement. This Agreement (together with the Merger Agreement and the other agreements and documents expressly contemplated hereby
and thereby) constitutes the full and entire understanding and agreement among the parties, and supersedes any prior agreement or understanding
among the parties, with regard to the subjects hereof and thereof, and no party shall be liable or bound to any other party in any manner
by any warranties, representations or covenants except as specifically set forth herein or therein.
[Remainder of page intentionally left blank;
signature pages follow]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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COMPANY: |
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SET JET, INC. |
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By: |
/s/
Thomas P. Smith |
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Name: |
Thomas P. Smith |
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Title: |
CEO |
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PARENT: |
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REVELSTONE CAPITAL ACQUISITION CORP. |
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By: |
/s/ Morgan Callagy |
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Name: |
Morgan Callagy |
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Title: |
Co-Chief Executive Officer |
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By: |
/s/ Daniel Neukomm |
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Name: |
Daniel Neukomm |
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Title: |
Co-Chief Executive Officer |
[Signature Page to
Voting Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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SANDSTORM LLC |
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By: |
/s/ Thomas P. Smith |
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Name: |
Thomas P. Smith |
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Title: |
Manager |
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Address for Notice: |
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Attention: |
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Email: |
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with a required copy to (which shall not constitute notice): |
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[Signature Page to Voting Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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THE III TRUST |
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/s/ William R. Smith, III |
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William R. Smith, III, as Trustee of The III Trust |
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Address for Notice: |
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Attention: |
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Email: |
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[Signature Page to Voting Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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JADABR, LLC |
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By: |
/s/ David Jacofsky |
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Name: |
David Jacofsky |
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Title: |
Manager |
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Address for Notice: |
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Attention: |
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Email: |
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[Signature Page to Voting Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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JETT FAMILY TRUST |
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/s/ Kiki Constantine |
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Kiki Constantine, as Trustee of the JETT Family Trust |
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Address for Notice: |
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Attention: |
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Email: |
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with a required copy to (which shall not constitute notice): |
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In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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DJJ TRUST |
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/s/ David Jacofsky |
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David Jacofsky, as Trustee of the DJJ Trust |
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In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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CLEAR WATER AIR LLC |
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By: |
/s/ Steve Reynolds |
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Name: |
Steve Reynolds |
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Title: |
Manager |
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Address for Notice: |
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In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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SAU FAMILY LLC |
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By: |
/s/ Scott Untrecht |
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Name: |
Scott Untrecht |
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Title: |
Manager |
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Address for Notice: |
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[Signature Page to
Voting Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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SPONSOR |
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REVELSTONE CAPITAL LLC |
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By: |
/s/ Morgan Callagy |
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Name: |
Morgan Callagy |
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Title: |
Managing Member |
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[Signature Page to Voting Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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PARENT PARTIES |
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LA JOLLA GROUP, INC. |
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By: |
/s/ Michael Pratt |
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Name: |
Michael Pratt |
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Title: |
Chief Executive Officer |
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Attention: |
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[Signature Page to Voting Agreement]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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PARENT PARTIES |
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/s/ Morgan Callagy |
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Morgan Callagy |
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Address for Notice: |
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Attention: |
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/s/ Daniel Neukomm |
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Daniel Neukomm |
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Address for Notice: |
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[Signature Page to
Voting Agreement]
Schedule
A
| 1. | Sandstorm LLC |
| 2. | The III Trust |
| 3. | JADABR, LLC |
| 4. | JETT FAMILY TRUST |
| 5. | DJJ Trust |
| 6. | Clear Water Air LLC |
| 7. | SAU Family LLC |
Schedule
B
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1. |
La Jolla Group, Inc. |
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2. |
Morgan Callagy |
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3. |
Daniel Neukomm |
Exhibit 10.5
SUBSCRIPTION AGREEMENT
This Subscription
Agreement (“Agreement”) is entered into by and between the undersigned (“Subscriber”) and Set Jet, Inc.
a Nevada corporation (the “Company”).
RECITALS
WHEREAS, the Company
is currently in discussions with Revelstone Capital Acquisition Corp., a Delaware corporation (“SPAC”), to enter into
a Merger Agreement (a “Business Combination Agreement”) pursuant to which, among other things, Revelstone Capital Merger
Sub, Inc., a Delaware corporation and wholly owned subsidiary of SPAC (“Merger Sub”) will be merged with and into
the Company, with the Company surviving as a wholly-owned subsidiary of SPAC (the “Business Combination”), on the terms
and subject to the conditions set forth therein (the Business Combination, together with the other transactions contemplated by the Business
Combination Agreement, the “Transactions”); and
WHEREAS, in contemplation
of the Transactions, the Company is offering and Subscriber desires to subscribe for and purchase from the Company a $4,000,000 convertible
promissory note in the form attached hereto as Exhibit A (the “Note”) (such offering, the “Offering”).
AGREEMENT
NOW, THEREFORE, IN
CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Company and Subscriber hereby agree as follows:
1. Subscription
for Common Stock. Subscriber hereby agrees to purchase, and the Company hereby agrees to sell
on the terms and conditions, described below, the Note.
2. Terms
of Purchase. Pursuant to the terms of the Note, Subscriber hereby agrees to pay to the Company
a total of Four Million Dollars ($4,000,000.00) in four monthly installments of One Million Dollars ($1,000,000.00) with the first such
monthly installment due on July 31, 2023, and the ensuing monthly payments due on August 28, 2023, September 25, 2023, and
October 23, 2023. In addition, upon closing of the Transactions, the Company shall cause SPAC to issue Subscriber a warrant to purchase
400,000 shares of the Company’s common stock on the same terms and conditions as the warrants to be issued to the Subscriber in
connection with any private placement to be consummated in connection with the Transactions.
3. Representations
of the Company. The Company hereby represents and warrants to the Subscriber, as of the date
hereof (except as set forth on the Schedule of Exceptions attached hereto with each numbered Schedule corresponding to the section number
herein), as follows:
A. Organization,
Good Standing and Power. The Company and each of its subsidiaries is a corporation duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its incorporation and has the requisite corporate power to own, lease
and operate its properties and assets and to conduct its business as it is now being conducted. Neither the Company nor any of its Subsidiaries
is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational
or charter documents. Except as set forth on Schedule 3(A), the Company is duly qualified to do business and is in good standing
in every jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary except
for any jurisdiction(s) (alone or in the aggregate) in which the failure to be so qualified will not have a Material Adverse Effect
(as defined in Section 3(G) hereof).
B. Corporate
Power; Authority and Enforcement. The Company has the requisite corporate power and authority to enter into and perform this Agreement
and the Note (collectively, the “Transaction Documents”), and to issue and sell the Note in accordance with the terms
hereof. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by it of the transactions
contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action, and no further consent or authorization
of the Company or its Board or stockholders is required. Each of the Transaction Documents constitutes, or shall constitute when executed
and delivered, a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership
or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other equitable principles
of general application.
C. Capitalization.
As of the date hereof, the authorized capital stock of the Company and the shares thereof currently issued and outstanding as of the date
hereof consists of 40,000,000 shares of Common Stock, and no shares of preferred stock, par value $0.0001 per share (the “Preferred
Stock”), of which 23,436,667 shares of Common Stock are issued and outstanding as of the date hereof, and no shares of Preferred
Stock are issued and outstanding as of the date hereof. All (i) issued and outstanding shares of Common Stock have been duly authorized
and validly issued, are fully paid and are not subject to pre-emptive rights and (ii) outstanding Warrants have been duly authorized
and validly issued, are fully paid and are not subject to preemptive rights. No further approval or authorization of any stockholder of
the Company or any Subsidiary, the Board of Directors of the Company or others is required for the issuance and sale of the Securities.
As of the date hereof and except as provided in the Company’s organizational documents, as contemplated by the Transaction Documents
or as set forth on Schedule 3(C) hereto:
i. no
shares of capital stock of the Company are entitled to preemptive, conversion or other rights and there are no outstanding options, warrants,
scrip, rights to subscribe to, call or commitments of any character whatsoever relating to, or securities or rights convertible into,
any shares of capital stock of the Company;
ii. there
are no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares
of capital stock of the Company or options, securities or rights convertible into shares of capital stock of the Company and there are
no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there
are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem
a security of the Company, or such Subsidiary;
iii. the
Company is not a party to any agreement granting registration or anti-dilution rights to any person with respect to any of its equity
or debt securities; and
iv. the
Company is not a party to, and it has no knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock
of the Company.
The offer and sale of all capital stock,
convertible securities, rights, warrants, or options of the Company issued prior to the date hereof complied in all material respects
with all applicable federal and state securities laws. The Company has furnished or made available to the Subscriber true and correct
copies of the Company’s Certificate of Incorporation, as amended and in effect on the date hereof (the “COI”),
and the Company’s Bylaws, as amended and in effect on the date hereof (the “Bylaws”). Except as restricted under
applicable federal, state, local or foreign laws and regulations, the Transaction Documents, or as set forth on Schedule 3(C),
no written or oral contract, instrument, agreement, commitment, obligation, plan or arrangement of the Company shall limit the payment
of dividends on the Company’s Common Stock. Schedule 3(C) sets forth the capitalization of the Company immediately following
the issuance of all the Subscribed Shares pursuant to this Agreement.
D. Issuance
of Securities. The Note to be issued has been duly authorized by all necessary corporate action by the Company.
E. No
Material Adverse Effect. As of the date hereof, the Company nor any Subsidiary has experienced or suffered any Material Adverse Effect.
For the purposes of this Agreement, “Material Adverse Effect” means any change, event, or occurrence, individually
or when aggregated with other changes, events, or occurrences, that has or would reasonably be expected to have a materially adverse effect
on the business, operations, properties, or financial condition of the Company and its Subsidiaries, taken as a whole, and/or any condition,
circumstance, or situation that would prohibit or otherwise materially interfere with the ability of the Company or its Subsidiaries to
perform any of its obligations under this Agreement or any other Transaction Document in any material respect.
F. No
Undisclosed Liabilities. Other than as disclosed on Schedule 3(F), to the knowledge of the Company, neither the Company nor
its subsidiaries has any liabilities, obligations, claims or losses (whether liquidated or unliquidated, secured or unsecured, absolute,
accrued, contingent or otherwise) other than those incurred in the ordinary course of the Company’s business as of the date hereof,
and those which, individually or in the aggregate, do not have a Material Adverse Effect.
G. No
Undisclosed Events or Circumstances. As of the date hereof, except for the issuance of Note contemplated by this Agreement, no event,
liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect
to the Company or any or its Subsidiaries or its respective businesses, properties, operations or financial condition, which, under applicable
law, rule or regulation, requires public disclosure or announcement by the Company but which has not been so publicly announced or
disclosed.
H. Indebtedness.
Schedule 3(H) sets forth all outstanding secured and unsecured Indebtedness of the Company or any Subsidiaries on a consolidated
basis as of the date hereof, or for which the Company or any Subsidiary have commitments that would require disclosure as of the date
hereof. For the purposes of this Agreement, “Indebtedness” shall mean (a) any liabilities for borrowed money or
amounts owed (other than trade accounts payable incurred in the ordinary course of business), (b) all guaranties, endorsements and
other contingent obligations in respect of Indebtedness of others, whether or not the same should be reflected in the Company’s
consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business; and (c) the present value of any lease payments due under leases required
to be capitalized in accordance with GAAP. Neither the Company, nor any Subsidiary is in default with respect to any Indebtedness which,
individually or in the aggregate, would have a Material Adverse Effect.
I. Actions
Pending. As of the date hereof, and except as disclosed on Schedule 3(I), there is no action, suit, claim, investigation, arbitration,
alternate dispute resolution proceeding or any other proceeding pending or, to the knowledge of the Company, threatened against or involving
the Company or any Subsidiary before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal,
state, county, local or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the legality,
validity or enforceability of any of the Transaction Documents or the Securities or (ii) could, if there were an unfavorable decision,
have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer
thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws
or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the Securities and Exchange Commission (the “Commission”) involving the Company or any current or former
director or officer of the Company. To the knowledge of the Company, there are no outstanding orders, judgments, injunctions, awards or
decrees of any court, arbitrator or governmental or regulatory body against the Company or any Subsidiary or any of their respective executive
officers or directors in their capacities as such.
J. Compliance
with Law. The Company and each Subsidiary have all franchises, permits, licenses, consents and other governmental or regulatory authorizations
and approvals necessary for the conduct of their respective business as now being conducted by it unless the failure to possess such franchises,
permits, licenses, consents and other governmental or regulatory authorizations and approvals, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
K. No
Violation. The business of the Company and each Subsidiary is not being conducted in violation of any federal, state, local or foreign
governmental laws, or rules, regulations and ordinances of any of any governmental entity, except for possible violations which singularly
or in the aggregate could not reasonably be expected to have a Material Adverse Effect. The Company is not required under federal, state,
local or foreign law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with,
any court or governmental agency in order for it to execute, deliver or perform any of its obligations under the Transaction Documents,
or issue and sell the Note in accordance with the terms hereof or thereof (other than (i) shareholder approval for the Transactions,
(ii) any consent, authorization or order that has been obtained as of the date hereof, (iii) any filing or registration that
has been made as of the date hereof or (iv) any filings which may be required to be made by the Company with the Commission or state
securities administrators subsequent to the Closing).
L. No
Conflicts. The execution, delivery and performance of the Transaction Documents by the Company, the issuance of the Securities and
the consummation by the Company of the transactions contemplated herein and therein do not and will not (i) conflict with or violate
any provision of the COI or Bylaws, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any rights of termination, amendment, anti-dilution or similar adjustment, acceleration
or cancellation of (with or without notice, lapse of time or both), any agreement, mortgage, deed of trust, indenture, note, bond, license,
lease agreement, instrument, obligation or other understand to which the Company is a party or by which it or its properties or assets
are bound or affected, other than with respect to convertible securities with most favored nations or equivalent provisions, (iii) create
or impose a lien, mortgage, security interest, pledge, charge, encumbrance, right of first refusal, preemptive right or other restriction
(collectively, “Lien”) of any nature on any property of the Company under any agreement or any commitment to which
the Company is a party or by which the Company is bound or by which any of its respective properties or assets are bound, or (iv) result
in a violation of any federal, state, local or foreign statute, rule, regulation, order, judgment or decree (including federal and state
securities laws and regulations) applicable to the Company or any of its subsidiaries or by which any property or asset of the Company
or any of its subsidiaries are bound or affected, provided, however, that, excluded from clauses (ii), (iii) and (iv) are
such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate,
have a Material Adverse Effect.
M. Intellectual
Property. Each of the Company and its respective Subsidiaries owns or has the lawful right to use all patents, trademarks, domain
names (whether or not registered) and any patentable improvements or copyrightable derivative works thereof, websites and intellectual
property rights relating thereto, service marks, trade names, copyrights, licenses and authorizations, if any, and all rights with respect
to the foregoing (the “Intellectual Property Rights”), if any, which are necessary for the conduct of their respective
business as now conducted without any conflict with the rights of others, except where the failure to so own or possess would not have
a Material Adverse Effect. As of the date hereof, none of, and neither the Company nor any Subsidiary has received a notice (written or
otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate
or be abandoned, within two (2) years from the date of this Agreement. As of the date hereof, neither the Company nor any Subsidiary
has received, since the date of its inception, a written notice of a claim or otherwise has any knowledge that the Intellectual Property
Rights violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse
Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by
another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to
protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
N. Securities
Act of 1933. Assuming the accuracy of the representations of the Subscriber set forth in Section 4 hereof, the Company
has complied with all applicable federal and state securities laws in connection with the offer, issuance and sale of the Note hereunder.
O. Governmental
Approvals. Except for the filing of any notice prior or subsequent to the Closing Date that may be required under applicable state
and/or federal securities laws (which if required, shall be filed on a timely basis), including the filing of a Form D and a registration
statement or statements pursuant to a Registration Rights Agreement to be entered into with SPAC, no authorization, consent, approval,
license, exemption of, filing or registration with any court or governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, is or will be necessary for, or in connection with, the execution or delivery of the Note, or for the performance
by the Company of its obligations under this Agreement.
P. Investment
Company Act. The Company is not, and is not an affiliate of, and immediately after receipt of payment for the Securities, will not
be or be an affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
Q. No
Integrated Offering. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales of any security or solicited any offers to buy any security under circumstances that would cause the
offering of the Note to be integrated with prior offerings by the Company for purposes of the Securities Act which would prevent the Company
from selling the Note pursuant to Rule 506 under the Securities Act, nor will the Company or any of its affiliates take any action
or steps that would cause the offering of the Note to be integrated with other offerings.
R. No
Disqualification Events. With respect to the Note to be offered and sold hereunder in reliance on Rule 506 under the Securities
Act, none of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company
participating in the offering hereunder, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities,
calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected
with the Company in any capacity at the time of sale (each, an “Issuer Covered Person” and, together, “Issuer
Covered Persons”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to
(viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or
(d)(3). The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event.
The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Subscriber
a copy of any disclosures provided thereunder.
S. Disclosure.
All of the disclosure furnished by or on behalf of the Company to the Subscriber regarding the Company and its Subsidiaries, their respective
businesses and the transactions contemplated hereby, including the Schedule of Exceptions to this Agreement and the other Transaction
Documents, is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The Company
acknowledges and agrees that no Subscriber makes or has made any representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in Section 4 hereof.
4. Representations
of Subscriber. Subscriber
hereby represents and warrants to Company as follows:
a. Subscriber
is familiar with the Company and has relied only on the information provided to Subscriber in writing by the Company. Subscriber understands
that all documents pertaining to this investment have been made available for inspection by Subscriber, Subscriber’s attorney and/or
accountant and/or financial advisor. Subscriber and/or Subscriber’s advisor(s) have had a reasonable opportunity to ask questions
and receive answers from the Company concerning the terms and conditions of the Offering, and to obtain additional information, to the
extent possessed or obtainable without unreasonable expense or effort. All such questions have been answered to the full satisfaction
of Subscriber. No oral representations have been made or oral information furnished to the Subscriber or Subscriber’s advisor(s) in
connection with the Offering of Common Stock.
b. Subscriber
is acquiring the Note for Subscriber’s own account, for investment, and not with a view to, or for sale in connection with, any
distribution thereof within the meaning of the Securities Act of 1933, as amended (the “Act”) or under any state securities
laws, as may be applicable. Subscriber understands that the Note has not been registered by the Company under the Act in reliance upon
the offering exemptions contained in Rule 504 of Regulation Adopted under the Act and Section 4(a)(2) of the Act and that
such reliance is based in part upon these representations. Subscriber further understands that the Common Stock has not been qualified
under any applicable state securities laws and that such reliance is based in part upon these representations. Subscriber understands
that the newly issued Note must be held indefinitely unless they are subsequently registered and qualified (which the Company is not obligated
to do and has no present intention of doing) or an exemption from registration or qualification is available under the Act and applicable
state securities laws.
c. Subscriber
understands that the sale of the Note has not been endorsed, recommended or reviewed by any Federal or State agency or office.
d. Subscriber
has decided to subscribe to purchase the Note solely on Subscriber’s own independent investigation and evaluation of the planned
operations of the Company and has relied on no oral statements, representations, or warranties as to the operation of the Company or the
quality of Subscriber’s investment.
e. Subscriber
is knowledgeable and experienced with respect to investment matters such as the proposed investment in the Company. Subscriber has such
knowledge and experience in financial and business matters that Subscriber is capable of evaluating the risks and merits of the prospective
investment in the Note.
f. Subscriber
is aware that an investment in the Note is sufficiently speculative that Subscriber could lose Subscriber’s entire investment and
that Subscriber’s financial condition is such that Subscriber is able to bear the economic risks of investment in the Common Stock
including risk of loss of Subscriber’s entire investment in the Common Stock should the Note become worthless.
g. Subscriber
is aware based on Subscriber’s investment experience and Subscriber’s own independent investigation an evaluation of the planned
operations of the Company, that this subscription for the purchase of the Note involves a high degree of risk. Subscriber hereby acknowledges
that Subscriber is aware of the nature of these risks and has nonetheless decided to subscribe for the purchase of the Note.
5. Indemnification.
Subscriber agrees to indemnify, defend and hold harmless the Company, and its respective officers, directors, employees, agents, contractors
and affiliates, from and against all damages, losses, costs and expenses (including reasonable attorney’s fees) which they may incur
by reason of the failure of the undersigned to fulfill any of the terms or conditions of this Agreement, or by reason of or attributable
to any breach of the representations and warranties made by the undersigned herein, or in any documents provided by the undersigned to
the Company or the fact that any of such representations and warranties or acknowledgments and understandings set forth herein or therein
are untrue or without adequate factual basis to be considered true and not misleading. The Company agrees to indemnify, defend and hold
harmless the Subscriber, and its respective officers, directors, employees, agents, contractors and affiliates, from and against all damages,
losses, costs and expenses (including reasonable attorney’s fees) which they may incur by reason of the failure of the undersigned
to fulfill any of the terms or conditions of this Agreement, or by reason of or attributable to any breach of the representations and
warranties made by the undersigned herein, or in any documents provided by the undersigned to the Subscriber or the fact that any of such
representations and warranties or acknowledgments and understandings set forth herein or therein are untrue or without adequate factual
basis to be considered true and not misleading.
6. Covenants.
a. The
Company hereby agrees not to enter into any merger agreement with SPAC which would result in the Company, directly or indirectly, becoming
a public company unless such merger agreement requires that, contingent upon the consummation of the Transactions, SPAC will then immediately
issue to Subscriber a warrant to purchase 400,000 shares of common stock of SPAC at a price of $12.50 per share, substantially on the
same terms as the warrants to be issued in any private placement to be consummated in connection with the Transactions.
b. SPAC
hereby agrees to, in the event of the consummation of the Transactions, convert the Outstanding Balance (as defined in the Note)
into 800,000 shares of Parent Class A Common Stock (as defined in the Business Combination Agreement) pursuant to the terms of the
Note.
c. For so
long as the Subscriber continues to hold the Note or own 5% or more of the Company’s common stock, the Subscriber shall have the
exclusive right to nominate one director to the Company’s Board of Directors (“Board”) (a “Subscriber
Director”) and to nominate an observer on the Company’s Board (the “Board Observer”). Within two (2) business
days of receipt of the first installment of payment for the Note, the Company will appoint (i) a designee of Subscriber as a member
of the Company’s Board, and (ii) a second designee of Subscriber to be the Board Observer. The
Company agrees to use its best efforts to cause the Subscriber Director to be nominated for election to
the Company's Board at each annual or special meeting of the stockholders of the Company at which the general election
of directors of the Company is to take place. A
Subscriber Director so elected shall serve for a term of one year and until his successor is elected and qualified. Any vacancy
in the position of a Subscriber Director may be filled only by the affirmative vote of the Subscriber. A Subscriber Director
may, during his or her term of office, be removed at any time, with or without cause, by and only by the affirmative vote, at a special
meeting or the written consent, of the Subscriber. Any vacancy created by such removal may also be filled at such meeting or
by such consent. The Board Observer shall be entitled
to attend all meetings of the Board and any committees of the Board to receive all information provided to the members of the Board or
its committees (including minutes of previous meetings of the Board or such committees) in the same manner as the directors.
d. In
the event that the Transactions are consummated and, in connection therewith, the Subscriber enters into a Registration Rights Agreement
with SPAC, the Company will ensure that such Registration Rights Agreement provides registration rights to Subscriber with respect to
the Conversion Shares on the same terms as any other shares of Subscriber that have registration rights under such Registration Rights
Agreement.
e. Except
as expressly contemplated by this Agreement, any other agreement to which the Company and Subscriber are parties, or the Business Combination
Agreement, from the date hereof until the earlier of the Closing Date (as defined in the Business Combination Agreement) or the date of
termination of the Business Combination Agreement pursuant to its terms, the Company shall not (i) pay, declare or promise to pay
any dividends, distributions or other amounts with respect to its capital stock or other equity securities; (ii) pay, declare or
promise to pay any other amount to any stockholder or other equity holder in its capacity as such; or (iii) except as contemplated
hereby, in the Business Combination Agreement or by any Additional Agreement (as defined in the Business Combination Agreement), amend
any term, right or obligation with respect to any outstanding shares of its capital stock or other equity securities.
f. Pledge
of Securities. The Company acknowledges and agrees that the Note may be pledged by Subscriber in connection with a bona fide
margin agreement or other loan or financing arrangement that is secured by the Note. The pledge of the Note shall not be deemed to be
a transfer, sale or assignment of the Note hereunder, and no Subscriber effecting a pledge of the Note shall be required to provide the
Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction Document;
provided, that a Subscriber and its pledgee shall be required to comply with the provisions of hereof in order to effect a sale,
transfer or assignment of the Note to such pledgee. At a Subscriber’s expense, the Company hereby agrees to execute and deliver
such documentation as a pledgee of the Note may reasonably request in connection with a pledge of the Note to such pledgee by a Subscriber,
in accordance with applicable laws relating to the transfer of the securities.
7. Use
of Proceeds. The Company shall use the proceeds from the issue of the sale of Note hereunder
for working capital and general corporate purposes as well for payments related to negotiating and entering into the Business Combination
Agreement and consummating the transactions contemplated thereunder.
8. Miscellaneous.
A. Fees
and Expenses. Except as otherwise set forth in this Agreement and the other Transaction Documents, each party shall pay the fees and
expenses of its advisors, counsel, accountants and other experts, if any, and all other expenses, incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including,
without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any conversion or
exercise notice delivered by a Subscriber), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities
to the Subscriber.
B. Specific
Enforcement; Consent to Jurisdiction. The Company and the Subscriber acknowledge and agree that irreparable damage would occur in
the event that any of the provisions of this Agreement or the other Transaction Documents were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions
to prevent or cure breaches of the provisions of this Agreement or the other Transaction Documents and to enforce specifically the terms
and provisions hereof or thereof, this being in addition to any other remedy to which any of them may be entitled by law or equity. Each
of the Company and the Subscriber (i) hereby irrevocably submits to the jurisdiction of the United States District Court sitting
in the Southern District of New York and the courts of the State of New York located in New York county for the purposes of any suit,
action or proceeding arising out of or relating to this Agreement or any of the other Transaction Documents or the transactions contemplated
hereby or thereby and (ii) hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of such court, that the suit, action or proceeding is brought in an inconvenient forum or that
the venue of the suit, action or proceeding is improper. Each of the Company and the Subscriber consents to process being served in any
such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing in this Section 8(B) shall affect or limit any right to serve process
in any other manner permitted by law. Each party hereby irrevocably waives personal service of process and consents to process being served
in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted by law.
C. Entire
Agreement; Amendment. This Agreement and the other Transaction Documents contains the entire understanding and agreement of the parties
with respect to the matters covered hereby and, except as specifically set forth herein or in the Transaction Documents, neither the Company
nor the Subscriber makes any representations, warranty, covenant or undertaking with respect to such matters and they supersede all prior
understandings and agreements with respect to said subject matter, all of which are merged herein. No provision of this Agreement nor
any of the Transaction Documents may be waived or amended other than by a written instrument signed by the Company and the Subscriber,
and no provision hereof may be waived other than by a written instrument signed by the party against whom enforcement of any such waiver
is sought. No consideration shall be offered or paid to any person to amend or consent to a waiver or modification of any provision of
any of the Transaction Documents unless the same consideration is also offered to all of the parties to the Transaction Documents.
D. Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communication is delivered via
electronic mail (“Email”) at the Email address set forth on the signature pages attached hereto at or prior to
5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or
communication is delivered via Email at the Email address set forth on the signature pages attached hereto on a day that is not a
Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following
the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom
such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached
hereto.
E. Waivers.
No waiver by any party of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be
a continuing waiver in the future or a waiver of any other provisions, condition or requirement hereof, nor shall any delay or omission
of any party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter.
F. Headings.
The section headings contained in this Agreement (including, without limitation, section headings and headings in the exhibits and schedules)
are inserted for reference purposes only and shall not affect in any way the meaning, construction or interpretation of this Agreement.
Any reference to the masculine, feminine, or neuter gender shall be a reference to such other gender as is appropriate. References to
the singular shall include the plural and vice versa.
G. Successors
and Assigns. This Agreement may not be assigned by a party hereto without the prior written consent of the Company or the Subscriber,
as applicable, provided, however, that, subject to federal and state securities laws and as otherwise provided in the Transaction
Documents, Subscriber may assign its rights and delegate its duties hereunder in whole or in part (a) to a third party acquiring
all or substantially all of the Note in a private transaction or (b) to an affiliate, in each case, without the prior written consent
of the Company after notice duly given by such Subscriber to the Company provided, that no such assignment or obligation shall
affect the obligations of such Subscriber hereunder and that such assignee agrees in writing to be bound, with respect to the transferred
securities, by the provisions hereof that apply to the Subscriber. The provisions of this Agreement shall inure to the benefit of and
be binding upon the respective permitted successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
H. No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors
and assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
I. Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal Actions concerning the interpretations, enforcement and defense of the transactions contemplated
by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors,
officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting
in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in
the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any Action, any claim that it is not personally subject to the jurisdiction of any such court, that
such Action is improper or is an inconvenient venue for such Action. Each party hereby irrevocably waives personal service of process
and consents to process being served in any such Action by mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any other manner permitted by law. If any party shall commence an Action to enforce any provisions of the
Transaction Documents, then, the prevailing party in such Action shall be reimbursed by the non-prevailing party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action.
J. Survival.
The representations and warranties of the Company and the Subscriber shall survive the execution and delivery hereof and the Closing hereunder.
K. Counterparts.
This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and, all
of which taken together shall constitute one and the same Agreement and shall become effective when counterparts have been signed by each
party and delivered to the other parties hereto, it being understood that all parties need not sign the same counterpart. In the event
that any signature is delivered by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such “.pdf”
signature page were an original thereof.
L. Publicity.
The Company agrees that it will not disclose, and will not include in any public announcement, the name of the Subscriber without the
consent of the Subscriber unless and until such disclosure is required by law or applicable regulation, and then only to the extent of
such requirement.
M. Severability.
The provisions of this Agreement and the Transaction Documents are severable and, in the event that any court of competent jurisdiction
shall determine that any one or more of the provisions or part of the provisions contained in this Agreement or the Transaction Documents
shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision or part of a provision of this Agreement or the Transaction Documents and such provision shall be
reformed and construed as if such invalid or illegal or unenforceable provision, or part of such provision, had never been contained herein,
so that such provisions would be valid, legal and enforceable to the maximum extent possible.
N. WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH
KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY
AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
[Remainder Of Page Intentionally Left Blank;
Signature Page Follows]
TYPE OF OWNERSHIP
(Check One)
¨
Individual (one signature required)
¨
Joint Tenants with right of survivorship (all joint tenants must sign)
¨
Tenants in Common (all tenants-in-common must sign)
¨
Community Property (one signature if held in one name; two signatures if held in both names)
¨
Trust (trustee signature required)
¨
Corporation (authorized officer signature required)
¨
Partnership (authorized partner signature required)
¨
Limited Liability Company (managing member or manager signature)
Please print here the name(s) investor
desires for common stock ownership
THE UNDERSIGNED SUBSCRIBER HEREBY REPRESENTS THAT IT HAS READ THIS
ENTIRE SUBSCRIPTION AGREEMENT.
SIGNATURE PAGE FOR INVESTORS WHO
ARE TRUSTS, CORPORATONS, PARTNERSHIPS OR OTHER ENTITIES
| By: |
/s/ Matt McClean |
|
Matt McClean |
|
(Signature
of authorized trustee, officer or partner) (Print name of authorized trustee, officer or partner)
| Print Title: |
Chief Executive Officer |
|
| Address of Principal |
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| Corporate Offices: |
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| Mailing Address, if |
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| Different: |
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Attention: |
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Executed at , this day
of , 2023
ACCEPTANCE
The Company hereby
accepts the subscription embodied in the Subscription Agreement, such acceptance to be effective upon receipt of funds subject to all
the terms and conditions set forth herein and in the Summary.
Set Jet, Inc.
| |
By: |
/s/
Thomas P Smith |
| |
Name: |
Thomas P Smith |
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Its: |
Chief Executive Officer |
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Date: |
July 17, 2023 |
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Revelstone Capital Acquisition Corp.
(solely with respect to Sections 6(a) and
(b) hereunder) |
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By: |
/s/ Morgan Callagy |
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Name: |
Morgan Callagy |
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Its: |
Co-Chief Executive Officer |
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By: |
/s/ Daniel
Neukomm |
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Name: |
Daniel Neukomm |
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Its: |
Co-Chief Executive Officer |
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Date: |
July 17, 2023 |
Schedule A
SET JET, INC
Certification of Accredited Investor
Status
Initial the appropriate item(s)
The following certifications are additional representations
and warranties by Subscriber:
| A. | Individual investors: (Please initial one or more of the following three statements) |
| 1._____ | I certify that I am an accredited investor because I have had individual
income (exclusive of any income earned by my spouse) of more than $200,000 in each of the two most recent years and I reasonably expect
to have individual income in excess of $200,000 for the current year. |
| 2._____ | I certify that I am an accredited investor because I have had joint income
with my spouse in excess of $300,000 in each of the two most recent years and reasonably expect to have joint income with my spouse in
excess of $300,000 for the current year. |
| 3._____ | I certify that I am an accredited investor because I have individual
net worth, or my spouse and I have joint net worth, in excess of $1,000,000. |
| B. | Partnerships,
corporations, trusts or other entities: (Please initial one of the following five statements). |
Subscriber certifies that Subscriber is an accredited
investor because Subscriber is:
| 1._____ | a self-directed employee benefit plan, including an Individual Retirement
Account, with investment decisions made solely by persons that are accredited investors; |
| 2._____ | an organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended, not formed for the specific purpose of acquiring Class C Units, with total assets in excess of
$5,000,000; |
| 3._____ | a corporation, partnership or Massachusetts or similar business trust, not
formed for the specific purpose of acquiring Class C Units, with total assets in excess of $5,000,000; |
| 4._____ | a trust, not formed for the specific purpose of acquiring Class C Units,
with total assets in excess of $5,000,000, whose purchase is directed by a person who has such knowledge and experience in financial and
business matters he or she is capable of evaluating the merits and risks of an investment in the Company; or |
| 5._____ | an entity (including a revocable grantor trust other than a conventional
trust) in which each of the equity owners qualifies as an accredited investor under item A(1), (2) or (3) above. |
Investment Wire Transfer Instructions
Individuals and entities that wish to transfer
funds to Set Jet, may direct their financial institution to transfer funds using the following information:
| Receiving Bank: | |
Bank
of America, NA |
| | |
|
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100
W. 33rd Street |
| | |
|
| | |
New
York, NY 10001 |
| | |
|
| Routing Number: | |
026009593 (ABA) |
| | |
|
| Swift Code: | |
BOFAUS3N
(International Wires Only) |
| | |
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| Account Name: | |
Set
Jet |
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| Account Number: | |
4570 4878 3385 |
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| Reference: | |
Set
Jet Investment |
EXHIBIT A
Form of
Note
THIS NOTE AND THE SECURITIES ISSUABLE
UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT
AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN EXEMPTION THEREFROM.
THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE OR TRANSFER,
PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
SET JET, INC.
CONVERTIBLE PROMISSORY NOTE
| $4,000,000.00 | |
July 17, 2023 |
FOR
VALUE RECEIVED, Set Jet, Inc., a Nevada corporation with an address of 15011 North 75th Street, Scottsdale, Arizona 85260 (the “Company”)
promises to pay Coleman Asset Management Group Ltd., with an address set forth below its signature hereto (“Investor”), or its
assigns, in lawful money of the United States of America the principal sum of Four Million Dollars ($4,000,000.00) (the “Principal
Balance”) or such lesser amount as shall equal the then outstanding principal amount (the “Principal Balance”),
together with interest from the date of this Convertible Promissory Note (this “Note”) on the unpaid principal balance
at a rate equal to five percent (5%) per annum, computed on the basis of the actual number of days elapsed and a year of 365 days. All
unpaid principal, together with any then unpaid and accrued interest and other amounts payable hereunder, shall be due and payable on
the earlier of (the “Maturity Date”): (i) June 30, 2024, (ii) within 60 days of the election of the Company to not
convert this Note in accordance with Section 5(a)(i)(2) herein; or (iii) when, upon the occurrence and during the continuance
of an Event of Default, such amounts are declared due and payable by Investor or made automatically due and payable.
The following is a statement
of the rights of Investor and the conditions to which this Note is subject, and to which the Parties, by the acceptance of this Note,
agree:
1.
Payments
(a)
Interest. Accrued interest on this Note shall be payable at maturity.
(b)
Prepayment. Subject to Section 3(a), prepayment of this Note may not be made prior to the Maturity Date.
2.
Events of Default. The occurrence of any of the following shall constitute an “Event of Default”
under this Note:
(a)
Failure to Pay. The Company shall fail to pay: (i) when due any principal payment on the due date; or (ii) any
interest payment or other payment required under the terms of this Note on the date due and such payment shall not have been made within
five (5) business days of the Company’s receipt of written notice to the Company of such failure to pay; or (iii) the Company shall
breach any other provision or covenant under this Note;
(b)
Voluntary Bankruptcy or Insolvency Proceedings. The Company shall: (i) apply for or consent to the appointment of a
receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (ii) admit in writing its inability
to pay its debts generally as they mature, (iii) make a general assignment for the benefit of any of its creditors, (iv) be
dissolved or liquidated, (v) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such
relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced
against it, or (vi) take any action for the purpose of effecting any of the foregoing; or
(c)
Involuntary Bankruptcy or Insolvency Proceedings. Proceedings for the appointment of a receiver, trustee, liquidator or
custodian of the Company, or of all or a substantial part of the property thereof, or an involuntary case or other proceedings seeking
liquidation, reorganization or other relief with respect to the Company or the debts thereof under any bankruptcy, insolvency or other
similar law now or hereafter in effect shall be commenced and an order for relief entered or such proceeding shall not be dismissed or
discharged within 45 days of commencement.
3.
Subordination. Notwithstanding anything to the contrary contained in this Note, the Company and Investor
agree to the following:
(a)
Subordination of Note; Permitted Payments of Note. This Note shall be subordinate and junior in right of payment and collection,
including principal, interest and all other amounts payable hereunder, to the payment and collection in full of any obligations of (i)
any current financing agreement entered into by the Company, including principal, interest and all other amounts payable thereunder, which
restricts, limits, or prohibits payments under this Note and (ii) any future financing agreement entered into by the Company, as approved
by the board of directors of the Company, including principal, interest and all other amounts payable thereunder, which restricts, limits,
or prohibits payments under this Note (collectively, the “Senior Debt”). Until all Senior Debt has been paid in full,
the Company will not pay and Investor will not accept any payment on this Note other than payments expressly permitted below (the “Permitted
Subordinated Debt Payments”), and Investor shall not be entitled to enforce or receive payment thereof (other than Permitted
Subordinated Debt Payments) until all Senior Debt has been paid in full.
(b)
Remedies. Except as set forth in Section 4, without prior written permission from each creditor under any Senior
Debt (each, a “Senior Creditor”), Investor will not be a party to any action to enforce or attempt to enforce any right
or remedy available with respect to this Note, applicable law or otherwise including, without limitation, any action to (A) accelerate
the maturity of all or any part of this Note, (B) to take from or for the account of the Company, by set off or in any other manner, the
whole or any part of any moneys which may now or hereafter be owing by the Company with respect to this Note, (C) realize or foreclose
upon, repossess, sell or otherwise dispose of, liquidate, or otherwise restrict or interfere with the use of, the Company’s property,
(D) commence, continue or join in any proceeding with respect to the Company’s property, (E) commence, continue or participate in
any suit, case, action or proceeding or other collection or enforcement action of any kind, against the Company or the Company’s
property, in any case, seeking, directly or indirectly, to sue for payment, to enforce any other rights or remedies, or to enforce any
of the obligations incurred by the Company, under or in connection with this Note, or (F) commence or pursue any judicial, arbitral or
other case, proceeding or other legal action of any kind, seeking injunctive or other equitable relief to prohibit, limit or impair the
commencement or pursuit by any agent (under the Senior Debt) of any of its rights or remedies under or in connection with the Senior Debt
(clauses (A) through (F) collectively, an “Enforcement Action”), or any other action or proceeding against any person
to recover any sums due hereunder or foreclose any liens (if any) securing this Note.
(c)
Modifications. At any time and from time to time, without Investor’s consent or notice to Investor, and without liability
to Investor and without releasing or impairing any of the rights of any Senior Creditor against Investor or any of Investor’s obligations
hereunder, any Senior Creditor may take security for Senior Debt; release, exchange, or subordinate any security for Senior Debt; release
any person obligated on Senior Debt; modify, amend, restate, extend or waive compliance with any agreement, instrument or other document
relating to Senior Debt, including, without limitation, increasing Senior Debt; apply sums paid by any party to the Senior Debt in any
order or manner as determined by the applicable Senior Creditor, subject to the terms of the Senior Debt; grant any adjustment, extension,
indulgence, or forbearance to, or compromise with, any person liable for Senior Debt; neglect, delay, omit, fail, or refuse to take or
prosecute any action for collection of any Senior Debt, or to foreclose any collateral or take or prosecute any action on any agreement
securing any Senior Debt.
(d)
Further Assurances. Investor covenants and agrees to execute and deliver such customary documents and instruments as may
be reasonably requested by any Senior Creditor to evidence the subordination of this Note as contemplated herein, including, without limitation,
executing a separate subordination agreement which includes the subordination terms reflected herein and any other provisions customarily
included in agreements governing such relationships that do not alter or expand Investor’s or the Company’s rights or obligations
under this Note.
4.
Rights of Investor upon Default.
(a)
Upon the occurrence of any Event of Default under Sections 2(a) or 2(b), and at any time thereafter during
the continuance of such Event of Default (but in call cases subject to Section 3), Investor may declare all outstanding Obligations
to be immediately due and payable without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly
waived, anything contained herein to the contrary notwithstanding.
(b)
Upon the occurrence of any Event of Default under Section 2(c), immediately and without notice (but in all cases subject
to Section 3), all outstanding Obligations payable by the Company hereunder shall automatically become immediately due and payable,
without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything contained herein
to the contrary notwithstanding; provided, however, that notwithstanding the acceleration of this Note pursuant to this Section 4(b),
Investor shall not take any action to enforce payment of this Note or exercise its other remedies prior to one hundred and twenty (120)
days after the date of acceleration of the Senior Debt; provided, further, that such acceleration of this Note shall automatically be
waived and of no further force and effect if, during such one hundred and twenty (120)-day period, such Senior Debt acceleration and the
related defaults shall have been permanently waived or the Senior Debt shall have been paid in full by refinance or otherwise.
(c)
In addition to the foregoing remedies, and subject to Section 3, upon the occurrence and during the continuance of any Event
of Default, Investor may exercise any other right, power or remedy permitted to it by law, either by suit in equity or by action at law,
or both.
5.
Conversion
(a)
Conversion.
(i)
The outstanding Principal Balance, together with all accrued interest under this Note (collectively, the “Outstanding Balance”),
shall convert into shares of Parent Class A Common Stock or Common Stock pursuant to Section 5(a)(ii) or Section 5(a)(iii)
(the “Conversion”) (1) automatically upon the Closing (as such term is defined in the Merger Agreement) of the
Merger Agreement (the “Merger Conversion”); or (2) upon the election of the Company made within 60 days after termination
of the Merger Agreement in accordance with the terms therein (the “Termination Conversion”).
(ii)
Upon a Merger Conversion, the Outstanding Balance shall convert into 800,000 of shares of Parent Class A Common Stock (as defined in
the Merger Agreement) and a ten-year warrant to purchase 400,000 shares of Parent Class A Common Stock with an exercise price of $12.50
per share on substantially the same terms as the warrant to be issued to the Investor upon the Closing.
(iii)
Upon a Termination Conversion, the Outstanding Balance shall convert into 4,000,000 of shares of Common Stock.
(iv) After a Conversion, the Company shall, as soon as practicable thereafter, issue and deliver (or cause to be issued and delivered) to
Investor a certificate or certificates for the number of shares to which Investor shall be entitled upon the Conversion.
(b)
Conversion Procedure. Upon a Merger Conversion, Investor hereby agrees to deliver the original of this Note (or a notice
to the effect that the original Note has been lost, stolen or destroyed and an agreement acceptable to the Company whereby Investor agrees
to indemnify the Company from any loss incurred by it in connection with this Note) to the Exchange Agent (as defined in the Merger Agreement)
pursuant to this Section 5(b) and Section 3.4(b)(ii) of the Merger Agreement. Upon the Conversion, Investor hereby agrees
to deliver the original of this Note (or a notice to the effect that the original Note has been lost, stolen or destroyed and an agreement
acceptable to the Company whereby Investor agrees to indemnify the Company from any loss incurred by it in connection with this Note)
to the Company for cancellation; provided, however, that upon satisfaction of the conditions set forth in this Section 5,
this Note shall be deemed converted and of no further force and effect, whether or not it is delivered for cancellation as set forth herein.
(c)
Effect of Conversion. Upon the Conversion, the Company shall be forever released from all its obligations and liabilities
under this Note and this Note shall be deemed of no further force or effect, whether or not the original of this Note has been delivered
to the Company for cancellation.
(d)
Exclusion from Earnout. For the avoidance of doubt, the Conversion shall not entitle Investor to participate in earnout
referred to in Section 3.6 of the Merger Agreement.
6.
Representations and Warranties of Investor. Investor hereby represents and warrants to the Company,
as of the date hereof, that:
(a)
Authorization. Investor has full power and authority to enter into this Note. This Note, when executed and delivered by
Investor, will constitute valid and legally binding obligations of Investor, enforceable in accordance with its terms, except as limited
by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting
enforcement of creditors’ rights generally, and as limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies.
(b)
Purchase Entirely for Own Account. This Note is made with Investor in reliance upon Investor’s representation to the
Company, which by Investor’s execution of this Note Investor hereby confirms, upon the Conversion or the exercise of the Warrant,
the Common Stock will be acquired for investment for Investor’s own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that Investor has no present intention of selling, granting any participation in or otherwise
distributing the same. By executing this Note, Investor further represents that Investor does not presently have any contract, undertaking,
agreement or arrangement with any party to sell, transfer or grant participations to such party with respect to the Securities. Investor
has not been formed for the specific purpose of acquiring this Note.
(c)
Disclosure of Information. Investor has had an opportunity to discuss the Company’s business, management, financial
affairs and the terms and conditions of the offering of this Note with the Company’s management and has had an opportunity to review
the Company’s facilities.
(d)
Restricted Securities. Investor understands that the Common Stock has not been, and will not be, registered under the Securities
Act, by reason of a specific exemption from the registration provisions of the Securities Act, which depends upon, among other things,
the bona fide nature of the investment intent and the accuracy of Investor’s representations as expressed herein. Investor understands
that the Common Stock are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant
to such laws, Investor, upon the Conversion or the exercise of the Warrant, must hold the Common Stock indefinitely unless they are registered
with the Securities and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualification
requirements is available. Investor acknowledges that the Company has no obligation to register or qualify the Common Stock for resale.
Investor further acknowledges that, if an exemption from registration or qualification is available, then it may be conditioned on various
requirements, including, but not limited to, the time and manner of sale, the holding period for the Common Stock and on requirements
relating to the Company which are outside of Investor’s control, and which the Company is under no obligation and may not be able
to satisfy.
(e)
No Public Market. Investor understands that no public market now exists for the Common Stock, and that the Company has made
no assurances that a public market will ever exist for the Common Stock.
(f)
Legends. Investor understands that any securities issued in respect of or exchange for this Note may be notated with one
or all of the following legends:
(i) “THIS NOTE AND THE SECURITIES ISSUABLE UPON THE CONVERSION OR THE EXERCISE OF THE WARRANT HEREOF HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION
OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE
ACT AND ANY APPLICABLE STATE SECURITIES LAWS.”
(ii)
Any legend required by the securities laws of any state to the extent that such laws are applicable to the shares represented by the
certificate, instrument, or book entry so legended.
(g)
Accredited Investor. Investor is an accredited investor, as defined in Rule 501(a) of Regulation D promulgated under the
Securities Act.
(i)
No General Solicitation. Neither Investor nor any of its officers, managers, directors, employees, agents, members or partners
has either, directly or indirectly, including through a broker or finder, (i) engaged in any general solicitation, or (ii) published
any advertisement in connection with the offer and sale of this Note.
(j)
Residence. The office of Investor’s principal place of business is as identified in the address set forth on the signature
page hereto.
7.
Voting Rights.
(a)
Investor shall not have any voting rights until Investor has exercised the conversion rights, as set forth herein.
8.
Definitions. As used in this Note, the following capitalized terms have the following meanings:
“Common
Stock” shall mean shares of common stock of the Company, par value $0.0001.
“Investor”
shall mean the Person specified in the introductory paragraph of this Note or any Person who shall at the time be the registered holder
of this Note.
“Merger
Agreement” means that certain Merger Agreement by and among the Company, Revelstone Capital Acquisition Corp., Revelstone Capital
Merger Sub, Inc., and Thomas P. Smith, dated as of the date hereof, pursuant to which the Company will merge with a special purpose acquisition
company or its subsidiary in which the common stock (or similar securities) of the surviving or parent entity are listed on a national
or regional securities exchange.
“Note” shall
mean this Convertible Promissory Note.
“Obligations”
shall mean and include all loans, advances, debts, liabilities and obligations, howsoever arising, owed by the Company to Investor of
every kind and description, now existing or hereafter arising under or pursuant to the terms of this Note, including, all interest, fees,
charges, expenses, attorneys’ fees and costs and accountants’ fees and costs chargeable to and payable by the Company hereunder
and thereunder, in each case, whether direct or indirect, absolute or contingent, due or to become due, and whether or not arising after
the commencement of a proceeding under Title 11 of the United States Code (11 U. S. C. Section 101 et seq.), as amended
from time to time (including post-petition interest) and whether or not allowed or allowable as a claim in any such proceeding.
“Person”
shall mean and include an individual, a partnership, a corporation (including a business trust), a joint stock company, a limited liability
company, an unincorporated association, a joint venture or other entity or a governmental authority.
“Securities Act”
shall mean the Securities Act of 1933, as amended.
“Termination
Conversion” shall mean a Conversion that occurs upon the election of the Company to convert within 60 days of termination of
the Merger Agreement.
9.
Miscellaneous
(a)
Successors and Assigns; Transfer of this Note or Securities Issuable on Conversion Hereof.
(i) Subject to the restrictions on transfer described herein, the rights and obligations of the Company and Investor shall be binding upon
and benefit the successors, assigns, heirs, administrators and transferees of the parties.
(ii) With respect to any offer, sale or other disposition of this Note or securities into which this Note may be converted, Investor shall
give written notice to the Company prior thereto, describing briefly the manner thereof, together with a written opinion of Investor’s
counsel, or other evidence reasonably satisfactory to the Company, to the effect that such offer, sale or other distribution may be effected
without registration or qualification (under any federal or state law then in effect). Upon receiving such written notice and reasonably
satisfactory opinion, if so requested, or other evidence, the Company, as promptly as practicable, shall notify Investor that Investor
may sell or otherwise dispose of this Note or such securities, all in accordance with the terms of the notice delivered to the Company.
If a determination has been made pursuant to this Section that the opinion of counsel for Investor, or other evidence, is not reasonably
satisfactory to the Company, the Company shall so notify Investor promptly after such determination has been made and Investor shall
not be permitted to transfer this Note or securities into which this Note may be converted without first complying, to the Company’s
satisfaction, with this Section. This Note thus transferred and each certificate representing the securities thus transferred shall bear
a legend as to the applicable restrictions on transferability in order to ensure compliance with the Securities Act, unless in the opinion
of counsel for the Company such legend is not required in order to ensure compliance with the Securities Act. The Company may issue stop
transfer instructions to its transfer agent in connection with such restrictions. Subject to the foregoing, transfers of this Note shall
be registered upon registration books maintained for such purpose by or on behalf of the Company. Prior to presentation of this Note
for registration of transfer, the Company shall treat the registered holder hereof as the owner and holder of this Note for the purpose
of receiving all payments of principal and interest hereon and for all other purposes whatsoever, whether or not this Note shall be overdue
and the Company shall not be affected by notice to the contrary.
(iii) Neither this Note nor any of the rights, interests or obligations hereunder may be assigned, by operation of law or otherwise, in whole
or in part, by the Company without the prior written consent of Investor.
(b)
Waiver and Amendment. Any provision of this Note may be amended or modified only upon the written consent of the Company
and Investor. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party.
(c)
Notices. All notices, requests, demands, consents, instructions or other communications required or permitted hereunder
shall be in writing and faxed, mailed, emailed or delivered to each party at the respective addresses of the parties as set forth herein,
or at such other address, email address or facsimile number as a party shall have furnished to the other party in writing in accordance
with this Section. All such notices and communications will be deemed effectively on the earlier of: (i) when received, (ii) when
delivered personally, (iii) one business day after being delivered by facsimile or email (with receipt of appropriate confirmation),
(iv) one business day after being deposited with an overnight courier service of recognized standing, or (v) four days after
being deposited in the U.S. mail, first class with postage prepaid.
(d)
Payment. Unless converted into the Company’s equity securities pursuant to the terms hereof, payment shall be made
in lawful tender of the United States.
(e)
Usury. In the event any interest is paid on this Note which is deemed to be in excess of the then legal maximum rate, then
that portion of the interest payment representing an amount in excess of the then legal maximum rate shall be deemed a payment of principal
and applied against the principal of this Note.
(f)
Waivers. The Company hereby waives notice of default, presentment or demand for payment, protest or notice of nonpayment
or dishonor and all other notices or demands relative to this instrument, except as provided herein.
(g)
Governing Law. This Note and all actions arising out of or in connection with this Note shall be governed by and construed
in accordance with the laws of the State of Arizona, without regard to the conflicts of law provisions of the State of Arizona, or of
any other state.
(h)
Waiver of Jury Trial; Judicial Reference. By acceptance of this Note, Investor hereby agrees and the Company hereby agrees
to waive their respective rights to a jury trial of any claim or cause of action based upon or arising out of this Note or any of the
Transaction Documents. This Section shall not restrict a party from exercising remedies under the Uniform Commercial Code or from exercising
pre-judgment remedies under applicable law.
[Remainder Of Page
Intentionally Left Blank; Signature Page Follows]
The Company has caused this Note to be issued as
of the date first written above.
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SET JET, INC. |
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By: |
/s/ Thomas P. Smith |
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Name: |
Thomas P. Smith |
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Title: |
President and Chief Executive Officer |
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INVESTOR |
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COLEMAN ASSET MANAGEMENT GROUP LTD. |
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By: |
/s/ Matthew McClean |
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Name: |
Matthew McClean |
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Its: |
Chief Executive Officer |
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE
AND, EXCEPT AS SET FORTH IN SECTION 7.1 BELOW, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS AND UNTIL REGISTERED
UNDER SAID ACT AND LAWS OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY, SUCH OFFER, SALE, PLEDGE
OR OTHER TRANSFER IS EXEMPT FROM SUCH REGISTRATION.
WARRANT TO PURCHASE STOCK
This WARRANT TO PURCHASE STOCK
(as amended and in effect from time to time, this “Warrant”) is issued as of the issue date as set forth below (the
“Issue Date”) by Set Jet, Inc., a Nevada corporation (the “Company”) to the holder as set forth
below (the “Holder”). The parties agree as follows:
Section
1. WARRANT PROVISIONS.
| Warrant Section |
Warrant Provision |
| Recitals – “Issue Date” |
[__], 2023 |
| Recitals – “Company” |
Set Jet, Inc., a Nevada corporation |
| Recitals – “Holder” |
|
| Section 2.1 – “Class” |
Common Stock, $0.0001 par value per share. |
| Section 2.1 – “Exercise Price” |
$12.50 per Share. |
| Section 2.2 – “Shares” |
400,000 |
| “Expiration Date” |
[__], 2033. |
Section
2. RIGHT TO PURCHASE SHARES.
2.1
Grant of Right. For good and valuable consideration, the Company hereby grants Holder the right, and Holder is entitled,
to purchase from the Company up to the number (as determined pursuant to Section 2.2 below) of fully paid and non-assessable shares
(each, a “Share”) of the class as set forth above (the “Class”), at a purchase price per Share as
set forth above (the “Exercise Price”), subject to the provisions and upon the terms and conditions set forth in this
Warrant.
2.2
Number of Shares. This Warrant shall be exercisable for the number of Shares of the Class as set forth above (as may be
adjusted from time to time in accordance with the provisions of this Warrant, the “Shares”).
Section
3. EXERCISE.
3.1
Method of Exercise. Holder may exercise this Warrant in whole or in part at any time and from time to time after the Issuance
Date but prior to the Expiration Date or earlier termination of this Warrant, by delivering to the Company the original of this Warrant
together with a duly executed Notice of Exercise in substantially the form attached hereto as Appendix 1 and a check, wire
transfer of same-day funds (to an account designated by the Company), or other form of payment acceptable to the Company for the aggregate
Exercise Price for the Shares being purchased. Notwithstanding any contrary provision herein, to the extent that the original of this
Warrant is an electronic original, in no event shall an original ink-signed paper copy of this Warrant be required for any exercise of
Holder’s rights hereunder, nor shall this Warrant or any physical copy hereof be required to be physically surrendered at the time
of any exercise.
3.2
Delivery of Certificate and New Warrant. Within a reasonable time after Holder exercises this Warrant in the manner set
forth in Section 3.1, the Company shall deliver to Holder a certificate (or, in the case of uncertificated securities, provide notice
of book entry) representing the Shares issued to Holder upon such exercise and, if this Warrant has not been fully exercised and has not
expired, a new warrant of like tenor representing the Shares not so acquired (or surrendered in payment of the aggregate Exercise Price).
3.3
Replacement of Warrant.
(a)
Paper Original Warrant. To the extent that the original of this Warrant is a paper original, on receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of loss, theft or destruction,
on delivery of an indemnity agreement reasonably satisfactory in form, substance and amount to the Company or, in the case of mutilation,
on surrender of this Warrant to the Company for cancellation, the Company shall, within a reasonable time, execute and deliver to Holder,
in lieu of this Warrant, a new warrant of like tenor and amount.
(b)
Electronic Original Warrant. To the extent that the original of this Warrant is an electronic original, if at any time this
Warrant is rejected by any person (including, but not limited to, paying or escrow agents) or any such person fails to comply with the
terms of this Warrant based on this Warrant being presented to such person as an electronic record or a printout hereof, or any signature
hereto being in electronic form, the Company shall, promptly upon Holder’s request and without indemnity, execute and deliver to
Holder, in lieu of electronic original versions of this Warrant, a new warrant of like tenor and amount in paper form with original ink
signatures.
3.4
Treatment of Warrant Upon Acquisition of Company.
(a)
Acquisition. “Acquisition” means any transaction or series of related transactions involving: (i) the
sale, lease, exclusive license, or other disposition of all or substantially all of the assets of the Company; (ii) any merger or
consolidation of the Company into or with another person or entity (other than a merger or consolidation effected exclusively to change
the Company’s domicile), or any other corporate reorganization, in which the stockholders of the Company in their capacity as such
immediately prior to such merger, consolidation or reorganization, own less than a majority of the Company’s (or the surviving or
successor entity’s) outstanding voting power immediately after such merger, consolidation or reorganization; or (iii) any sale
or other transfer by the stockholders of the Company of shares representing at least a majority of the Company’s then-total outstanding
combined voting power. For the avoidance of doubt, “Acquisition” shall not include any sale and issuance by the Company of
shares of its capital stock or of securities or instruments exercisable for or convertible into, or otherwise representing the right to
acquire, shares of its capital stock to one or more investors for cash in a transaction or series of related transactions the primary
purpose of which is a bona fide equity financing of the Company (an “Equity Financing”).
(b)
Treatment of Warrant in Acquisition. Upon the closing of any Acquisition, the acquiring, surviving or successor entity shall
assume this Warrant and the Company’s obligations hereunder, and this Warrant shall thereafter be exercisable for the same securities
and/or other property as would have been paid for the Shares issuable upon exercise of the unexercised portion of this Warrant as if such
Shares were outstanding on and as of the closing of such Acquisition, at an aggregate Exercise Price equal to the aggregate Exercise Price
in effect as of immediately prior to such closing, all subject to further adjustment from time to time thereafter in accordance with the
provisions of this Warrant.
Section
4. CERTAIN ADJUSTMENTS TO THE SHARES,
CLASS AND EXERCISE PRICE.
4.1
Stock Dividends, Splits, Etc. If the Company (i) declares or pays a dividend or distribution on the outstanding shares of
the Class payable in additional shares of the Class (including fractional shares, subject to Section 4.3 below); or (ii) subdivides the
outstanding shares of the Class by reclassification or otherwise into a greater number of shares, the number of Shares purchasable hereunder
shall be proportionately increased, even if such number would include fractional shares, and the Exercise Price shall be proportionately
decreased. If the outstanding shares of the Class are combined or consolidated, by reclassification or otherwise, into a lesser number
of shares, the Exercise Price shall be proportionately increased and the number of Shares shall be proportionately decreased, even if
such number would include fractional shares.
4.2
Reclassification, Exchange, Combination or Substitution. Upon any event whereby all of the outstanding shares of the Class
are reclassified, exchanged, combined, substituted, or replaced for, into, with or by Company securities of a different class and/or series,
then from and after the consummation of such event, “Class” shall mean such securities and this Warrant will be exercisable
for the number of such securities that Holder would have received had the Shares been outstanding on and as of the consummation of such
event, at an aggregate Exercise Price equal to the aggregate Exercise Price in effect as of immediately prior to such event, all subject
to further adjustment thereafter from time to time in accordance with the provisions of this Warrant. The provisions of this Section 4.2
shall similarly apply to successive reclassifications, exchanges, combinations, substitutions, replacements or other similar events.
4.3
No Fractional Share. No fractional Share shall be issued upon exercise of this Warrant, and the number of Shares to be issued
shall be rounded down to the nearest whole Share. If a fractional Share interest arises upon any exercise of this Warrant, the Company
shall eliminate such fractional Share interest by paying Holder in cash an amount equal to (a) such fractional interest, multiplied
by (b) (i) the fair market value of a full Share, less (ii) the then-effective Exercise Price (the “Fractional Share
Value”), unless Holder otherwise elects, in its sole discretion, to waive such payment. Notwithstanding any contrary provision
herein, if this Warrant becomes exercisable for a fractional Share interest at any time or from time to time prior to the exercise in
full of this Warrant, and the Company eliminates such fractional Share interest prior to any exercise of this Warrant, then the then-effective
Exercise Price shall be reduced by an amount equal to the Fractional Share Value, unless Holder otherwise elects, in its sole discretion,
to waive such reduction.
4.4
Certificate as to Adjustments. Within a reasonable time following each adjustment of the Exercise Price, Class and/or number
of Shares pursuant to the terms of this Warrant, the Company, at its expense, shall deliver a certificate of its Chief Financial Officer
or other authorized officer to Holder setting forth the adjustments to the Exercise Price, Class and/or number of Shares and the facts
upon which such adjustments are based. The Company shall, at any time and from time to time within a reasonable time following Holder’s
written request and at the Company’s expense, furnish Holder with a certificate of its Chief Financial Officer or other authorized
officer setting forth the then-current Exercise Price, Class and number of Shares and the computations or other determinations thereof.
Section
5. REPRESENTATIONS AND COVENANTS OF THE
COMPANY.
5.1
Representations and Warranties. The Company represents and warrants to, and agrees with, Holder that all Shares which may
be issued upon the exercise of this Warrant, shall, upon issuance, be duly authorized, validly issued, fully paid and non-assessable,
and free of any liens and encumbrances except for restrictions on transfer provided for herein or under the Company’s Certificate
of Incorporation or Bylaws, each as amended and in effect from time to time (the “Charter Documents”), or applicable
federal and state securities laws. The Company covenants that it shall at all times cause to be reserved and kept available out of its
authorized and unissued capital stock such number of shares of the Class and other securities as will be sufficient to permit the exercise
in full of this Warrant.
5.2
Certain Company Information. The Company will provide such information requested by Holder from time to time, within a reasonable
time following each such request, that is reasonably necessary to enable Holder to comply with Holder’s accounting or reporting
requirements.
Section
6. REPRESENTATIONS AND COVENANTS OF HOLDER.
Holder represents and warrants
to, and agrees with, the Company as follows:
6.1
Investment Representations.
(a)
Purchase for Own Account. This Warrant and the Shares to be acquired upon exercise hereof are being acquired for investment
for Holder’s account, not as a nominee or agent, and not with a view to the public resale or distribution within the meaning of
the Act. Holder also represents that it has not been formed for the specific purpose of acquiring this Warrant or the Shares.
(b)
Disclosure of Information. Holder is aware of the Company’s business affairs and financial condition and has received
or has had full access to all the information it considers necessary or appropriate to make an informed investment decision with respect
to the acquisition of this Warrant and its underlying securities. Holder further has had an opportunity to ask questions of and receive
answers from the Company regarding the terms and conditions of the offering of this Warrant and its underlying securities and to obtain
additional information (to the extent the Company possessed such information or could acquire it without unreasonable effort or expense)
necessary to verify any information furnished to Holder or to which Holder has access.
(c)
Investment Experience. Holder understands that the purchase of this Warrant and its underlying securities involves substantial
risk. Holder has experience as an investor in securities of companies in the development stage and acknowledges that Holder can bear the
economic risk of such Holder’s investment in this Warrant and its underlying securities for an indefinite period of time, and has
such knowledge and experience in financial or business matters that Holder is capable of evaluating the merits and risks of its investment
in this Warrant and its underlying securities and/or has a preexisting personal or business relationship with the Company and certain
of its officers, directors or controlling persons of a nature and duration that enables Holder to be aware of the character, business
acumen and financial circumstances of such persons.
(d)
Accredited Investor Status. Holder is an “accredited investor” within the meaning of Regulation D promulgated
under the Act.
(e)
The Act. Holder understands that this Warrant and the Shares issuable upon exercise hereof have not been registered under
the Act or registered or qualified under the securities laws of any state, and are issued in reliance upon specific exemptions therefrom,
which exemptions depend upon, among other things, the bona fide nature of the Holder’s investment intent as expressed herein. Holder
understands that the Company is under no obligation to so register or qualify this Warrant, the Shares or such other securities. Holder
understands that this Warrant and the Shares issued upon any exercise hereof are “restricted securities” under applicable
federal and state securities laws and must be held indefinitely unless subsequently registered under the Act and registered or qualified
under applicable state securities laws, or unless exemptions from such registration and qualification are otherwise available. Holder
is aware of the provisions of Rule 144 promulgated under the Act.
6.2
No Stockholder Rights. Without limiting any provision of this Warrant, Holder agrees that as a Holder of this Warrant it
will not have any rights (including, but not limited to, voting rights) as a stockholder of the Company with respect to the Shares issuable
hereunder unless and until the exercise of this Warrant and then only with respect to the Shares issued on such exercise.
Section
7. MISCELLANEOUS.
7.1
Compliance with Securities Laws on Transfer. This Warrant and the Shares issued upon exercise hereof may not be transferred
or assigned in whole or in part except in compliance with applicable federal and state securities laws by the transferor and the transferee
(including, without limitation, the delivery of investment representation letters and legal opinions reasonably satisfactory to the Company,
as reasonably requested by the Company).
7.2
Notices. All notices and other communications hereunder from the Company to the Holder, or vice versa, shall be deemed delivered
and effective (i) when given personally, (ii) on the third (3rd) Business Day after being mailed by first-class registered
or certified mail, postage prepaid, (iii) upon actual receipt if given by electronic mail and such receipt is confirmed in writing
by the recipient, or (iv) on the first Business Day following delivery to a reliable overnight courier service, courier fee prepaid,
in any case at such address as may have been furnished to the Company or Holder, as the case may be, in writing by the Company or Holder.
All notices to Holder shall be addressed as follows until the Company receives notice of a change of address in connection with a transfer
or otherwise:
[●]
[Address]
[Address]
Attention: [●]
Telephone: [●]
Email: [●]
All notices to the Company
shall be addressed as follows until Holder receives notice of a change in address:
Set Jet, Inc.
15011 N 75th Street
Scottsdale, AZ 85260
Attn: Thomas P. Smith
Telephone: (408) 264-6500
Email: tom@setjet.com
With a copy that shall not constitute notice to:
Snell & Wilmer L.L.P.
One East Washington Street
Suite 2700
Phoenix, AZ 85004-2556
Attn: Daniel Mahoney
Telephone: (602) 382-6206
Email: dmahoney@swlaw.com
7.3
Amendment and Waiver. Notwithstanding any contrary provision herein, this Warrant may be amended and any provision hereof
waived (either generally or in a particular instance and either retroactively or prospectively) only by an instrument in writing signed
by Holder and any party against which enforcement of such amendment or waiver is sought.
7.4
Counterparts; Electronic Signatures; Status as Certificated Security. This Warrant may be executed by one or more of the
parties hereto in any number of separate counterparts, all of which together shall constitute one and the same instrument. The Company,
Holder and any other party hereto may execute this Warrant by electronic means and each party hereto recognizes and accepts the use of
electronic signatures and the keeping of records in electronic form by any other party hereto in connection with the execution and storage
hereof. To the extent that this Warrant or any agreement subject to the terms hereof or any amendment hereto is executed, recorded or
delivered electronically, it shall be binding to the same extent as though it had been executed on paper with an original ink signature,
as provided under applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act. The fact
that this Warrant is executed, signed, stored or delivered electronically shall not prevent the enforcement of the terms hereof. Physical
possession of the original of this Warrant or any paper copy thereof shall confer no special status to the bearer thereof.
7.5
Headings. The headings in this Warrant are for purposes of reference only and shall not limit or otherwise affect the meaning
of any provision of this Warrant.
7.6
Governing Law. This Warrant shall be governed by and construed in accordance with the laws of the State of Nevada, without
giving effect to its principles regarding conflicts of law.
7.7
Jurisdiction and Venue. The Company and Holder each irrevocably and unconditionally submit to the exclusive jurisdiction
of the State and Federal courts in Clark County, Nevada.
7.8
Survival. This Section 7 shall survive the termination of this Warrant.
[Signature page follows]
IN WITNESS WHEREOF,
the parties have caused this Warrant To Purchase Stock to be executed by their duly authorized representatives effective as of the Issue
Date written above.
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COMPANY: |
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SET
JET, INC. |
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By: |
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Name:
Thomas P. Smith |
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Title:
President |
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HOLDER: |
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[●] |
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By: |
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APPENDIX 1
Form of Notice of Exercise of Warrant
1.
The undersigned Holder hereby exercises its right to purchase ___________ shares of the Common Stock of Set Jet, Inc. (the “Company”)
in accordance with the attached Warrant To Purchase Stock, and tenders payment of the aggregate Exercise Price for such shares as follows:
¨ Check in the amount of $________
payable to order of the Company enclosed herewith
¨ Wire transfer of immediately
available funds to the Company’s account
¨ Other (Describe) __________________________________________
2.
Please issue a certificate or certificates (or evidence of book entry) representing the Shares in the name specified below:
___________________________________________
Holder’s Name
___________________________________________
___________________________________________
(Address)
3.
By its execution below and for the benefit of the Company, Holder hereby makes each of the representations and warranties set forth
in Section 6.1 of the Warrant To Purchase Stock as of the date hereof.
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Appendix 1 to Warrant to Purchase Stock
Exhibit 10.6
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION
AGREEMENT (this “Agreement”) is dated as of July 17, 2023 by and between Revelstone Capital Acquisition
Corp., a Delaware corporation (the “Company”), and the undersigned (the “Subscriber”).
RECITALS
WHEREAS, concurrent with the
execution of this Agreement, the Company, Revelstone Capital Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary
of the Company (“Merger Sub”) and Set Jet, Inc., a Nevada corporation (“SetJet”), will enter
into a Merger Agreement (the “Business Combination Agreement”) pursuant to which, among other things, the Merger Sub
will be merged with and into SetJet, with SetJet surviving as a wholly-owned subsidiary of the Company (the “Business Combination”),
on the terms and subject to the conditions set forth therein (the Business Combination, together with the other transactions contemplated
by the Business Combination Agreement, the “Transactions”); and
WHEREAS, in connection with
and contingent on the closing of the Transactions, the Company is offering and the Subscriber desires to subscribe for and purchase from
the Company (i) that number of shares of the Company’s Class A common stock, par value $0.0001 per share (the “Common
Stock”) set forth on the signature page attached hereto, on the terms provided herein and (ii) that number of Warrants
of the Company (the “Warrants” and collectively with such shares of Common Stock, the “Securities”),
exercisable to purchase shares of Common Stock, set forth on the signature page hereto, on the terms as provided herein.
AGREEMENT
NOW, THEREFORE, IN CONSIDERATION
of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Company and the Subscriber hereby agree as follows:
ARTICLE I
Purchase and Sale of Common Stock and Warrants
Section 1.1 Subscription.
Upon the following terms and conditions, the Company is offering to issue and sell and the Subscriber irrevocably agrees to subscribe
for and purchase the number of shares of Common Stock and Warrants set forth opposite the Subscriber’s name on the Subscriber’s
signature page hereto.
Section 1.2 Warrants.
The Company shall issue Warrants, in substantially the form attached hereto as Exhibit A, to the Subscriber in two tranches.
Subscriber will receive (i) 750,000 Warrants upon the Initial Closing (as defined below) each exercisable, for a period of 10 years
from the date of the Initial Closing, for one share of Common Stock at a price of $12.50 per share and (ii) 650,000 Warrants upon
the Additional Closing (as defined below) each exercisable for a period of 10 years from the date of the Additional Closing, for one share
of Common Stock at a price of $12.50 per share.
Section 1.3 Warrant
Shares. The Company has authorized and has reserved and covenants to continue to reserve, free of preemptive rights and other similar
contractual rights of stockholders, a number of shares of Common Stock equal to one hundred percent (100%) of the number of shares of
Common Stock as shall from time to time be sufficient to effect exercise of the Warrants then outstanding. Any shares of Common Stock
issuable upon exercise of the Warrants (and such shares when issued) are herein referred to as the “Warrant Shares”,
respectively. The shares of Common Stock and the Warrant Shares are sometimes collectively referred to as the “Shares”.
Section 1.4 Purchase
Price and Closing. Subject to the terms and conditions hereof, the Company agrees to issue and sell to the Subscriber and, in consideration
of and in express reliance upon the representations, warranties, covenants, terms and conditions of this Agreement, the Subscriber agrees
to purchase (i) at the Initial Closing, 1,500,000 shares of Common Stock at a price of $5.00 per share for an aggregate purchase
price of $7,500,000 (the “Initial Purchase Price”) and (ii) at the Additional Closing, 1,300,000 shares of Common
Stock at a price of $5.00 per share for an aggregate purchase price of $6,500,000 (the “Additional Purchase Price”
and together with the Initial Purchase Price, the “Purchase Price”). The initial closing (the “Initial Closing”)
of the purchase and sale of the shares of Common Stock and the Warrants to be acquired by the Subscriber from the Company under this Agreement
is contingent upon the substantially concurrent consummation of the Transactions, as provided by the Business Combination Agreement. Upon
written notice from (or on behalf of) the Company to the Subscriber (the “Closing Notice”) that the Company reasonably
expects all (i) conditions to the consummation of the Transactions to be satisfied and (ii) conditions set forth in Article IV
hereof and applicable to the Initial Closing shall have been fulfilled or waived in accordance herewith, on a date that is not less than
ten (10) days from the date of the Closing Notice, Subscriber shall deliver to the Company, at least two (2) business days prior
to the scheduled closing date specified in the Closing Notice, to be held in escrow until the date of the Initial Closing (the “Initial
Closing Date”), the Initial Purchase Price for the Securities by wire transfer of United States dollars in immediately available
funds to the account specified by the Company in the Closing Notice, which at the Closing will be released to the Company against delivery
by the Company promptly after the Closing to Subscriber of the Securities in book-entry form (or in certificated form if indicated by
Subscriber on Subscriber’s signature page hereto), free and clear of any liens or other restrictions (other than those arising
under this Agreement or applicable securities laws). At the Initial Closing, the Company shall deliver to the Subscriber written notice
from the Company’s transfer agent evidencing the issuance to Subscriber of the Securities on and as of the Closing Date. After the
Initial Closing, the Company and the Subscriber shall conduct an additional closing (the “Additional Closing” and,
together with the Initial Closing, a “Closing” and the date of the Additional Closing, the “Additional Closing
Date”) as soon as reasonable practicable following, and in any event within 3 Business Days of, the earlier of (i) the
date on which the Registration Statement registering all of the Registrable Securities is declared effective by the Commission and (ii) the
three month anniversary of the Initial Closing Date. At the Additional Closing, the Company shall deliver to the Subscriber written notice
from the Company’s transfer agent evidencing the issuance to Subscriber of the Securities on and as of the Closing Date. Subject
to all conditions to Closing having been satisfied or waived, each Closing shall take place at such time and place as the parties shall
agree (a “Closing Date”).
Section 1.5 Board
Appointment and Observer Rights. For so long as the Subscriber continues to hold 5% or more of the Company’s issued and
outstanding Common Stock, the Subscriber shall have the exclusive right to nominate one director
to the Company’s Board of Directors (“Board”) (a “Subscriber Director”) and an observer on
the Company’s Board (the “Board Observer”). Immediately prior to
the Initial Closing, the Company will appoint (i) a designee of Subscriber as a member of the Company’s Board, and (ii) a
second designee of Subscriber to be the Board Observer. The Company agrees to use
its best efforts to cause the
Subscriber Director to be nominated for election to the Company's Board at
each annual or special meeting of the stockholders of the Company at
which the general election of directors of the Company is to take place. A
Subscriber Director so elected shall serve for a term of one year and until his successor is elected and qualified. Any vacancy
in the position of a Subscriber Director may be filled only by the affirmative vote of the Subscriber. The Board Observer
shall be entitled to attend all meetings of the Board and any committees of the Board to receive all information provided to the members
of the Board or its committees (including minutes of previous meetings of the Board or such committees) in the same manner as the directors.
ARTICLE II
Representations and Warranties
Section 2.1 Representations
and Warranties of the Company and SetJet. The Company and SetJet hereby represent and warrant to the Subscriber, as of the date hereof
(except as provided in this Article II or set forth on the Schedule of Exceptions attached hereto with each numbered Schedule corresponding
to the section number herein), as follows:
(a) Organization,
Good Standing and Power. The Company, SetJet and each of its respective Subsidiaries (as defined below) is a corporation duly incorporated
or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has the requisite
corporate power to own, lease and operate its properties and assets and to conduct its business as it is now being conducted. Neither
the Company, SetJet nor any of its Subsidiaries is in violation nor default of any of the provisions of its respective certificate or
articles of incorporation, bylaws or other organizational or charter documents. Except as set forth on Schedule 2.1(a), each of
the Company and SetJet is duly qualified to do business and is in good standing in every jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification necessary except for any jurisdiction(s) (alone or in the aggregate)
in which the failure to be so qualified will not have a Material Adverse Effect (as defined in Section 2.1(g) hereof).
(b) Corporate
Power; Authority and Enforcement. The Company and SetJet each has the requisite corporate power and authority to enter into and perform
this Agreement, the Registration Rights Agreement in the form attached hereto as Exhibit B (the “Registration Rights
Agreement”), and the Warrants (collectively, the “Transaction Documents”), and to issue and sell the Shares
in accordance with the terms hereof. The execution, delivery and performance of the Transaction Documents by the Company and SetJet and
the consummation by it of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate
action, and no further consent or authorization of the Company, SetJet or its respective Board of Directors or stockholders is required.
Each of the Transaction Documents constitutes, or shall constitute when executed and delivered, a valid and binding obligation of the
Company and SetJet enforceable against the Company and SetJet in accordance with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating
to, or affecting generally the enforcement of, creditor’s rights and remedies or by other equitable principles of general application.
(c) Capitalization.
As of the date hereof, the authorized capital stock of the Company and the shares thereof currently issued and outstanding as of the date
hereof consists of 180,000,000 shares of Common Stock, 20,000,000 shares of Class B common stock, par value $0.0001 per share (the
“Class B Common Stock”) and 1,000,000 shares of preferred stock, par value $0.0001 per share (the “Preferred
Stock”), of which 16,500,000 shares of Common Stock are issued and outstanding as of the date hereof, 4,125,000 shares of Class B
Common Stock are issued and outstanding as of the date hereof and no shares of Preferred Stock are issued and outstanding as of the date
hereof. 14,500,000 shares of Common Stock are reserved for issuance upon the exercise of the Warrants. All (i) issued and outstanding
shares of Common Stock and Class B Common Stock have been duly authorized and validly issued, are fully paid and are not subject
to pre-emptive rights and (ii) outstanding Warrants have been duly authorized and validly issued, are fully paid and are not subject
to preemptive rights. No further approval or authorization of any stockholder of the Company or any Subsidiary, the Board of Directors
of the Company or others is required for the issuance and sale of the Securities. As of the date hereof and except as provided in the
Company’s organizational documents, as provided in documents filed as exhibits to the Commission Documents (defined below), as contemplated
by the Transaction Documents or as set forth on Schedule 2.1(c) hereto:
(i) other
than shares of the Company’s Class B Common Stock which are convertible into shares of the Company’s Common Stock, no
shares of capital stock of the Company are entitled to preemptive, conversion or other rights and there are no outstanding options, warrants,
scrip, rights to subscribe to, call or commitments of any character whatsoever relating to, or securities or rights convertible into,
any shares of capital stock of the Company;
(ii) other
than as set forth on Schedule 2.1(c)(ii) hereto, there are no contracts, commitments, understandings, or arrangements by which the
Company is or may become bound to issue additional shares of capital stock of the Company or options, securities or rights convertible
into shares of capital stock of the Company and there are no outstanding securities or instruments of the Company or any Subsidiary that
contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company
or any Subsidiary is or may become bound to redeem a security of the Company, or such Subsidiary;
(iii) other
than as set forth on Schedule 2.1(c)(iii) hereto, the Company is not a party to any agreement granting registration or anti-dilution
rights to any person with respect to any of its equity or debt securities; and
(iv) other
than the Parent Support Agreements and the Voting Agreement contemplated by the Business Combination Agreement, the Company is not a party
to, and it has no knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company.
The offer and sale of all capital stock, convertible
securities, rights, warrants, or options of the Company issued prior to each Closing complied in all material respects with all applicable
federal and state securities laws. The Company has furnished or made available to the Subscriber true and correct copies of the Company’s
Certificate of Incorporation, as amended and in effect on the date hereof (the “COI”), and the Company’s Bylaws,
as amended and in effect on the date hereof (the “Bylaws”). Except as restricted under applicable federal, state, local
or foreign laws and regulations, the Transaction Documents, or as set forth on Schedule 2.1(c), no written or oral contract, instrument,
agreement, commitment, obligation, plan or arrangement of the Company shall limit the payment of dividends on the Company’s Common
Stock. Assuming (i) no redemption of shares of Common Stock in connection with the Transactions as set forth in the Commission Documents,
(ii) consummation of each of the Transactions and the Initial Closing and the Additional Closing and (iii) no additional exercises
following the date hereof by the holders of the Company, Schedule 2.1(c)(iv) sets forth the following as of immediately following
the Additional Closing:
(A) the
aggregate number of issued and outstanding and the number of shares of Common Stock issuable upon conversion of all equity linked securities;
(B) the
aggregate number of shares of Common Stock issued and outstanding;
(C) the
aggregate number of shares of Common Stock issuable pursuant to outstanding rights to acquire Common Stock (other than options and warrants);
(D) with
respect to each warrant to purchase shares of capital stock of the Company issued and outstanding (x) the identity of the Person
(as defined in the Business Combination Agreement) to which such warrant was issued (unless held in street name), (y) the exercise
price of such warrant and (z) the number and type of shares to be issued on upon exercise thereof; and
(E) the
identity of each Person that is known by us to be the beneficial owner of five percent (5%) or more of the total number of shares of the
Company’s outstanding Class A Common Stock and Class B Common Stock and each such Person’s percentage of such beneficial
ownership.
(d) Issuance
of Securities. The shares of Common Stock and the Warrants to be issued at the Closing have been duly authorized by all necessary
corporate action and the shares of Common Stock, when paid for or issued in accordance with the terms hereof, will be validly issued and
outstanding, fully paid and nonassessable and, immediately after the Closing, the Subscriber will be the owner of all of such securities
and will have good and valid title to all of such securities, free and clear of all encumbrances, except as may be imposed under federal
and state securities laws. When the Warrant Shares are issued in accordance with the terms of the Warrants, such Warrant Shares will be
duly authorized by all necessary corporate action and validly issued and outstanding, fully paid and nonassessable, and the holders will
be entitled to all rights accorded to a holder of Common Stock and will be the record and beneficial owners of all of such securities
and have good and valid title to all of such securities, free and clear of all encumbrances.
(e) Subsidiaries.
Schedule 2.1(e) hereto sets forth each Subsidiary of the Company and SetJet, showing the jurisdiction of its incorporation
or organization and showing the percentage of ownership of each Subsidiary. There are no outstanding preemptive, conversion or other rights,
options, warrants or agreements granted or issued by or binding upon any Subsidiary for the purchase or acquisition of any shares of capital
stock of any Subsidiary or any other securities convertible into, exchangeable for or evidencing the rights to subscribe for any shares
of such capital stock. Neither the Company, SetJet nor any Subsidiary is subject to any obligation (contingent or otherwise) to repurchase
or otherwise acquire or retire any shares of the capital stock of any Subsidiary or any convertible securities, rights, warrants or options
of the type described in the preceding sentence. Except as filed as exhibits to the Commission Documents, neither the Company, SetJet
nor any Subsidiary is party to, nor has any knowledge of, any agreement restricting the voting or transfer of any shares of the capital
stock of any Subsidiary. For the purposes of this Agreement, “Subsidiary” shall mean any corporation or other entity
of which at least a majority of the securities or other ownership interests having ordinary voting power (absolutely or contingently)
for the election of directors or other persons performing similar functions are at the time owned directly or indirectly by the Company
and/or any of its other Subsidiaries.
(f) Commission
Documents, Financial Statements. For the two year period preceding the date hereof, the Company has filed all reports, schedules,
forms, statements and other documents required to be filed by it with the U.S. Securities and Exchange Commission (the “Commission”)
under the Securities Act and pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), including material filed pursuant to Section 13(a) or 15(d) of the Exchange Act (all of the foregoing
including filings incorporated by reference therein being referred to herein as the “Commission Documents”) and such
filings were made on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior
to the expiration of any such extension. At the time of the respective filings, the Form 10-K’s and the Form 10-Q’s
filed during the two year period preceding the date hereof complied in all material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission promulgated thereunder and other federal, state and local laws, rules and regulations
applicable to such documents. As of their respective dates, the Commission Documents complied in all material respects with the requirements
of the Securities Act and the Exchange Act, as applicable, and none of the Commission Documents, when filed, contained any untrue statement
of a material fact or omitted to state a 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 were made, not misleading. The financial statements of the Company included in the
Commission Documents (the “Financial Statements”) complied as of their respective filing dates as to form in all material
respects with applicable accounting requirements and the published rules and regulations of the Commission or other applicable rules and
regulations with respect thereto. The Financial Statements have been prepared in accordance with United States generally accepted accounting
principles (“GAAP”) applied on a consistent basis during the periods involved (except (i) as may be otherwise
indicated in the Financial Statements or the notes thereto or (ii) in the case of unaudited interim statements, to the extent they
may not include footnotes or may be condensed or summary statements), and fairly present in all material respects the consolidated financial
position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the
case of unaudited statements, to normal year-end audit adjustments).
(g) No
Material Adverse Effect. As of the date hereof, neither the Company, SetJet nor any Subsidiary has experienced or suffered any Material
Adverse Effect. For the purposes of this Agreement, “Material Adverse Effect” means any change, event, or occurrence,
individually or when aggregated with other changes, events, or occurrences, that has or would reasonably be expected to have a materially
adverse effect on the business, operations, properties, or financial condition of the Company, SetJet and their respective Subsidiaries,
taken as a whole, and/or any condition, circumstance, or situation that would prohibit or otherwise materially interfere with the ability
of the Company, SetJet or its respective Subsidiaries to perform any of its obligations under this Agreement or any other Transaction
Document in any material respect.
(h) No
Undisclosed Liabilities. Other than as disclosed on Schedule 2.1(h), to the knowledge of the Company or SetJet, neither the
Company, SetJet nor their respective Subsidiaries has any liabilities, obligations, claims or losses (whether liquidated or unliquidated,
secured or unsecured, absolute, accrued, contingent or otherwise) other than those incurred in the ordinary course of the Company’s
or SetJet’s business as of the date hereof, and those which, individually or in the aggregate, do not have a Material Adverse Effect.
(i) No
Undisclosed Events or Circumstances. As of the date hereof, except for the issuance of the Securities contemplated by this Agreement,
no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist
with respect to the Company, SetJet or any or its respective Subsidiaries or their respective businesses, properties, operations or financial
condition, which, under applicable law, rule or regulation, requires public disclosure or announcement by the Company or SetJet but
which has not been so publicly announced or disclosed.
(j) Indebtedness.
Schedule 2.1(j) sets forth all outstanding secured and unsecured Indebtedness of the Company and SetJet or any Subsidiaries
on a consolidated basis as of the date hereof, or for which the Company, SetJet or any Subsidiary have commitments that would require
disclosure as of the date hereof. For the purposes of this Agreement, “Indebtedness” shall mean (a) any liabilities
for borrowed money or amounts owed (other than trade accounts payable incurred in the ordinary course of business), (b) all guaranties,
endorsements and other contingent obligations in respect of Indebtedness of others, whether or not the same should be reflected in the
Company’s or SetJet’s consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments
for deposit or collection or similar transactions in the ordinary course of business; and (c) the present value of any lease payments
due under leases required to be capitalized in accordance with GAAP. Neither the Company, SetJet nor any Subsidiary is in default with
respect to any Indebtedness which, individually or in the aggregate, would have a Material Adverse Effect.
(k) Title
to Assets. Each of the Company, SetJet and any Subsidiary has good and marketable title to, or a valid leasehold interest in, (i) all
properties and assets purportedly owned or used by them as reflected in the Financial Statements, (ii) all properties and assets
necessary for the conduct of their business as currently conducted, and (iii) other than as disclosed on Schedule 2.1(k),
all of the real and personal property reflected in the Financial Statements free and clear of any Lien (as defined in Section 2.1(o) hereof).
All leases are valid and subsisting, in compliance and in full force and effect.
(l) Actions
Pending. As of the date hereof, and except as disclosed on Schedule 2.1(l), there is no action, suit, claim, investigation,
arbitration, alternate dispute resolution proceeding or any other proceeding pending or, to the knowledge of the Company or SetJet, threatened
against or involving the Company, SetJet or any Subsidiary before or by any court, arbitrator, governmental or administrative agency or
regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i) adversely
affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Securities or (ii) could,
if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company, SetJet
nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or
liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the
Company and SetJet, there is not pending or contemplated, any investigation by the Commission involving the Company, SetJet or any current
or former director or officer of the Company or SetJet. The Commission has not issued any stop order or other order suspending the effectiveness
of any registration statement filed by the Company, SetJet or any Subsidiary under the Exchange Act or the Securities Act. To the knowledge
of the Company, there are no outstanding orders, judgments, injunctions, awards or decrees of any court, arbitrator or governmental or
regulatory body against the Company or any Subsidiary or any of their respective executive officers or directors in their capacities as
such.
(m) Compliance
with Law. The Company, SetJet and each Subsidiary have all franchises, permits, licenses, consents and other governmental or regulatory
authorizations and approvals necessary for the conduct of their respective business as now being conducted by it unless the failure to
possess such franchises, permits, licenses, consents and other governmental or regulatory authorizations and approvals, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(n) No
Violation. The business of the Company, SetJet and each Subsidiary is not being conducted in violation of any federal, state, local
or foreign governmental laws, or rules, regulations and ordinances of any of any governmental entity, except for possible violations which
singularly or in the aggregate could not reasonably be expected to have a Material Adverse Effect. The Company or SetJet is not required
under federal, state, local or foreign law, rule or regulation to obtain any consent, authorization or order of, or make any filing
or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under the
Transaction Documents, or issue and sell the Shares and the Warrants in accordance with the terms hereof or thereof (other than (i) shareholder
approval for the Transactions, (ii) any consent, authorization or order that has been obtained as of the date hereof, (iii) any
filing or registration that has been made as of the date hereof or (iv) any filings which may be required to be made by the Company
with the Commission or state securities administrators subsequent to the Closing).
(o) No
Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and SetJet, the issuance of the Securities
and the consummation by the Company and SetJet of the transactions contemplated herein and therein do not and will not (i) conflict
with or violate any provision of the COI or Bylaws, (ii) conflict with, or constitute a default (or an event which with notice or
lapse of time or both would become a default) under, or give to others any rights of termination, amendment, anti-dilution or similar
adjustment, acceleration or cancellation of (with or without notice, lapse of time or both), any agreement, mortgage, deed of trust, indenture,
note, bond, license, lease agreement, instrument, obligation or other understand to which the Company or SetJet is a party or by which
it or its properties or assets are bound or affected, (iii) create or impose a lien, mortgage, security interest, pledge, charge,
encumbrance, right of first refusal, preemptive right or other restriction (collectively, “Lien”) of any nature on
any property of the Company or SetJet under any agreement or any commitment to which the Company or SetJet is a party or by which the
Company is bound or by which any of its respective properties or assets are bound, or (iv) result in a violation of any federal,
state, local or foreign statute, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations)
applicable to the Company, SetJet or any of its subsidiaries or by which any property or asset of the Company or any of its subsidiaries
are bound or affected, provided, however, that, excluded from clauses (ii), (iii) and (iv) are such conflicts,
defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a
Material Adverse Effect.
(p) Taxes.
Other than as disclosed on Schedule 2.1(p), the Company, SetJet and each Subsidiary, to the extent its applicable, has accurately
prepared and filed all federal, state and other tax returns required by law to be filed by it, has paid or made provisions for the payment
of all taxes shown to be due and all additional assessments, and adequate provisions have been and are reflected in the consolidated financial
statements of the Company and SetJet for all current taxes and other charges to which the Company, SetJet or any Subsidiary, if any, is
subject and which are not currently due and payable. None of the federal income tax returns of the Company have been audited by the Internal
Revenue Service. The Company and SetJet each has no knowledge of any additional assessments, adjustments or contingent tax liability (whether
federal, state or foreign) of any nature whatsoever, whether pending or threatened against the Company, SetJet or any Subsidiary for any
period, nor of any basis for any such assessment, adjustment or contingency. There are no unpaid taxes in any material amount claimed
to be due by the taxing authority of any jurisdiction, and the officers of the Company, SetJet or of any Subsidiary know of no basis for
any such claim.
(q) Certain
Fees. Except as set forth on Schedule 2.1(q) hereto, no brokers fees, finders fees or financial advisory fees or commissions
will be payable by the Company or SetJet with respect to the transactions contemplated by this Agreement and the other Transaction Documents
(the brokers listed on Schedule 2.1(q), the “Placement Agents”). The Subscriber shall have no obligation with
respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that
may be due in connection with the transactions contemplated by the Transaction Documents.
(r) Intellectual
Property. Each of the Company, SetJet and its respective Subsidiaries owns or has the lawful right to use all patents, trademarks,
domain names (whether or not registered) and any patentable improvements or copyrightable derivative works thereof, websites and intellectual
property rights relating thereto, service marks, trade names, copyrights, licenses and authorizations, if any, and all rights with respect
to the foregoing (the “Intellectual Property Rights”), if any, which are necessary for the conduct of their respective
business as now conducted without any conflict with the rights of others, except where the failure to so own or possess would not have
a Material Adverse Effect. As of the date hereof, none of, and neither the Company, SetJet nor any Subsidiary has received a notice (written
or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate
or be abandoned, within two (2) years from the date of this Agreement. As of the date hereof, neither the Company, SetJet nor any
Subsidiary has received, since the date of its inception, a written notice of a claim or otherwise has any knowledge that the Intellectual
Property Rights violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material
Adverse Effect. To the knowledge of the Company and SetJet, all such Intellectual Property Rights are enforceable and there is no existing
infringement by another Person of any of the Intellectual Property Rights. The Company, SetJet and their respective Subsidiaries have
taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where
failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. SetJet and its
Subsidiaries has invention/confidentiality agreements in place with all employees involved in creating intellectual property for SetJet
and its Subsidiaries.
(s) Books
and Records; Internal Accounting Controls. The books and records of the Company, SetJet and each Subsidiary accurately reflect in
all material respects the information relating to the business of the Company and the Subsidiaries. The Company, SetJet and the Subsidiaries
maintain a system of internal accounting controls sufficient to provide reasonable assurance 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 asset accountability, (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 Company and the
Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e))
for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed
by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness
of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most recently
filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most
recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in
the internal control over financial reporting (as such term is defined in the Exchange Act) that have materially affected, or is reasonably
likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.
(t) Material
Agreements. Any and all written or oral contracts, instruments, agreements, commitments, obligations, plans or arrangements, the Company,
SetJet and each Subsidiary is a party to, that a copy of which would be required to be filed with the Commission as an exhibit to a registration
statement on Form S-1 (collectively, the “Material Agreements”) if the Company, SetJet or any Subsidiary were
registering securities under the Securities Act of 1933, as amended (the “Securities Act”) has previously been or will
be publicly filed with the Commission in the Commission Documents. Each of the Company, SetJet and the Subsidiaries has in all material
respects performed all the obligations required to be performed by them to date under the foregoing agreements, have received no notice
of default and are not in default under any Material Agreement now in effect the result of which would cause a Material Adverse Effect.
(u) Transactions
with Affiliates. As of the date hereof and except as disclosed on Schedule 2.1(u), none of the officers or directors of the
Company, SetJet or any Subsidiary and, to the knowledge of the Company and SetJet, none of the employees of the Company, SetJet or any
Subsidiary is presently a party to any transaction with the Company, SetJet or any Subsidiary (other than for services as employees, officers
and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from providing for the borrowing of money from or lending of money to, or otherwise requiring
payments to or from any officer, director or such employee or, to the knowledge of the Company and SetJet, any entity in which any officer,
director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each
case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement
for expenses incurred on behalf of the Company or SetJet and (iii) other employee benefits, including stock option agreements under
any stock option plan of the Company or SetJet.
(v) Securities
Act of 1933. Assuming the accuracy of the representations of the Subscriber set forth in Section 2.2 hereof, the Company
has complied with all applicable federal and state securities laws in connection with the offer, issuance and sale of the Shares hereunder.
Neither the Company nor anyone acting on its behalf, directly or indirectly, has or will sell, offer to sell or solicit offers to buy
any of the shares of Common Stock, the Warrants or similar securities to, or solicit offers with respect thereto from, or enter into any
preliminary conversations or negotiations relating thereto with, any person, or has taken or will take any action so as to bring the issuance
and sale of any of the shares of Common Stock and the Warrants in violation of the registration provisions of the Securities Act and applicable
state securities laws, and neither the Company nor any of its affiliates, nor any person acting on its or their behalf, has engaged in
any form of general solicitation or general advertising (within the meaning of Rule 506 of Regulation D (“Regulation D”)
under the Securities Act) in connection with the offer or sale of any of the shares of Common Stock and the Warrants. The issuance and
sale of the Securities hereunder does not contravene the rules and regulations of the Trading Market.
(w) Governmental
Approvals. Except for the filing of any notice prior or subsequent to the Closing Date that may be required under applicable state
and/or federal securities laws (which if required, shall be filed on a timely basis), including the filing of a Form D and a registration
statement or statements pursuant to the Registration Rights Agreement, no authorization, consent, approval, license, exemption of, filing
or registration with any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign,
is or will be necessary for, or in connection with, the execution or delivery of the Shares, or for the performance by the Company of
its obligations under the Transaction Documents.
(x) Employees.
No labor dispute exists or, to the knowledge of the Company or SetJet, is imminent with respect to any of the employees of the Company
or SetJet or their respective Subsidiaries, which could reasonably be expected to result in a Material Adverse Effect. Except as disclosed
on Schedule 2.1(x), neither the Company, SetJet nor any Subsidiary has any collective bargaining arrangements covering any of its
employees. Schedule 2.1(x) sets forth a list of the employment contracts, agreements regarding proprietary information, non-competition
agreements, non-solicitation agreements, confidentiality agreement, or any other similar contract or restrictive covenant, relating to
the right of any officer, employee or consultant to be employed or engaged by the Company or SetJet as of the date hereof. As of the date
hereof, no officer, consultant or key employee of the Company, SetJet or any Subsidiary whose termination, either individually or in the
aggregate, would have a Material Adverse Effect, has terminated or, to the knowledge of the Company or SetJet, has any present intention
of terminating his or her employment or engagement with the Company, SetJet or any Subsidiary. Other than as disclosed on Schedule
2.1(x), the Company, SetJet and their respective Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws
and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where
the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(y) Absence
of Certain Developments. Except as provided in documents filed as exhibits to the Commission Documents, as contemplated by the Transaction
Documents or as disclosed on Schedule 2.1(y), as of the date hereof, neither the Company, SetJet nor the Subsidiaries have:
(i) issued
any stock, bonds or other corporate securities or any rights, options or warrants with respect thereto;
(ii) borrowed
any amount or incurred or become subject to any liabilities (absolute or contingent) except current liabilities incurred in the ordinary
course of business which are comparable in nature and amount to the current liabilities incurred in the ordinary course of business during
the comparable portion of its prior fiscal year, as adjusted to reflect the current nature and volume of the Company’s, SetJet’s
or such Subsidiary’s business;
(iii) discharged
or satisfied any Lien or paid any obligation or liability (absolute or contingent), other than current liabilities paid in the ordinary
course of business;
(iv) declared
or made any payment or distribution of cash or other property to stockholders with respect to its stock, or purchased or redeemed, or
made any agreements so to purchase or redeem, any shares of its capital stock;
(v) sold,
assigned or transferred any other tangible assets, or canceled any debts or claims, except in the ordinary course of business;
(vi) sold,
assigned or transferred any patent rights, trademarks, trade names, copyrights, trade secrets or other intangible assets or intellectual
property rights, or disclosed any proprietary confidential information to any person except to customers in the ordinary course of business
or to the Subscriber or its representatives;
(vii) suffered
any substantial losses or waived any rights of material value, whether or not in the ordinary course of business, or suffered the loss
of any material amount of prospective business;
(viii) made
any changes in employee compensation except in the ordinary course of business and consistent with past practices;
(ix) entered
into any other transaction other than in the ordinary course of business, or entered into any other material transaction, whether or not
in the ordinary course of business;
(x) made
charitable contributions or pledges in excess of $10,000;
(xi) suffered
any material damage, destruction or casualty loss, whether or not covered by insurance;
(xii) experienced
any material problems with labor or management in connection with the terms and conditions of their employment;
(xiii) effected
any two or more events of the foregoing kind which in the aggregate would be material to the Company or its subsidiaries; or
(xiv) entered
into an agreement, written or otherwise, to take any of the foregoing actions.
(z) Investment
Company Act. The Company is not, and is not an affiliate of, and immediately after receipt of payment for the Securities, will not
be or be an affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
(aa) No
Integrated Offering. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales of any security or solicited any offers to buy any security under circumstances that would cause the
offering of the Shares pursuant to this Agreement to be integrated with prior offerings by the Company for purposes of the Securities
Act which would prevent the Company from selling the Shares pursuant to Rule 506 under the Securities Act, nor will the Company or
any of its affiliates take any action or steps that would cause the offering of the Shares to be integrated with other offerings.
(bb) Sarbanes-Oxley
Act. The Company is in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act of 2002, and the
rules and regulations promulgated thereunder, that are effective and for which compliance by the Company is required as of the date
hereof.
(cc) No
Disqualification Events. With respect to the Securities to be offered and sold hereunder in reliance on Rule 506 under the Securities
Act, none of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company
participating in the offering hereunder, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities,
calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected
with the Company in any capacity at the time of sale (each, an “Issuer Covered Person” and, together, “Issuer
Covered Persons”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to
(viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or
(d)(3). The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event.
The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Subscriber
a copy of any disclosures provided thereunder.
(dd) Other
Covered Persons. Other than the Placement Agent, the Company is not aware of any person (other than any Issuer Covered Person) that
has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the sale of any Securities.
(ee) Notice
of Disqualification Events. The Company will notify the Subscriber and the Placement Agent in writing, prior to the Closing Date of
(i) any Disqualification Event relating to any Issuer Covered Person and (ii) any event that would, with the passage of time,
become a Disqualification Event relating to any Issuer Covered Person.
(ff) Registration
Rights. Other than the Subscriber and except as set forth on Schedule 2.1(ff), no Person has any right to cause the Company,
SetJet or any Subsidiary to effect the registration under the Securities Act of any securities of the Company, SetJet or any Subsidiaries.
(gg) Listing
and Maintenance Requirements. As of each Closing Date, the Common Stock is registered pursuant to Section 12(b) or 12(g) of
the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating
the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating
terminating such registration. As of each Closing Date, the Company has not, in the 12 months preceding the date hereof, received notice
from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance
with the listing or maintenance requirements of such Trading Market. As of each Closing Date, the Company is, and has no reason to believe
that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. As of each
Closing Date, the Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established
clearing corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing
corporation) in connection with such electronic transfer.
(hh) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company and
SetJet each hereby confirms that neither it nor any other Person acting on its behalf has provided the Subscriber or its agents or counsel
with any information that it believes constitutes or might constitute material, non-public information. The Company and SetJet each understands
and confirms that the Subscriber will rely on the foregoing representation in effecting transactions in securities of the Company. All
of the disclosure furnished by or on behalf of the Company and SetJet to the Subscriber regarding the Company, SetJet and their respective
Subsidiaries, their respective businesses and the transactions contemplated hereby, including the Schedule of Exceptions to this Agreement
and the other Transaction Documents, is true and correct and does not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made,
not misleading. The press releases disseminated by the Company and SetJet during the twelve months preceding the date of this Agreement
taken as a whole do not contain any untrue statement of a material fact or omit to state a 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 were made and when made, not
misleading. The Company and SetJet each acknowledges and agrees that no Subscriber makes or has made any representations or warranties
with respect to the transactions contemplated hereby other than those specifically set forth in Section 2.2 hereof.
(ii) No
General Solicitation. Neither the Company nor any Person acting on behalf of the Company has offered or sold any of the Securities
by any form of general solicitation or general advertising. The Company has offered the Securities for sale only to the Subscriber and
certain other “accredited investors” within the meaning of Rule 501 under the Securities Act.
(jj) Foreign
Corrupt Practices. Neither the Company, SetJet nor any Subsidiary, nor to the knowledge of the Company, SetJet or any Subsidiary,
any agent or other person acting on behalf of the Company, SetJet or any Subsidiary, has (i) directly or indirectly, used any funds
for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made
any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns
from corporate funds, (iii) failed to disclose fully any contribution made by the Company, SetJet or any Subsidiary (or made by any
person acting on its behalf of which the Company or SetJet is aware) which is in violation of law or (iv) violated in any material
respect any provision of FCPA.
(kk) Stock
Option Plans. Any stock option granted by the Company under the Company’s stock option plan, if any, was granted (i) in
accordance with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market
value of the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted
under the Company’s stock option plan, if any, has been backdated. The Company has not knowingly granted, and there is no and has
been no Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options
with, the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results
or prospects.
(ll) Cybersecurity.
(i)(x) There has been no material security breach or other compromise of or relating to any of the Company’s, SetJet’s
or any Subsidiary’s information technology and computer systems, networks, hardware, software, data (including the data of its respective
customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively,
“IT Systems and Data”) and (y) the Company, SetJet and their respective Subsidiaries have not been notified of,
and has no knowledge of any event or condition that would reasonably be expected to result in, any material security breach or other material
compromise to its IT Systems and Data; (ii) the Company, SetJet and their respective Subsidiaries are presently in compliance in
all material respects with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator
or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems
and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as
would not, individually or in the aggregate, have a Material Adverse Effect; (iii) the Company, SetJet and their respective Subsidiaries
have implemented and maintained commercially reasonable safeguards to maintain and protect its material confidential information and the
integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company, SetJet and the Subsidiaries
have implemented backup and disaster recovery technology consistent with industry standards and practices.
(mm) Office
of Foreign Assets Control. Neither the Company, SetJet nor any Subsidiary nor, to the Company’s or SetJet’s knowledge,
any director, officer, agent, employee or affiliate of the Company, SetJet or any Subsidiary is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(nn) Money
Laundering. The operations of the Company, SetJet and their respective Subsidiaries are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money
Laundering Laws”), and no Action by or before any court or governmental agency, authority or body or any arbitrator involving
the Company, SetJet or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or SetJet
or any Subsidiary, threatened.
(oo) Regulation
M Compliance. Neither the Company nor SetJet has not, and to its knowledge no one acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or paid any compensation for soliciting
purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase
any other securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Placement Agent
in connection with the placement of the Securities.
(pp) Acknowledgment
Regarding Subscriber’s Purchase of Securities. The Company and SetJet each acknowledges and agrees that the Subscriber is acting
solely in the capacity of an arm’s length Subscriber with respect to the Transaction Documents and the transactions contemplated
thereby. The Company and SetJet further each acknowledges that the Subscriber is not acting as a financial advisor or fiduciary of the
Company or SetJet (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and
any advice given by the Subscriber or any of its respective representatives or agents in connection with the Transaction Documents and
the transactions contemplated thereby is merely incidental to the Subscriber purchase of the Securities. The Company and SetJet each further
represents to Subscriber that the Company’s and SetJet’s decision to enter into this Agreement and the other Transaction Documents
has been based solely on the independent evaluation of the transactions contemplated hereby by the Company, SetJet and their respective
representatives.
(qq) Acknowledgment
Regarding Subscriber’s Trading Activity. Anything in this Agreement or elsewhere
herein to the contrary notwithstanding, it is understood and acknowledged by the Company and SetJet that: (i) the Subscriber has
not been asked by the Company or SetJet to agree, nor has the Subscriber agreed, to desist from purchasing or selling, long and/or short,
securities of the Company, or “derivative” securities based on securities issued by the Company or to hold the Securities
for any specified term, (ii) past or future open market or other transactions by the Subscriber, specifically including, without
limitation, Short Sales or “derivative” transactions, before or after the closing of this or future private placement transactions,
may negatively impact the market price of the Company’s publicly-traded securities, (iii) the Subscriber, and counter-parties
in “derivative” transactions to which the Subscriber is a party, directly or indirectly, may presently have a “short”
position in the Common Stock and (iv) Subscriber shall not be deemed to have any affiliation with or control over any arm’s
length counter-party in any “derivative” transaction. The Company and SetJet further
understands and acknowledges that (y) the Subscriber may engage in hedging activities at various times during the period that the
Securities are outstanding, including, without limitation, during the periods that the value of the Warrant Shares deliverable with respect
to Securities are being determined, and (z) such hedging activities (if any) could reduce the value of the existing stockholders'
equity interests in the Company at and after the time that the hedging activities are being conducted. The Company and SetJet each
acknowledges that such aforementioned hedging activities do not constitute a breach of any of the Transaction Documents.
Section 2.2 Representations
and Warranties of the Subscriber. The Subscriber hereby makes the following representations and warranties to the Company as of the
date hereof:
(a) Organization
and Good Standing of the Subscriber. If the Subscriber is an entity, such Subscriber is a corporation, partnership or limited liability
company duly incorporated or organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation
or organization.
(b) Authorization
and Power. Subscriber has the requisite power and authority to enter into and perform this Agreement and each of the other Transaction
Documents to which the Subscriber is a party and to purchase the shares of Common Stock and the Warrants, being sold to it hereunder.
The execution, delivery and performance of this Agreement and each of the other Transaction Documents to which the Subscriber is a party
and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate, partnership
or limited liability company action, and no further consent or authorization of such Subscriber or its Board of Directors, stockholders,
partners, members, or managers, as the case may be, is required. This Agreement and each of the other Transaction Documents to which such
Subscriber is a party has been duly authorized, executed and delivered by such Subscriber and constitutes, or shall constitute when executed
and delivered, a valid and binding obligation of such Subscriber enforceable against such Subscriber in accordance with the terms hereof.
(c) No
Conflicts. The execution, delivery and performance of this Agreement and each of the other Transaction Documents to which such Subscriber
is a party and the consummation by such Subscriber of the transactions contemplated hereby and thereby or relating hereto do not and will
not (i) result in a violation of such Subscriber’s charter documents, bylaws, operating agreement, partnership agreement or
other organizational documents or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of any agreement,
indenture or instrument or obligation to which such Subscriber is a party or by which its properties or assets are bound, or result in
a violation of any law, rule, or regulation, or any order, judgment or decree of any court or governmental agency applicable to such Subscriber
or its properties (except for such conflicts, defaults and violations as would not, individually or in the aggregate, have a material
adverse effect on such Subscriber). Such Subscriber is not required to obtain any consent, authorization or order of, or make any filing
or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this
Agreement or any other Transaction Document to which such Subscriber is a party or to purchase the shares of Common Stock or acquire the
Warrants in accordance with the terms hereof, provided, that for purposes of the representation made in this sentence, such Subscriber
is assuming and relying upon the accuracy of the relevant representations and agreements of the Company herein.
(d) Status
of Subscriber. The Subscriber is a “qualified institutional buyer” (as defined in Rule 144A under the Securities
Act) or is an “accredited investor” as defined in Regulation D under the Securities Act, in each case, satisfying the
applicable requirements set forth on Exhibit C attached hereto and made part hereof. Such Subscriber is not required to be
registered as a broker-dealer under Section 15 of the Exchange Act and such Subscriber is not a broker-dealer, nor an affiliate of
a broker-dealer.
(e) Acquisition
for Investment. Subscriber is acquiring the shares of Common Stock and the Warrants solely for its own account for the purpose of
investment and not with a view to or for sale in connection with a distribution. The Subscriber does not have a present intention to sell
the shares of Common Stock or the Warrants, nor a present arrangement (whether or not legally binding) or intention to effect any distribution
of the shares of Common Stock or the Warrants to or through any person or entity; provided, however, that by making the
representations herein, such Subscriber does not agree to hold the shares of Common Stock or the Warrants for any minimum or other specific
term and reserves the right to dispose of the shares of Common Stock or the Warrants at any time in accordance with federal and state
securities laws applicable to such disposition. Subscriber acknowledges that it is able to bear the financial risks associated with an
investment in the shares of Common Stock and the Warrants and that it has been given full access to such records of the Company and to
the officers of the Company and received such information as it has deemed necessary or appropriate to conduct its due diligence investigation
and has sufficient knowledge and experience in investing in companies similar to the Company in terms of the Company’s stage of
development so as to be able to evaluate the risks and merits of its investment in the Company.
(f) ERISA.
Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute
or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986,
as amended, or any applicable similar law.
(g) Opportunities
for Additional Information. Subscriber acknowledges that it has had the opportunity to (i) ask questions of and receive answers
from, or obtain additional information from, the executive officers of the Company concerning the financial and other affairs of the Company
concerning the terms and conditions of the offering of the Securities and the merits and risks of investing in the Securities; (ii) access
to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient
to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses
or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment.
(h) No
General Solicitation. Subscriber acknowledges that to such Subscriber’s knowledge, the Shares were not offered to such Subscriber
by means of any form of general or public solicitation or general advertising, or publicly disseminated advertisements or sales literature,
including (i) any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media, or
broadcast over television or radio, or (ii) any seminar or meeting to which such Subscriber was invited by any of the foregoing means
of communications.
(i) Rule 144.
Such Subscriber understands that the Shares must be held indefinitely unless such Shares are registered under the Securities Act or an
exemption from registration is available. Such Subscriber acknowledges that such Subscriber is familiar with Rule 144, of the rules and
regulations of the Commission, as amended, promulgated pursuant to the Securities Act (“Rule 144”), and that such
person has been advised that Rule 144 permits resales only under certain circumstances. Such Subscriber understands that to the extent
that Rule 144 is not available, such Subscriber will be unable to sell any Shares without either registration under the Securities
Act or the existence of another exemption from such registration requirement.
(j) General.
Such Subscriber understands that the Shares are being offered and sold in reliance on a transactional exemption from the registration
requirements of federal and state securities laws and the Company is relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of such Subscriber set forth herein in order to determine the applicability of such exemptions
and the suitability of such Subscriber to acquire the Shares.
(k) No
Conflicts with Sanctions Laws. Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the
List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the
Sectoral Sanctions Identification List, each of which is administered by OFAC or in any Executive Order issued by the President of the
United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program,
(ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated,
established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or
instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a
Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or
providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby,
such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents
that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”),
as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the
“BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies
and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to
the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed
for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with
OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly
through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber
and used to purchase the Securities were legally derived.
(l) Confidential
Information. Subscriber agrees that it and its employees, agents and representatives will keep confidential and will not disclose,
divulge or use (other than for purposes of monitoring its investment in the Company) any confidential information which such Subscriber
may obtain from the Company pursuant to financial statements, reports and other materials submitted by the Company to such Subscriber
pursuant to this Agreement, unless such information is known to the public through no fault of such Subscriber or his or its employees
or representatives; provided, however, that a Subscriber may disclose such information (i) to its attorneys, accountants and other
professionals in connection with their representation of such Subscriber in connection with such Subscriber’s investment in the
Company, (ii) to any prospective permitted transferee of the Shares, so long as the prospective transferee agrees to be bound by
the provisions of this Section 2.2(l), or (iii) to any general partner or affiliate of such Subscriber.
The Company and SetJet
acknowledge and agree that the representations contained in this Section shall not modify, amend or affect such Subscriber’s
right to rely on the Company’s and SetJet’s representations and warranties contained in this Agreement or any representations
and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection
with this Agreement or the consummation of the transactions contemplated hereby.
ARTICLE III
Covenants
Except as otherwise expressly
set forth below, the Company covenants with the Subscriber as set forth below, which covenants are for the benefit of the Subscriber and
its permitted assignees (as defined herein).
Section 3.1 Securities
Compliance. The Company shall notify the Commission in accordance with its rules and regulations, of the transactions contemplated
by any of the Transaction Documents, including filing a Form D with respect to the shares of Common Stock, Warrants, the Warrant
Shares as required under Regulation D and applicable “blue sky” laws, and shall take all other necessary action and
proceedings as may be required and permitted by applicable law, rule and regulation, for the legal and valid issuance of the shares
of Common Stock, the Warrants, and the Warrant Shares to the Subscriber or subsequent holders.
Section 3.2 Compliance
with Laws. Through the Initial Closing, the Company and SetJet shall comply, and cause each or its respective Subsidiary to comply
in all respects, with all applicable laws, rules, regulations and orders, except for such non-compliance which singularly or in the aggregate
could not reasonably be expected to have a Material Adverse Effect.
Section 3.3 Reservation
of Shares. So long as any of the Warrants remain outstanding, the Company shall take all action necessary to at all times have authorized,
and reserved for the purpose of issuance, no less than one hundred percent (100%) of the aggregate number of shares of Common Stock needed
to provide for the issuance of the Warrant Shares.
Section 3.4 Reporting
Status. So long as a Subscriber beneficially owns any of the Shares, the Company shall timely file all reports required to be filed
with the Commission pursuant to the Exchange Act as if it was required to do so, and the Company shall not cease to file reports under
the Exchange Act notwithstanding its status as a “voluntary” filer.
Section 3.5 Disclosure
of Transaction. The Company shall (a) by the 9:29 a.m. (New York City time) on the Trading Day (as defined in the Business
Combination Agreement) immediately following the date hereof (the “Disclosure Time”), issue a press release disclosing the
material terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction
Documents as exhibits thereto, with the Commission within the time required by the Exchange Act. From and after the time that the Company
files a proxy statement/prospectus on Form S-4 for the Business Combination, which includes Q2 2023 financial statements of both
the Company and SetJet (the “S-4”) with the U.S. Securities and Exchange Commission, the Company represents to the Subscriber
that it shall have publicly disclosed all material, non-public information delivered to any of the Subscriber by the Company or any of
its Subsidiaries, or any of their respective officers, directors, employees, Affiliates or agents, including without limitation, the Placement
Agent, in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the filing of such S-4,
the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral,
between the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees, Affiliates or agents,
including, without limitation, the Placement Agent, on the one hand, and any of the Subscriber or any of their Affiliates on the other
hand, shall terminate and be of no further force or effect. The Company understands and confirms that the Subscriber shall be relying
on the foregoing covenant in effecting transactions in securities of the Company. The Company and the Subscriber shall consult with each
other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor the Subscriber
shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with respect
to any press release of the Subscriber, or without the prior consent of the Subscriber, with respect to any press release of the Company,
which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing
party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing,
the Company shall not publicly disclose the name of the Subscriber, or include the name of the Subscriber in any filing with the Commission
or any regulatory agency or Trading Market, without the prior written consent of such Subscriber, except (a) as required by federal
securities law in connection with (i) any registration statement contemplated by the Registration Rights Agreement and (ii) the
filing of final Transaction Documents with the Commission and (b) to the extent such disclosure is required by law or Trading Market
regulations, in which case the Company shall provide the Subscriber with prior notice of such disclosure permitted under this clause (b) and
reasonably cooperate with such Subscriber regarding such disclosure. “Business Day” means any day that, in New York,
New York, is neither a legal holiday nor a day on which commercial banking institutions are generally authorized or required by law or
regulation to close.
Section 3.6 Disclosure
of Material Information. The Company, SetJet and the Subsidiaries covenant and agree that neither it nor any other person acting on
its or their behalf has provided or, from and after the filing of the Disclosure Time, will provide the Subscriber or its agents or counsel
with any information that the Company believes constitutes material non-public information (other than with respect to the transactions
contemplated by this Agreement), unless prior thereto such Subscriber shall have executed a specific written agreement regarding the confidentiality
and use of such information. To the extent that the Company, SetJet any of its Subsidiaries, or any of their respective officers, director,
agents, employees or Affiliates delivers any material, non-public information to a Subscriber without such Subscriber’s consent,
the Company and SetJet hereby covenants and agrees that such Subscriber shall not have any duty of confidentiality to the Company, SetJet
any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates, or agents, including, without limitation,
the Placement Agent, or a duty to the Company, SetJet any of its Subsidiaries or any of their respective officers, directors, employees,
Affiliates or agents, including, without limitation, the Placement Agent, not to trade on the basis of, such material, non-public information,
provided that the Subscriber shall remain subject to applicable law. To the extent that any notice provided pursuant to any Transaction
Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously
with the delivery of such notice file such notice with the Commission pursuant to a Current Report on Form 8-K. The Company understands
and confirms that Subscriber shall be relying on the foregoing covenants in effecting transactions in securities of the Company. At the
time of the filing of the Press Release, no Subscriber shall be in possession of any material, nonpublic information received from the
Company, any of its subsidiaries or any of its respective officers, directors, employees or agents, that is not disclosed in the Press
Release. The Company shall not disclose the identity of the Subscriber in any filing with the Commission except as required by the rules and
regulations of the Commission thereunder.
Section 3.7 Pledge
of Securities. The Company acknowledges and agrees that the Shares may be pledged by a Subscriber in connection with a bona fide
margin agreement or other loan or financing arrangement that is secured by the Common Stock. The pledge of Common Stock shall not be deemed
to be a transfer, sale or assignment of the Common Stock hereunder, and no Subscriber effecting a pledge of Common Stock shall be required
to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction
Document; provided, that a Subscriber and its pledgee shall be required to comply with the provisions of Article V hereof
in order to effect a sale, transfer or assignment of Common Stock to such pledgee. At a Subscriber’s expense, the Company hereby
agrees to execute and deliver such documentation as a pledgee of the Common Stock may reasonably request in connection with a pledge of
the Common Stock to such pledgee by a Subscriber, in accordance with applicable laws relating to the transfer of the securities.
Section 3.8 Public
Information. At any time during the period commencing from the six (6) month anniversary of the date hereof and ending at such
time that all of the Securities may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and
otherwise without restriction or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy the
current public information requirement under Rule 144(c) or (ii) has ever been an issuer described in Rule 144 (i)(1)(i) or
becomes an issuer in the future, and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) (a “Public
Information Failure”) then, in addition to such Subscriber’s other available remedies, the Company shall pay to a Subscriber,
in cash, as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the Securities,
an amount in cash equal to one percent (1.0%) of the aggregate Subscription Amount of such Subscriber’s Securities on the day of
a Public Information Failure and on every thirtieth (30th) day (pro-rated for periods totaling less than thirty days) thereafter
until the earlier of (a) the date such Public Information Failure is cured and (b) such time that such public information is
no longer required for the Subscriber to transfer the Securities pursuant to Rule 144. The payments to which a Subscriber
shall be entitled pursuant to this Section 3.8 are referred to herein as “Public Information Failure Payments.”
Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public
Information Failure Payments are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise
to the Public Information Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments
in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.5% per month (prorated for partial months)
until paid in full. Nothing herein shall limit such Subscriber’s right to pursue actual damages for the Public Information Failure,
and such Subscriber shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree
of specific performance and//or injunctive relief.
Section 3.9 Exercise
Procedures. Each of the form of Notice of Exercise included in the Warrants set forth the totality of the procedures required of the
Subscriber in order to exercise the Warrants. Without limiting the preceding sentences, no ink-original Notice of Exercise or Notice of
Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise form
be required in order to exercise the Warrants. No additional legal opinion, other information or instructions shall be required of the
Subscriber to exercise their Warrants. The Company shall honor exercises of the Warrants and shall deliver Warrant Shares in accordance
with the terms, conditions and time periods set forth in the Transaction Documents.
Section 3.10 Shareholder
Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that the Subscriber
is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that the Subscriber
could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents
or under any other agreement between the Company and the Subscriber.
Section 3.11 Use
of Proceeds. Except as set forth on Schedule 3.11 attached hereto, the Company shall use the net proceeds from the sale of
the Securities hereunder for working capital purposes and shall not use such proceeds: (a) for the satisfaction of any portion of
the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s business and prior practices),
(b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation
or (d) in violation of FCPA or OFAC regulations.
Section 3.12 Variable
Rate Transactions. Except as set forth on Schedule 3.12, from the date hereof until such time as no Purchaser holds any of
the Warrants, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any
of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction.
“Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities
that are convertible into, exchangeable or exercisable for, or include the right to receive, additional shares of Common Stock either
(A) at a conversion price, exercise price or exchange rate or other price that is based upon, and/or varies with, the trading prices
of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities or (B) with
a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or
equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company
or the market for the Common Stock or (ii) enters into, or effects a transaction under, any agreement, including, but not limited
to, an equity line of credit or an “at-the-market offering”, whereby the Company may issue securities at a future determined
price. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall
be in addition to any right to collect damages.
Section 3.13 Form D;
Blue Sky Filings. The Company agrees to timely file a Form D with respect to the Securities as required under Regulation D and
to provide a copy thereof, promptly upon request of any Purchaser. The Company shall take such action as the Company shall reasonably
determine is necessary in order to obtain an exemption for, or to qualify the Securities for, sale to the Purchasers at the Closing under
applicable securities or “Blue Sky” laws of the states of the United States, and shall provide evidence of such actions
promptly upon request of any Purchaser.
Section 3.14 Reservation
and Listing of Securities.
(a) If,
on any date, the number of authorized but unissued (and otherwise unreserved) shares of Common Stock is less than the Required Minimum
on such date, then the Board of Directors shall use commercially reasonable efforts to amend the Company’s certificate or articles
of incorporation to increase the number of authorized but unissued shares of Common Stock to at least the Required Minimum at such time,
as soon as reasonably practicable after such date.
(b) The
Company shall, if applicable: (i) in the time and manner required by the principal Trading Market, prepare and file with such Trading
Market an additional shares listing application covering a number of shares of Common Stock at least equal to the Required Minimum on
the date of such application, (ii) take all steps necessary to cause such shares of Common Stock to be approved for listing or quotation
on such Trading Market as soon as possible thereafter, (iii) provide to the Subscriber evidence of such listing or quotation and
(iv) maintain the listing or quotation of such Common Stock on any date at least equal to the Required Minimum on such date on such
Trading Market or another Trading Market. The Company agrees to maintain the eligibility of the Common Stock for electronic transfer through
the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of fees to
the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer. In addition,
the Company shall include in the proxy for the Merger a proposal for the purpose of obtaining Shareholder Approval, with the recommendation
of the Company’s Board of Directors that such proposal be approved, and the Company shall solicit proxies from its shareholders
in connection therewith in the same manner as all other management proposals in such proxy statement and all management-appointed proxyholders
shall vote their proxies in favor of such proposal. The Company shall use its reasonable best efforts to obtain such Shareholder Approval.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for
trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market,
the New York Stock Exchange, OTCQB or the OTCQX (or any successors to any of the foregoing). “Shareholder Approval”
means such approval as may be required by the applicable rules and regulations of the Nasdaq Stock Market (or any successor entity)
from the shareholders of the Company with respect to the transactions contemplated by the Transaction Documents, including the issuance
of all of the Underlying Shares in excess of 19.99% of the issued and outstanding Common Stock on the Closing Date.
ARTICLE IV
CONDITIONS
Section 4.1 Conditions
Precedent to the Obligation of the Company to Sell the Shares. The obligation hereunder of the Company to issue and sell the shares
of Common Stock and the Warrants to the Subscriber is subject to the satisfaction or waiver, at or before each Closing, of each of the
conditions set forth below. These conditions are for the Company’s sole benefit and may be waived by the Company at any time in
its sole discretion.
(a) Accuracy
of Subscriber’s Representations and Warranties. Each of the representations and warranties of the Subscriber in this Agreement
and the other Transaction Documents that are qualified by materiality or by reference to any Material Adverse Effect shall be true and
correct in all respects, and all other representations and warranties shall be true and correct in all material respects, as of the date
when made and as of the Closing Date as though made at that time, except for representations and warranties that are expressly made as
of a particular date, which shall be true and correct in all respects as of such date.
(b) Performance
by the Subscriber. The Subscriber shall have performed, satisfied and complied in all respects with all covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied with by such Subscriber at or prior to the Closing.
(c) No
Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated
or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions
contemplated by this Agreement.
(d) Delivery
of Purchase Price. The Purchase Price for each of the shares of Common Stock being paid for in cash shall have been delivered to the
Company pursuant to the wire instructions attached hereto as Exhibit D.
(e) Delivery
of Transaction Documents. The Transaction Documents to which the Subscriber is a party shall have been duly executed and delivered
by the Subscriber to the Company.
Section 4.2 Conditions
Precedent to the Obligation of the Subscriber to Purchase the Shares. The obligation hereunder of the Subscriber to acquire and pay
for the Shares is subject to the satisfaction or waiver, at or before each Closing, of each of the conditions set forth below. These conditions
are for the Subscriber’s sole benefit and may be waived by the Subscriber at any time in its sole discretion.
(a) Accuracy
of the Company’s Representations and Warranties. Each of the representations and warranties of the Company in this Agreement
and the other Transaction Documents that are qualified by materiality or by reference to any Material Adverse Effect shall be true and
correct in all respects, and all other representations and warranties shall be true and correct in all material respects, as of the date
when made and as of the Initial Closing Date as though made at that time, except for representations and warranties that are expressly
made as of a particular date, which shall be true and correct in all respects as of such date.
(b) Performance
by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing.
(c) No
Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated
or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions
contemplated by this Agreement.
(d) No
Proceedings or Litigation. No action, suit or proceeding before any arbitrator or any governmental authority shall have been commenced,
and no investigation by any governmental authority shall have been threatened, against the Company or any Subsidiary, or any of the officers,
directors or affiliates of the Company or any Subsidiary seeking to restrain, prevent or change the transactions contemplated by this
Agreement, or seeking damages in connection with such transactions.
(e) Registration
Rights Agreement. On the Closing Date, the Company shall have executed and delivered the Registration Rights Agreement to the Subscriber.
(f) Certificates.
Promptly following each Closing, the Company shall deliver to the Subscriber the certificates for the shares of Common Stock and the Warrants
being acquired by the Subscriber at the Closing to such address set forth next to the Subscriber’s name on the signature pages hereto
with respect to such Closing.
(g) Resolutions.
The Board of Directors of the Company shall have adopted resolutions consistent with Section 2.1(b) hereof in a form
reasonably acceptable to such Subscriber (the “Resolutions”).
(h) Officer’s
Certificate. The Company shall have delivered to the Subscriber a certificate of an executive officer of the Company, dated as of
the Closing Date, confirming the accuracy of the Company’s representations, warranties and covenants as of the Initial Closing Date
and confirming the compliance by the Company with the conditions precedent set forth in this Section 4.2 as of the Closing
Date.
(i) Consummation
of the Transactions. All conditions precedent to the closing of the Transactions set forth in the Business Combination Agreement,
including the approval of the Company’s stockholders, shall have been satisfied (as determined by the parties to the Business Combination
Agreement) or waived (other than those conditions which, by their nature, are to be satisfied at the closing of the Transactions pursuant
to the Business Combination Agreement), and the closing of the Transactions shall be scheduled to occur substantially concurrently with
or immediately following the Initial Closing; and
(j) No
Suspension from Trading. No suspension of the qualification of the Securities for offering or sale or trading in any jurisdiction,
and no suspension or removal from listing of the Common Stock on Nasdaq Global Market (“Nasdaq”), and no initiation
or threatening of any proceedings for any of such purposes or delisting, shall have occurred, and the Securities shall be approved for
listing on Nasdaq, subject to official notice of issuance.
(k) Opinion
of Counsel. On each Closing Date, counsel to the Company have delivered a legal opinion substantially in the form attached hereto
as Exhibit E.
ARTICLE V
Transfer Restrictions
Section 5.1 The
Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Securities
other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Subscriber or in connection
with a pledge as contemplated in Section 3.6 and Section 5.3 the Company may require the transferor thereof to
provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance
of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such
transferred Securities under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by
the terms of this Agreement and the Registration Rights Agreement and shall have the rights and obligations of a Subscriber under this
Agreement and the Registration Rights Agreement.
Section 5.2 The
Subscriber agree to the imprinting, so long as is required by this Section 5.2, of a legend on any of the Securities in the
forms set forth in the Warrants.
Section 5.3 The
Company acknowledges and agrees that a Subscriber may from time to time pledge pursuant to a bona fide margin agreement with a registered
broker-dealer or grant a security interest in some or all of the Securities to a financial institution that is an “accredited
investor” as defined in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement,
such Subscriber may transfer pledged or secured Securities to the pledgees or secured parties. Such a pledge or transfer would not be
subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in
connection therewith. Further, no notice shall be required of such pledge. At the appropriate Subscriber’s expense, the Company
will execute and deliver such reasonable documentation as a pledgee or secured party of Securities may reasonably request in connection
with a pledge or transfer of the Securities.
Section 5.4 Certificates
evidencing the Underlying Shares shall not contain any legend (including the legend set forth in Section 5.2 hereof): (i) while
a registration statement (including the Registration Statement) covering the resale of such security is effective under the Securities
Act, (ii) following any sale of such Underlying Shares pursuant to Rule 144 (assuming cashless exercise of the Warrants), (iii) if
such Underlying Shares are eligible for sale under Rule 144 (assuming cashless exercise of the Warrants), without the requirement
for the Company to be in compliance with the current public information required under Rule 144 as to such Underlying Shares and
without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities
Act (including judicial interpretations and pronouncements issued by the staff of the Commission). The Company shall cause its counsel
to issue a legal opinion to the Transfer Agent or the Subscriber promptly after each Closing Date if required by the Transfer Agent to
effect the removal of the legend hereunder, or if requested by a Subscriber, respectively. If all or any portion of a Warrant is exercised
at a time when there is an effective registration statement to cover the resale of the Underlying Shares, or if such Underlying Shares
may be sold under Rule 144 (assuming cashless exercise of the Warrants) as to such Underlying Shares and without volume or manner-of-sale
restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including judicial interpretations
and pronouncements issued by the staff of the Commission) then such Underlying Shares shall be issued free of all legends. The Company
agrees that following the Initial Closing Date or at such time as such legend is no longer required under this Section 5.4,
it will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard
Settlement Period (as defined below) following the delivery by a Subscriber to the Company or the Transfer Agent of a certificate representing
Underlying Shares, as applicable, issued with a restrictive legend (such date, the “Legend Removal Date”), deliver
or cause to be delivered to such Subscriber a certificate representing such shares that is free from all restrictive and other legends.
The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer
set forth in this Section 5. Certificates for Underlying Shares subject to legend removal hereunder shall be transmitted by
the Transfer Agent to the Subscriber by crediting the account of the Subscriber’s prime broker with the Depository Trust Company
System as directed by such Subscriber. As used herein, “Standard Settlement Period” means the standard settlement period,
expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on
the date of delivery of a certificate representing Underlying Shares, as applicable, issued with a restrictive legend.
Section 5.5 In
addition to such Subscriber’s other available remedies, the Company shall pay to a Subscriber, in cash, (i) as liquidated damages
and not as a penalty, for each $1,000 of Underlying Shares (based on the VWAP of the Common Stock on the date such Securities are submitted
to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c), $10 per Trading Day
(increasing to $20 per Trading Day five (5) Trading Days after the Legend Removal Date) for each Trading Day after the Legend Removal
Date until such certificate is delivered without a legend and (ii) if the Company fails to (a) issue and deliver (or cause to
be delivered) to a Subscriber by the Legend Removal Date a certificate representing the Securities so delivered to the Company by such
Subscriber that is free from all restrictive and other legends and (b) if after the Legend Removal Date such Subscriber purchases
(in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Subscriber of all or
any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the
number of shares of Common Stock that such Subscriber anticipated receiving from the Company without any restrictive legend, then, an
amount equal to the excess of such Subscriber’s total purchase price (including brokerage commissions and other out-of-pocket expenses,
if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any)I over the
product of (A) such number of Underlying Shares that the Company was required to deliver to such Subscriber by the Legend Removal
Date multiplied by (B) the lowest closing sale price of the Common Stock on any Trading Day during the period commencing on the date
of the delivery by such Subscriber to the Company of the applicable Underlying Shares (as the case may be) and ending on the date of such
delivery and payment under this clause (ii).
Section 5.6 The
Subscriber agrees with the Company that such Subscriber will sell any Securities pursuant to either the registration requirements of the
Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if Securities are sold
pursuant to a Registration Statement, they will be sold in compliance with the plan of distribution set forth in, and acknowledges that
the removal of the restrictive legend from certificates representing Securities as set forth in this Section 5.6 is predicated
upon the Company’s reliance upon this understanding.
ARTICLE VI
Indemnification
Subject
to the provisions of this Section, the Company will indemnify and hold the Subscriber and its directors, officers, shareholders, members,
partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding
a lack of such title or any other title), each Person who controls such Subscriber (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any
other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title)
of such controlling persons (each, a “Subscriber Party”) harmless from any and all losses, liabilities, obligations,
claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’
fees and costs of investigation that any such Subscriber Party may suffer or incur as a result of or relating to (a) any breach of
any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents
or (b) any action instituted against the Subscriber Parties in any capacity, or any of them or their respective Affiliates, by any
stockholder of the Company who is not an Affiliate of such Subscriber Party, with respect to any of the transactions contemplated by the
Transaction Documents (unless such action is solely based upon a material breach of such Subscriber Party’s representations, warranties
or covenants under the Transaction Documents or any agreements or understandings such Subscriber Party may have with any such stockholder
or any violations by such Subscriber Party of state or federal securities laws or any conduct by such Subscriber Party which is finally
judicially determined to constitute fraud, gross negligence or willful misconduct). If any action shall be brought against any Subscriber
Party in respect of which indemnity may be sought pursuant to this Agreement, such Subscriber Party shall promptly notify the Company
in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable
to the Subscriber Party. Any Subscriber Party shall have the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the expense of such Subscriber Party except to the extent that
(i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable
period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel,
a material conflict on any material issue between the position of the Company and the position of such Subscriber Party, in which case
the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not
be liable to any Subscriber Party under this Agreement (y) for any settlement by a Subscriber Party effected without the Company’s
prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss,
claim, damage or liability is attributable to any Subscriber Party’s breach of any of the representations, warranties, covenants
or agreements made by such Subscriber Party in this Agreement or in the other Transaction Documents. The indemnification required by this
Section shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills
are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of
any Subscriber Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
Section 6.1 General
Indemnity. The Company agrees to indemnify and hold harmless the Subscriber (and its respective directors, officers, managers, partners,
members, shareholders, affiliates, agents, successors and assigns) from and against any and all losses, liabilities, deficiencies, costs,
damages and expenses (including, without limitation, reasonable attorneys’ fees, charges and disbursements) incurred by the Subscriber
as a result of any breach of the representations, warranties or covenants made by the Company herein. The Subscriber agrees to indemnify
and hold harmless the Company and its directors, officers, affiliates, agents, successors and assigns from and against any and all losses,
liabilities, deficiencies, costs, damages and expenses (including, without limitation, reasonable attorneys’ fees, charges and disbursements)
incurred by the Company as a result of any breach of the representations, warranties or covenants made by the Subscriber herein. The maximum
aggregate liability of the Subscriber pursuant to its indemnification obligations under this Article VI shall not exceed the portion
of the Purchase Price paid by such Subscriber hereunder. In no event shall any “Indemnified Party” (as defined below)
be entitled to recover consequential or punitive damages resulting from a breach or violation of this Agreement.
Section 6.2 Indemnification
Procedure. Any party entitled to indemnification under this Article VI (an “Indemnified Party”) will give
written notice to the indemnifying party of any matters giving rise to a claim for indemnification; provided, that the failure
of any party entitled to indemnification hereunder to give notice as provided herein shall not relieve the indemnifying party of its obligations
under this Article VI except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. In
case any action, proceeding or claim is brought against an Indemnified Party in respect of which indemnification is sought hereunder,
the indemnifying party shall be entitled to participate in and, unless in the reasonable judgment of the Indemnified Party a conflict
of interest between it and the indemnifying party may exist with respect of such action, proceeding or claim, to assume the defense thereof
with counsel reasonably satisfactory to the Indemnified Party. In the event that the indemnifying party advises an Indemnified Party that
it will contest such a claim for indemnification hereunder, or fails, within thirty (30) days of receipt of any indemnification notice
to notify, in writing, such person of its election to defend, settle or compromise, at its sole cost and expense, any action, proceeding
or claim (or discontinues its defense at any time after it commences such defense), then the Indemnified Party may, at its option, defend,
settle or otherwise compromise or pay such action or claim. In any event, unless and until the indemnifying party elects in writing to
assume and does so assume the defense of any such claim, proceeding or action, the Indemnified Party’s costs and expenses arising
out of the defense, settlement or compromise of any such action, claim or proceeding shall be losses subject to indemnification hereunder.
The Indemnified Party shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action
or claim by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Indemnified
Party, which relates to such action or claim. The indemnifying party shall keep the Indemnified Party fully apprised at all times as to
the status of the defense or any settlement negotiations with respect thereto. If the indemnifying party elects to defend any such action
or claim, then the Indemnified Party shall be entitled to participate in such defense with counsel of its choice at its sole cost and
expense. The indemnifying party shall not be liable for any settlement of any action, claim or proceeding effected without its prior written
consent, provided, however, that the indemnifying party shall be liable for any settlement if the indemnifying party is
advised of the settlement but fails to respond to the settlement within thirty (30) days of receipt of such notification. Notwithstanding
anything in this Article VI to the contrary, the indemnifying party shall not, without the Indemnified Party’s prior written
consent, settle or compromise any claim or consent to entry of any judgment in respect thereof which imposes any future obligation on
the Indemnified Party or which does not include, as an unconditional term thereof, the giving by the claimant or the plaintiff to the
Indemnified Party of a release from all liability in respect of such claim. The indemnity agreements contained herein shall be in addition
to (a) any cause of action or similar rights of the Indemnified Party against the indemnifying party or others, and (b) any
liabilities the indemnifying party may be subject to pursuant to the law.
ARTICLE VII
Miscellaneous
Section 7.1 Termination.
This Agreement may be terminated by the Subscriber by written notice to the Company, if the Initial Closing has not been consummated on
or before December 31, 2023, provided, however, that no such termination will affect the right of any party to sue
for any breach by any other party (or parties).
Section 7.2 Fees
and Expenses. Except as otherwise set forth in this Agreement and the other Transaction Documents, each party shall pay the fees and
expenses of its advisors, counsel, accountants and other experts, if any, and all other expenses, incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including,
without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any conversion or
exercise notice delivered by a Subscriber), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities
to the Subscriber.
Section 7.3 Specific
Enforcement; Consent to Jurisdiction.
(a) The
Company and the Subscriber acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement
or the other Transaction Documents were not performed in accordance with their specific terms or were otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or injunctions to prevent or cure breaches of the provisions of this Agreement
or the other Transaction Documents and to enforce specifically the terms and provisions hereof or thereof, this being in addition to any
other remedy to which any of them may be entitled by law or equity.
(b) Each
of the Company and the Subscriber (i) hereby irrevocably submits to the jurisdiction of the United States District Court sitting
in the Southern District of New York and the courts of the State of New York located in New York county for the purposes of any suit,
action or proceeding arising out of or relating to this Agreement or any of the other Transaction Documents or the transactions contemplated
hereby or thereby and (ii) hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of such court, that the suit, action or proceeding is brought in an inconvenient forum or that
the venue of the suit, action or proceeding is improper. Each of the Company and the Subscriber consents to process being served in any
such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing in this Section 7.3 shall affect or limit any right to serve process in any
other manner permitted by law. Each party hereby irrevocably waives personal service of process and consents to process being served in
any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted by law.
Section 7.4 Entire
Agreement; Amendment. This Agreement and the other Transaction Documents contains the entire understanding and agreement of the parties
with respect to the matters covered hereby and, except as specifically set forth herein or in the Transaction Documents, neither the Company
nor the Subscriber makes any representations, warranty, covenant or undertaking with respect to such matters and they supersede all prior
understandings and agreements with respect to said subject matter, all of which are merged herein. No provision of this Agreement nor
any of the Transaction Documents may be waived or amended other than by a written instrument signed by the Company and the Subscriber,
and no provision hereof may be waived other than by a written instrument signed by the party against whom enforcement of any such waiver
is sought. No such amendment shall be effective to the extent that it applies to less than all of the holders of the shares of Common
Stock then outstanding. No consideration shall be offered or paid to any person to amend or consent to a waiver or modification of any
provision of any of the Transaction Documents unless the same consideration is also offered to all of the parties to the Transaction Documents.
Section 7.5 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communication is delivered via
electronic mail (“Email”) at the Email address set forth on the signature pages attached hereto at or prior to
5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or
communication is delivered via Email at the Email address set forth on the signature pages attached hereto on a day that is not a
Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following
the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom
such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached
hereto.
Section 7.6 Waivers.
No waiver by any party of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be
a continuing waiver in the future or a waiver of any other provisions, condition or requirement hereof, nor shall any delay or omission
of any party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter.
Section 7.7 Headings.
The section headings contained in this Agreement (including, without limitation, section headings and headings in the exhibits and schedules)
are inserted for reference purposes only and shall not affect in any way the meaning, construction or interpretation of this Agreement.
Any reference to the masculine, feminine, or neuter gender shall be a reference to such other gender as is appropriate. References to
the singular shall include the plural and vice versa.
Section 7.8 Successors
and Assigns. This Agreement may not be assigned by a party hereto without the prior written consent of the Company or the Subscriber,
as applicable, provided, however, that, subject to federal and state securities laws and as otherwise provided in the Transaction
Documents, Subscriber may assign its rights and delegate its duties hereunder in whole or in part (a) to a third party acquiring
all or substantially all of its shares of Common Stock or Warrants in a private transaction or (b) to an affiliate, in each case,
without the prior written consent of the Company after notice duly given by such Subscriber to the Company provided, that no such
assignment or obligation shall affect the obligations of such Subscriber hereunder and that such assignee agrees in writing to be bound,
with respect to the transferred securities, by the provisions hereof that apply to the Subscriber. The provisions of this Agreement shall
inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any
rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
Section 7.9 No
Third Party Beneficiaries. The Placement Agent shall be the third party beneficiary of the representations and warranties of the Company
in Section 2.1 and the representations and warranties of the Subscriber in Section 2.2. Other than in respect
of the foregoing, this Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns
and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
Section 7.10 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal Actions concerning the interpretations, enforcement and defense of the transactions contemplated
by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors,
officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting
in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in
the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any Action, any claim that it is not personally subject to the jurisdiction of any such court, that
such Action is improper or is an inconvenient venue for such Action. Each party hereby irrevocably waives personal service of process
and consents to process being served in any such Action by mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any other manner permitted by law. If any party shall commence an Action to enforce any provisions of the
Transaction Documents, then, the prevailing party in such Action shall be reimbursed by the non-prevailing party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action.
Section 7.11 Survival.
The representations and warranties of the Company and the Subscriber shall survive the execution and delivery hereof and the Closing hereunder
for a period of one (1) year following the Closing Date.
Section 7.12 Counterparts.
This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and, all
of which taken together shall constitute one and the same Agreement and shall become effective when counterparts have been signed by each
party and delivered to the other parties hereto, it being understood that all parties need not sign the same counterpart. In the event
that any signature is delivered by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such “.pdf”
signature page were an original thereof.
Section 7.13 Publicity.
The Company agrees that it will not disclose, and will not include in any public announcement, the name of the Subscriber without the
consent of the Subscriber unless and until such disclosure is required by law or applicable regulation, and then only to the extent of
such requirement.
Section 7.14 Severability.
The provisions of this Agreement and the Transaction Documents are severable and, in the event that any court of competent jurisdiction
shall determine that any one or more of the provisions or part of the provisions contained in this Agreement or the Transaction Documents
shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision or part of a provision of this Agreement or the Transaction Documents and such provision shall be
reformed and construed as if such invalid or illegal or unenforceable provision, or part of such provision, had never been contained herein,
so that such provisions would be valid, legal and enforceable to the maximum extent possible.
Section 7.15 Trust
Account Waiver. Subscriber acknowledges that the Company is a blank check company with the powers and privileges to effect a merger,
asset acquisition, reorganization or similar business combination involving the Company and one or more businesses or assets. Subscriber
further acknowledges that, as described in the final prospectus of the Company, dated as of December 16, 2021 (the “Prospectus”)
available at www.sec.gov, substantially all of the Company’s assets consist of the cash proceeds of Company’s initial public
offering (including overallotment securities sold by the Company’s underwriter thereafter) and private placements of its securities,
and substantially all of those proceeds have been deposited in a trust account (the “Trust Account”) for the benefit
of Company, its public stockholders and the underwriters of Company’s initial public offering. Except with respect to interest earned
on the funds held in the Trust Account that may be released to Company to pay its tax obligations, if any, the cash in the Trust Account
may be disbursed only for the purposes set forth in the Prospectus. For and in consideration of the Company entering into this Agreement,
the receipt and sufficiency of which are hereby acknowledged, Subscriber, on behalf of itself and its representatives, hereby irrevocably
waives any and all right, title and interest, or any claim of any kind they now have or may have in the future, in or to any monies held
in the Trust Account or distributions therefrom to the Company’s public stockholders, and agrees not to seek recourse against the
Trust Account for any claims in connection with, as a result of, or arising out of, this Agreement or the transactions contemplated hereby;
provided, however, that nothing in this Section 7.15 (x) shall serve to limit or prohibit Subscriber’s right
to pursue a claim against Company for legal relief against assets held outside the Trust Account (other than distributions to the Company’s
public stockholders), for specific performance or other equitable relief, (y) shall serve to limit or prohibit any claims that Subscriber
may have in the future against Company’s assets or funds that are not held in the Trust Account (including any funds that have been
released from the Trust Account (other than distributions to the Company’s public stockholders) and any assets that have been purchased
or acquired with any such funds) or (z) shall be deemed to limit the Subscriber’s right, title, interest or claim to the Trust
Account by virtue of such Subscriber’s record or beneficial ownership of securities of the Company acquired by any means other than
pursuant to this Agreement, including but not limited to any redemption right with respect to any such securities of the Company.
Section 7.16 Further
Assurances. From and after the date of this Agreement, upon the request of the Subscriber or the Company, each of the Company and
the Subscriber shall execute and deliver such instrument, documents and other writings as may be reasonably necessary or desirable to
confirm and carry out and to effectuate fully the intent and purposes of this Agreement, the shares of Common Stock, the Warrants, the
Warrant Shares, the Registration Rights Agreement and the other Transaction Documents.
Section 7.17 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of
the other Transaction Documents, whenever the Subscriber exercises a right, election, demand or option under a Transaction Document and
the Company does not timely perform its related obligations within the periods therein provided, then such Subscriber may rescind or withdraw,
in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part
without prejudice to its future actions and rights; provided, however, that, in the case of a rescission of an exercise
of a Warrant, the applicable Subscriber shall be required to return any shares of Common Stock subject to any such rescinded conversion
or exercise notice concurrently with the return to such Subscriber of the aggregate exercise price paid to the Company for such shares
and the restoration of such Purchaser’s right to acquire such shares pursuant to such Subscriber’s Warrant (including, issuance
of a replacement warrant certificate evidencing such restored right).
Section 7.18 Replacement
of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of
and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable
third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
Section 7.19 Liquidated
Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents
is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have been
paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due
and payable shall have been canceled.
Section 7.20 Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or
granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
Section 7.21 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH
KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY
AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have caused this Subscription Agreement to be duly executed by their respective authorized signatories
as of the date first indicated above.
| Revelstone Capital
Acquisition Corp. | | Address for Notice: |
| | | |
| By: |
/s/ Morgan Callagy | | Revelstone Capital Acquisition Corp. |
| |
Name: |
Morgan Callagy | | 14350 Myford Road |
| |
Title: |
Co-Chief Executive Officer | | Irvine, CA 92606 |
| |
| | Attention: Morgan Callagy, Co-CEO; or |
| By: |
/s/ Daniel Neukomm | | Daniel Neukomm, Co-CEO |
| |
Name: |
Daniel Neukomm | | Telephone No.: (949) 751-7518 |
| |
Title: |
Co-Chief Executive Officer | | Email: morgan@revelstonecap.com and |
| |
|
| | daniel@revelstonecap.com |
| | | |
| With a copy to (which
shall not constitute notice): | | |
| Loeb & Loeb LLP | | |
| 345 Park Avenue | | |
| New York, NY 10154 | | |
| Attention: Alex Weniger-Araujo, Esq. | | |
| Telephone No.: 212-407-4063 | | |
| Facsimile No.: 212-818-1184 | | |
| Email: aweniger@loeb.com | | |
[REMAINDER OF PAGE INTENTIONALLY
LEFT BLANK
SIGNATURE PAGE FOR SUBSCRIBER FOLLOWS]
[SUBSCRIBER SIGNATURE
PAGE TO SUBSCRIPTION AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Subscription Agreement to be duly executed by their respective authorized signatories
as of the date first indicated above.
| Name of Subscriber: |
Coleman Asset Management Group Ltd. |
| |
| Signature of Authorized Signatory of Subscriber: |
/s/ Matt McClean |
| |
| Name of Authorized Signatory: |
Matt McClean |
| |
| Title of Authorized Signatory: |
Chief Executive Officer |
| |
| Email Address of Authorized Signatory: |
|
| |
| Facsimile Number of Authorized Signatory: |
|
| |
| Address for Notice to Subscriber: |
| |
| |
| |
| Address for Delivery of Securities to Subscriber (if not same as address for notice): |
| |
| |
| Subscription Amount: $ |
|
| |
| Shares of Common Stock: |
|
| |
| Warrant Shares: |
|
| |
| Subscriber’s Tax I.D.: |
|
EXHIBIT A TO THE
SUBSCRIPTION AGREEMENT
FORM OF WARRANT
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE
AND, EXCEPT AS SET FORTH IN SECTION 7.1 BELOW, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS AND UNTIL REGISTERED
UNDER SAID ACT AND LAWS OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY, SUCH OFFER, SALE,
PLEDGE OR OTHER TRANSFER IS EXEMPT FROM SUCH REGISTRATION.
WARRANT TO PURCHASE STOCK
This WARRANT TO PURCHASE STOCK
(as amended and in effect from time to time, this “Warrant”) is issued as of the issue date as set forth below (the
“Issue Date”) by Set Jet, Inc., a Nevada corporation (the “Company”) to the holder as set forth
below (the “Holder”). The parties agree as follows:
Section 1. WARRANT
PROVISIONS.
| Warrant Section |
Warrant Provision |
| Recitals – “Issue Date” |
[__], 2023 |
| Recitals – “Company” |
Set Jet, Inc., a Nevada corporation |
| Recitals – “Holder” |
|
| Section 2.1 – “Class” |
Common Stock, $0.0001 par value per share. |
| Section 2.1 – “Exercise Price” |
$12.50 per Share. |
| Section 2.2 – “Shares” |
400,000 |
| “Expiration Date” |
[__], 2033. |
Section 2. RIGHT
TO PURCHASE SHARES.
2.1 Grant
of Right. For good and valuable consideration, the Company hereby grants Holder the right, and Holder is entitled, to purchase from
the Company up to the number (as determined pursuant to Section 2.2 below) of fully paid and non-assessable shares (each, a “Share”)
of the class as set forth above (the “Class”), at a purchase price per Share as set forth above (the “Exercise
Price”), subject to the provisions and upon the terms and conditions set forth in this Warrant.
2.2 Number
of Shares. This Warrant shall be exercisable for the number of Shares of the Class as set forth above (as may be adjusted from
time to time in accordance with the provisions of this Warrant, the “Shares”).
Section 3. EXERCISE.
3.1 Method
of Exercise. Holder may exercise this Warrant in whole or in part at any time and from time to time after the Issuance Date but prior
to the Expiration Date or earlier termination of this Warrant, by delivering to the Company the original of this Warrant together with
a duly executed Notice of Exercise in substantially the form attached hereto as Appendix 1 and a check, wire transfer of same-day
funds (to an account designated by the Company), or other form of payment acceptable to the Company for the aggregate Exercise Price for
the Shares being purchased. Notwithstanding any contrary provision herein, to the extent that the original of this Warrant is an electronic
original, in no event shall an original ink-signed paper copy of this Warrant be required for any exercise of Holder’s rights hereunder,
nor shall this Warrant or any physical copy hereof be required to be physically surrendered at the time of any exercise.
3.2 Delivery
of Certificate and New Warrant. Within a reasonable time after Holder exercises this Warrant in the manner set forth in Section 3.1,
the Company shall deliver to Holder a certificate (or, in the case of uncertificated securities, provide notice of book entry) representing
the Shares issued to Holder upon such exercise and, if this Warrant has not been fully exercised and has not expired, a new warrant of
like tenor representing the Shares not so acquired (or surrendered in payment of the aggregate Exercise Price).
3.3 Replacement
of Warrant.
(a) Paper
Original Warrant. To the extent that the original of this Warrant is a paper original, on receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of loss, theft or destruction, on delivery
of an indemnity agreement reasonably satisfactory in form, substance and amount to the Company or, in the case of mutilation, on surrender
of this Warrant to the Company for cancellation, the Company shall, within a reasonable time, execute and deliver to Holder, in lieu of
this Warrant, a new warrant of like tenor and amount.
(b) Electronic
Original Warrant. To the extent that the original of this Warrant is an electronic original, if at any time this Warrant is rejected
by any person (including, but not limited to, paying or escrow agents) or any such person fails to comply with the terms of this Warrant
based on this Warrant being presented to such person as an electronic record or a printout hereof, or any signature hereto being in electronic
form, the Company shall, promptly upon Holder’s request and without indemnity, execute and deliver to Holder, in lieu of electronic
original versions of this Warrant, a new warrant of like tenor and amount in paper form with original ink signatures.
3.4 Treatment
of Warrant Upon Acquisition of Company.
(a) Acquisition.
“Acquisition” means any transaction or series of related transactions involving: (i) the sale, lease, exclusive
license, or other disposition of all or substantially all of the assets of the Company; (ii) any merger or consolidation of the Company
into or with another person or entity (other than a merger or consolidation effected exclusively to change the Company’s domicile),
or any other corporate reorganization, in which the stockholders of the Company in their capacity as such immediately prior to such merger,
consolidation or reorganization, own less than a majority of the Company’s (or the surviving or successor entity’s) outstanding
voting power immediately after such merger, consolidation or reorganization; or (iii) any sale or other transfer by the stockholders
of the Company of shares representing at least a majority of the Company’s then-total outstanding combined voting power. For the
avoidance of doubt, “Acquisition” shall not include any sale and issuance by the Company of shares of its capital stock or
of securities or instruments exercisable for or convertible into, or otherwise representing the right to acquire, shares of its capital
stock to one or more investors for cash in a transaction or series of related transactions the primary purpose of which is a bona fide
equity financing of the Company (an “Equity Financing”).
(b) Treatment
of Warrant in Acquisition. Upon the closing of any Acquisition, the acquiring, surviving or successor entity shall assume this Warrant
and the Company’s obligations hereunder, and this Warrant shall thereafter be exercisable for the same securities and/or other property
as would have been paid for the Shares issuable upon exercise of the unexercised portion of this Warrant as if such Shares were outstanding
on and as of the closing of such Acquisition, at an aggregate Exercise Price equal to the aggregate Exercise Price in effect as of immediately
prior to such closing, all subject to further adjustment from time to time thereafter in accordance with the provisions of this Warrant.
Section 4. CERTAIN
ADJUSTMENTS TO THE SHARES, CLASS AND EXERCISE PRICE.
4.1 Stock
Dividends, Splits, Etc. If the Company (i) declares or pays a dividend or distribution on the outstanding shares of the Class payable
in additional shares of the Class (including fractional shares, subject to Section 4.3 below); or (ii) subdivides the
outstanding shares of the Class by reclassification or otherwise into a greater number of shares, the number of Shares purchasable
hereunder shall be proportionately increased, even if such number would include fractional shares, and the Exercise Price shall be proportionately
decreased. If the outstanding shares of the Class are combined or consolidated, by reclassification or otherwise, into a lesser number
of shares, the Exercise Price shall be proportionately increased and the number of Shares shall be proportionately decreased, even if
such number would include fractional shares.
4.2 Reclassification,
Exchange, Combination or Substitution. Upon any event whereby all of the outstanding shares of the Class are reclassified, exchanged,
combined, substituted, or replaced for, into, with or by Company securities of a different class and/or series, then from and after the
consummation of such event, “Class” shall mean such securities and this Warrant will be exercisable for the number of such
securities that Holder would have received had the Shares been outstanding on and as of the consummation of such event, at an aggregate
Exercise Price equal to the aggregate Exercise Price in effect as of immediately prior to such event, all subject to further adjustment
thereafter from time to time in accordance with the provisions of this Warrant. The provisions of this Section 4.2 shall similarly
apply to successive reclassifications, exchanges, combinations, substitutions, replacements or other similar events.
4.3 No
Fractional Share. No fractional Share shall be issued upon exercise of this Warrant, and the number of Shares to be issued shall be
rounded down to the nearest whole Share. If a fractional Share interest arises upon any exercise of this Warrant, the Company shall eliminate
such fractional Share interest by paying Holder in cash an amount equal to (a) such fractional interest, multiplied by (b) (i) the
fair market value of a full Share, less (ii) the then-effective Exercise Price (the “Fractional Share Value”),
unless Holder otherwise elects, in its sole discretion, to waive such payment. Notwithstanding any contrary provision herein, if this
Warrant becomes exercisable for a fractional Share interest at any time or from time to time prior to the exercise in full of this Warrant,
and the Company eliminates such fractional Share interest prior to any exercise of this Warrant, then the then-effective Exercise Price
shall be reduced by an amount equal to the Fractional Share Value, unless Holder otherwise elects, in its sole discretion, to waive such
reduction.
4.4 Certificate
as to Adjustments. Within a reasonable time following each adjustment of the Exercise Price, Class and/or number of Shares pursuant
to the terms of this Warrant, the Company, at its expense, shall deliver a certificate of its Chief Financial Officer or other authorized
officer to Holder setting forth the adjustments to the Exercise Price, Class and/or number of Shares and the facts upon which such
adjustments are based. The Company shall, at any time and from time to time within a reasonable time following Holder’s written
request and at the Company’s expense, furnish Holder with a certificate of its Chief Financial Officer or other authorized officer
setting forth the then-current Exercise Price, Class and number of Shares and the computations or other determinations thereof.
Section 5. REPRESENTATIONS
AND COVENANTS OF THE COMPANY.
5.1 Representations
and Warranties. The Company represents and warrants to, and agrees with, Holder that all Shares which may be issued upon the exercise
of this Warrant, shall, upon issuance, be duly authorized, validly issued, fully paid and non-assessable, and free of any liens and encumbrances
except for restrictions on transfer provided for herein or under the Company’s Certificate of Incorporation or Bylaws, each as amended
and in effect from time to time (the “Charter Documents”), or applicable federal and state securities laws. The Company
covenants that it shall at all times cause to be reserved and kept available out of its authorized and unissued capital stock such number
of shares of the Class and other securities as will be sufficient to permit the exercise in full of this Warrant.
5.2 Certain
Company Information. The Company will provide such information requested by Holder from time to time, within a reasonable time following
each such request, that is reasonably necessary to enable Holder to comply with Holder’s accounting or reporting requirements.
Section 6. REPRESENTATIONS
AND COVENANTS OF HOLDER.
Holder represents and warrants
to, and agrees with, the Company as follows:
6.1 Investment
Representations.
(a) Purchase
for Own Account. This Warrant and the Shares to be acquired upon exercise hereof are being acquired for investment for Holder’s
account, not as a nominee or agent, and not with a view to the public resale or distribution within the meaning of the Act. Holder also
represents that it has not been formed for the specific purpose of acquiring this Warrant or the Shares.
(b) Disclosure
of Information. Holder is aware of the Company’s business affairs and financial condition and has received or has had full access
to all the information it considers necessary or appropriate to make an informed investment decision with respect to the acquisition of
this Warrant and its underlying securities. Holder further has had an opportunity to ask questions of and receive answers from the Company
regarding the terms and conditions of the offering of this Warrant and its underlying securities and to obtain additional information
(to the extent the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify
any information furnished to Holder or to which Holder has access.
(c) Investment
Experience. Holder understands that the purchase of this Warrant and its underlying securities involves substantial risk. Holder has
experience as an investor in securities of companies in the development stage and acknowledges that Holder can bear the economic risk
of such Holder’s investment in this Warrant and its underlying securities for an indefinite period of time, and has such knowledge
and experience in financial or business matters that Holder is capable of evaluating the merits and risks of its investment in this Warrant
and its underlying securities and/or has a preexisting personal or business relationship with the Company and certain of its officers,
directors or controlling persons of a nature and duration that enables Holder to be aware of the character, business acumen and financial
circumstances of such persons.
(d) Accredited
Investor Status. Holder is an “accredited investor” within the meaning of Regulation D promulgated under the Act.
(e) The
Act. Holder understands that this Warrant and the Shares issuable upon exercise hereof have not been registered under the Act or registered
or qualified under the securities laws of any state, and are issued in reliance upon specific exemptions therefrom, which exemptions depend
upon, among other things, the bona fide nature of the Holder’s investment intent as expressed herein. Holder understands that the
Company is under no obligation to so register or qualify this Warrant, the Shares or such other securities. Holder understands that this
Warrant and the Shares issued upon any exercise hereof are “restricted securities” under applicable federal and state securities
laws and must be held indefinitely unless subsequently registered under the Act and registered or qualified under applicable state securities
laws, or unless exemptions from such registration and qualification are otherwise available. Holder is aware of the provisions of Rule 144
promulgated under the Act.
6.2 No
Stockholder Rights. Without limiting any provision of this Warrant, Holder agrees that as a Holder of this Warrant it will not have
any rights (including, but not limited to, voting rights) as a stockholder of the Company with respect to the Shares issuable hereunder
unless and until the exercise of this Warrant and then only with respect to the Shares issued on such exercise.
Section 7. MISCELLANEOUS.
7.1 Compliance
with Securities Laws on Transfer. This Warrant and the Shares issued upon exercise hereof may not be transferred or assigned in whole
or in part except in compliance with applicable federal and state securities laws by the transferor and the transferee (including, without
limitation, the delivery of investment representation letters and legal opinions reasonably satisfactory to the Company, as reasonably
requested by the Company).
7.2 Notices.
All notices and other communications hereunder from the Company to the Holder, or vice versa, shall be deemed delivered and effective
(i) when given personally, (ii) on the third (3rd) Business Day after being mailed by first-class registered or certified
mail, postage prepaid, (iii) upon actual receipt if given by electronic mail and such receipt is confirmed in writing by the recipient,
or (iv) on the first Business Day following delivery to a reliable overnight courier service, courier fee prepaid, in any case at
such address as may have been furnished to the Company or Holder, as the case may be, in writing by the Company or Holder. All notices
to Holder shall be addressed as follows until the Company receives notice of a change of address in connection with a transfer or otherwise:
[●]
[Address]
[Address]
Attention: [●]
Telephone: [●]
Email: [●]
All notices to the Company
shall be addressed as follows until Holder receives notice of a change in address:
Set Jet, Inc.
15011 N 75th Street
Scottsdale, AZ 85260
Attn: Thomas P. Smith
Telephone: (408) 264-6500
Email: tom@setjet.com
With a copy that shall not constitute notice to:
Snell & Wilmer L.L.P.
One East Washington Street
Suite 2700
Phoenix, AZ 85004-2556
Attn: Daniel Mahoney
Telephone: (602) 382-6206
Email: dmahoney@swlaw.com
7.3 Amendment
and Waiver. Notwithstanding any contrary provision herein, this Warrant may be amended and any provision hereof waived (either generally
or in a particular instance and either retroactively or prospectively) only by an instrument in writing signed by Holder and any party
against which enforcement of such amendment or waiver is sought.
7.4 Counterparts;
Electronic Signatures; Status as Certificated Security. This Warrant may be executed by one or more of the parties hereto in any number
of separate counterparts, all of which together shall constitute one and the same instrument. The Company, Holder and any other party
hereto may execute this Warrant by electronic means and each party hereto recognizes and accepts the use of electronic signatures and
the keeping of records in electronic form by any other party hereto in connection with the execution and storage hereof. To the extent
that this Warrant or any agreement subject to the terms hereof or any amendment hereto is executed, recorded or delivered electronically,
it shall be binding to the same extent as though it had been executed on paper with an original ink signature, as provided under applicable
law, including, without limitation, any state law based on the Uniform Electronic Transactions Act. The fact that this Warrant is executed,
signed, stored or delivered electronically shall not prevent the enforcement of the terms hereof. Physical possession of the original
of this Warrant or any paper copy thereof shall confer no special status to the bearer thereof.
7.5 Headings.
The headings in this Warrant are for purposes of reference only and shall not limit or otherwise affect the meaning of any provision of
this Warrant.
7.6 Governing
Law. This Warrant shall be governed by and construed in accordance with the laws of the State of Nevada, without giving effect to
its principles regarding conflicts of law.
7.7 Jurisdiction
and Venue. The Company and Holder each irrevocably and unconditionally submit to the exclusive jurisdiction of the State and Federal
courts in Clark County, Nevada.
7.8 Survival.
This Section 7 shall survive the termination of this Warrant.
[Signature page follows]
IN
WITNESS WHEREOF, the parties have caused this Warrant To Purchase Stock to be executed by their duly authorized representatives
effective as of the Issue Date written above.
| | COMPANY: |
| | | |
| | | SET JET, INC. |
| | | |
| | | By: |
|
| | | |
Name: |
Thomas P. Smith |
| | | |
Title: |
President |
| | | |
|
| | | HOLDER: |
| | | |
| | | [●] |
| | | |
| | | By: |
|
| | | |
Name: |
[●] |
| | | |
Title: |
[●] |
APPENDIX 1
Form of Notice of Exercise of Warrant
1. The
undersigned Holder hereby exercises its right to purchase ___________ shares of the Common Stock of Set Jet, Inc. (the “Company”)
in accordance with the attached Warrant To Purchase Stock, and tenders payment of the aggregate Exercise Price for such shares as follows:
[ ] Check in the amount of $________
payable to order of the Company enclosed herewith
[ ] Wire transfer of immediately available
funds to the Company’s account
[ ] Other (Describe) __________________________________________
2. Please
issue a certificate or certificates (or evidence of book entry) representing the Shares in the name specified below:
3. By
its execution below and for the benefit of the Company, Holder hereby makes each of the representations and warranties set forth in Section 6.1
of the Warrant To Purchase Stock as of the date hereof.
| HOLDER: |
| | |
| | [●] |
| | |
| | By: | |
| | Name: | |
| | Title: | |
| | | |
| | (Date): | |
Appendix
1 to Warrant to Purchase Stock
EXHIBIT B
TO THE
SUBSCRIPTION AGREEMENT
FORM OF REGISTRATION
RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement
(this “Agreement”) is made and entered into as of [·], 2023, among Revelstone Capital Acquisition Corp., a Delaware
corporation (the “Company”), and [each of] the purchaser signatory hereto (the “Purchaser”).
This Agreement is made pursuant
to the Subscription Agreement, dated as of the date hereof, between the Company and the Purchaser (the “Subscription Agreement”).
The Company and the Purchaser
hereby agrees as follows:
1. Definitions.
Capitalized
terms used and not otherwise defined herein that are defined in the Subscription Agreement shall have the meanings given such terms in
the Subscription Agreement. As used in this Agreement, the following terms shall have the following meanings:
“Advice”
shall have the meaning set forth in Section 6(d).
“Effectiveness Date”
means, with respect to the Initial Registration Statement required to be filed hereunder, the 90th calendar day following the
Closing Date (or, in the event of a “full review” by the Commission, the 120th calendar day following the Closing
Date) and with respect to any additional Registration Statements which may be required pursuant to Section 2(c), the 60th
calendar day following the date on which an additional Registration Statement is required to be filed hereunder (or, in the event of a
“full review” by the Commission, the 90th calendar day following the date such additional Registration Statement
is required to be filed hereunder); provided, however, that in the event the Company is notified by the Commission that
one or more of the above Registration Statements will not be reviewed or is no longer subject to further review and comments, the Effectiveness
Date as to such Registration Statement shall be the fifth (5th) Trading Day following the date on which the Company is so notified
if such date precedes the dates otherwise required above, provided, further, if such Effectiveness Date falls on a day that is not a Trading
Day, then the Effectiveness Date shall be the next succeeding Trading Day.
“Effectiveness Period”
shall have the meaning set forth in Section 2(a).
“Event” shall
have the meaning set forth in Section 2(d).
“Event Date”
shall have the meaning set forth in Section 2(d).
“Filing Date”
means, with respect to the Initial Registration Statement required hereunder, the 30th calendar day following the Initial Closing
Date and, with respect to any additional Registration Statements which may be required pursuant to Section 2(c), the earliest
practical date on which the Company is permitted by SEC Guidance to file such additional Registration Statement related to the Registrable
Securities.
“Holder”
or “Holders” means the holder or holders, as the case may be, from time to time of Registrable Securities.
“Indemnified Party”
shall have the meaning set forth in Section 5(c).
“Indemnifying Party”
shall have the meaning set forth in Section 5(c).
“Initial Registration
Statement” means the initial Registration Statement filed pursuant to this Agreement.
“Losses”
shall have the meaning set forth in Section 5(a).
“Plan of Distribution”
shall have the meaning set forth in Section 2(a).
“Prospectus”
means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated by the Commission
pursuant to the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Registrable Securities covered by a Registration Statement, and all other amendments and supplements to the Prospectus,
including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.
“Registrable Securities”
means, as of any date of determination, (a) all shares of Common Stock issued or issuable at the Initial Closing and the Additional
Closing (if any), (b) all shares of Common Stock and warrants to purchase shares of Common Stock issued to the Holders in connection
with the Transactions, (c) all Warrant Shares then issuable upon exercise of the Warrants (assuming on such date the Warrants are
exercised in full without regard to any exercise limitations therein) issued or issuable at the Initial Closing and the Additional Closing
(if any), and (d) any securities issued or then issuable upon any stock split, dividend or other distribution, recapitalization or
similar event with respect to the foregoing; provided, however, that the Holder has completed and delivered to the Company a Selling
Stockholder Questionnaire and that any such Registrable Securities shall cease to be Registrable Securities (and the Company shall not
be required to maintain the effectiveness of any, or file another, Registration Statement hereunder with respect thereto) for so long
as (a) a Registration Statement with respect to the sale of such Registrable Securities is declared effective by the Commission under
the Securities Act and such Registrable Securities have been disposed of by the Holder in accordance with such effective Registration
Statement, (b) such Registrable Securities have been previously sold in accordance with Rule 144, or (c) such securities
become eligible for resale without volume or manner-of-sale restrictions and without current public information pursuant to Rule 144
(assuming that such securities and any securities issuable upon exercise, conversion or exchange of which, or as a dividend upon which,
such securities were issued or are issuable, were at no time held by any Affiliate of the Company), as reasonably determined by the Company,
upon the advice of counsel to the Company.
“Registration Statement”
means any registration statement required to be filed hereunder pursuant to Section 2(a) and any additional registration
statements contemplated by Section 2(c), including (in each case) the Prospectus, amendments and supplements to any such registration
statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference
or deemed to be incorporated by reference in any such registration statement.
“Rule 415”
means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from
time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from
time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“SEC Guidance”
means (i) any publicly-available written or oral guidance of the Commission staff, or any comments, requirements or requests of the
Commission staff and (ii) the Securities Act.
“Selling Stockholder
Questionnaire” means a questionnaire in the form attached as Annex B hereto, or such other form of questionnaire as may
reasonably be adopted by the Company from time to time.
2. Resale
Registration.
(a) On
or prior to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all
of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-1 and shall contain substantially
the “Plan of Distribution” attached hereto as Annex A. Subject to the terms of this Agreement, the Company shall use its commercially
reasonable efforts to cause a Registration Statement filed under this Agreement to be declared effective under the Securities Act as promptly
as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its commercially
reasonable efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable
Securities covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be
sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance
with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written
opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”).
The Company shall promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than
the first Trading Day that the Company telephonically confirms effectiveness with the Commission. The Company shall, within two (2) Trading
Days after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
Failure to so notify the Holder within two (2) Trading Days of such notification of effectiveness or failure to file a final Prospectus
as foresaid shall be deemed an Event under Section 2(d).
(b) Notwithstanding
the registration obligations set forth in Section 2(a), if the Commission informs the Company that all of the Registrable
Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration
statement, the Company agrees to promptly inform each of the Holders thereof and use its commercially reasonable efforts to file amendments
to the Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to
be registered by the Commission, on Form S-1 or such other form available to register for resale the Registrable Securities as a
secondary offering, subject to the provisions of Section 2(e) with respect to filing on Form S-1 or other appropriate
form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages; provided, however,
that, prior to filing such amendment, the Company shall be obligated to use commercially reasonable efforts to advocate with the Commission
for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance
and Disclosure Interpretation 612.09.
(c) Notwithstanding
any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d), if the Commission
or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration
Statement as a secondary offering (and notwithstanding that the Company used commercially reasonable efforts to advocate with the Commission
for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its
Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows:
| a. | First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities;
and |
| b. | Second, the Company shall reduce Registrable Securities represented by Warrant Shares (applied, in the
case that some Warrant Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered Warrant
Shares held by such Holders). |
In the event of a cutback hereunder, the Company
shall give the Holder at least three (3) Trading Days prior written notice along with the calculations as to such Holder’s
allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, the Company will use its
commercially reasonable efforts to file with the Commission, as promptly as allowed by the Commission or SEC Guidance provided to the
Company or to registrants of securities in general, one or more registration statements on Form S-1 or such other form available
to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended.
(d) If:
(i) the Initial Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Registration
Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) herein
or the Company subsequently withdraws the filing of the Registration Statement, the Company shall be deemed to have not satisfied this
clause as of the Filing Date (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration
Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five Trading Days of the
date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that such Registration Statement will
not be “reviewed” or will not be subject to further review, or (iii) prior to the effective date of a Registration Statement,
the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of
such Registration Statement as promptly as practicable (but no later than fifteen (15)) calendar days after the receipt of comments by
or notice from the Commission that such amendment is required in order for such Registration Statement to be declared effective, or (iv) a
Registration Statement registering for resale all of the Registrable Securities is not declared effective by the Commission by the applicable
Effectiveness Date of the Registration Statement (provided if the Registration Statement does not allow for the resale of Registrable
Securities at prevailing market prices (i.e., only allows for fixed price sales), the Company shall have been deemed to have not satisfied
this clause) or (v) after the effective date of a Registration Statement, and except as provided in Section 3(c) hereof,
such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration
Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, for more
than ten (10) consecutive calendar days or more than an aggregate of twenty (20) calendar days (which need not be consecutive calendar
days) during any 12-month period (any such failure or breach being referred to as an “Event”, and for purposes of clauses
(i) and (iv), the date on which such Event occurs, and for purpose of clause (ii) the date on which such five (5) Trading
Day period is exceeded, and for purpose of clause (iii) the date which such fifteen (15) calendar day period is exceeded, and for
purpose of clause (v) the date on which such ten (10) or twenty (20) calendar day period, as applicable, is exceeded being referred
to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law,
on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by
such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages
and not as a penalty, equal to the product of 1.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to such
Holder’s Subscription Agreement provided, however, the aggregate amount payable to a Holder shall not exceed [5]%
of such Holder’s Subscription Amount. If the Company fails to pay any partial liquidated damages pursuant to this Section in
full within seven days after the date payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser maximum
amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are
due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof
shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event.
(e) Each
Holder agrees to furnish to the Company a completed Selling Stockholder Questionnaire not more than ten (10) Business Days following
the date of this Agreement. Each Holder further agrees that it shall not be entitled to be named as a selling security holder in the Registration
Statement or use the Prospectus for offers and resales of Registrable Securities at any time, unless such Holder has returned to the Company
a completed and signed Selling Stockholder Questionnaire. If a Holder of Registrable Securities returns a Selling Stockholder Questionnaire
after the deadline specified in the previous sentence, the Company shall use its commercially reasonable efforts to take such actions
as are required to name such Holder as a selling security holder in the Registration Statement or any pre-effective or post-effective
amendment thereto and to include (to the extent not theretofore included) in the Registration Statement the Registrable Securities identified
in such late Selling Stockholder Questionnaire; provided that the Company shall not be required to file an additional Registration Statement
solely for such shares. Each Holder acknowledges and agrees that the information in the Selling Stockholder Questionnaire will be used
by the Company in the preparation of the Registration Statement and hereby consents to the inclusion of such information in the Registration
Statement.
(f) Notwithstanding
anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as an
underwriter without the prior written consent of such Holder provided that if such disclosure is required by law and the Holder wishes
not to be named the Company may remove such Holder from the Registration Statement upon the Holder’s written consent.
3. Registration
Procedures.
In connection with the Company’s
registration obligations hereunder, the Company shall:
(a) Not
less than two (2) Trading Days prior to the filing of each Registration Statement and not less than one (1) Trading Day prior
to the filing of any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed
to be incorporated therein by reference), the Company shall (i) furnish to each Holder copies of all such documents proposed to be
filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the reasonable review
of such Holders, and (ii) use its commercially reasonable efforts to cause its officers and directors, counsel and independent registered
public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to each Holder,
to conduct a reasonable investigation within the meaning of the Securities Act. Notwithstanding the above, the Company shall not be obligated
to provide the Holders advance copies of any universal shelf registration statement registering securities in addition to those required
hereunder, or any Prospectus prepared thereto.
(b) (i) Prepare
and file with the Commission such amendments, including post-effective amendments, to a Registration Statement and the Prospectus used
in connection therewith as may be necessary to keep a Registration Statement continuously effective as to the applicable Registrable Securities
for the Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for
resale under the Securities Act all of the Registrable Securities, (ii) cause the related Prospectus to be amended or supplemented
by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant
to Rule 424, (iii) respond as promptly as reasonably practicable to any comments received from the Commission with respect to
a Registration Statement or any amendment thereto and provide as promptly as reasonably practicable to the Holders true and complete copies
of all correspondence from and to the Commission related to and/or applicable to a Holder in the reasonable opinion of the Company relating
to a Registration Statement (provided that, the Company shall excise any information contained therein which would constitute material
non-public information regarding the Company or any of its Subsidiaries), and (iv) comply in all material respects with the applicable
provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by a Registration
Statement during the Effectiveness Period in accordance (subject to the terms of this Agreement) with the intended methods of disposition
by the Holders thereof set forth in such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify
the Holders of Registrable Securities to be sold (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied
by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably practicable
(and, in the case of (i)(A) below, not less than one (1) Trading Day prior to such filing) and (if requested by any such Person)
confirm such notice in writing no later than one (1) Trading Day following the day (i)(A) when a Prospectus or any Prospectus
supplement or post-effective amendment to a Registration Statement is proposed to be filed, (B) when the Commission notifies the
Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on
such Registration Statement, and (C) with respect to a Registration Statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements
to a Registration Statement or Prospectus or for additional information, (iii) of the issuance by the Commission or any other federal
or state governmental authority of any stop order suspending the effectiveness of a Registration Statement covering any or all of the
Registrable Securities or the initiation of any Action for that purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction,
or the initiation or threatening of any Action for such purpose, (v) of the occurrence of any event or passage of time that makes
the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in a Registration
Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect
or that requires any revisions to a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement
or the Prospectus, as the case may be, it will not 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, in light of the circumstances under which they were made, not
misleading, and (vi) of the occurrence or existence of any pending corporate development with respect to the Company that the Company
believes may be material and that, in the determination of the Company, makes it not in the best interest of the Company to allow continued
availability of a Registration Statement or Prospectus, provided, however, in no event shall any such notice contain any
information which would constitute material, non-public information regarding the Company or any of its Subsidiaries and the Company agrees
that the Holders shall not have any duty of confidentiality to the Company or any of its Subsidiaries and shall not have any duty to the
Company or any of its Subsidiaries not to trade on the basis of such information.
(d) Use
its commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending
the effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any
of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) Furnish
to each Holder, without charge, at least one conformed copy of each such Registration Statement and each amendment thereto, including
financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested
by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the Commission; provided, that any such item which is available on the EDGAR system (or
successor thereto) need not be furnished in physical form.
(f) Subject
to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by
each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any
amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(c).
(g) Prior
to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with
the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such
Registrable Securities for the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States
as any Holder reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of
the Registrable Securities covered by each Registration Statement; provided, that, the Company shall not be required to qualify generally
to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction
where it is not then so subject or file a general consent to service of process in any such jurisdiction.
(h) If
requested by a Holder, cooperate with such Holder to facilitate the timely preparation and delivery of certificates representing Registrable
Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted
by the Subscription Agreement (solely with respect to Holders a party thereto) and applicable securities laws, of all restrictive legends,
and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holder may reasonably request.
(i) Upon
the occurrence of any event contemplated by Section 3(c), as promptly as reasonably practicable under the circumstances taking
into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature
disclosure of such event, prepare a supplement or amendment, including a post-effective amendment, to a Registration Statement or a supplement
to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, neither a Registration Statement nor such Prospectus will contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (iii) through
(vi) of Section 3(c) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have
been made, then the Holders shall suspend use of such Prospectus. [The Company shall be entitled to exercise its right under this Section to
suspend the availability of a Registration Statement and Prospectus [, subject to the payment of partial liquidated damages otherwise
required pursuant to Section 2(d),] for a period not to exceed [60] calendar days (which need not be consecutive days) in any 12-month
period.] The Company will use its commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly
as is practicable. In addition, if (i) there is material non-public information regarding the Company which the Company’s Board
of Directors (the “Board”) determines not to be in the Company’s best interest to disclose and which the Company
is not otherwise required to disclose, (ii) there is a significant business opportunity (including, but not limited to, the acquisition
or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction)
available to the Company which the Board determines not to be in the Company’s best interest to disclose, or (iii) the Company
is required to file a post-effective amendment to the Registration Statement to incorporate the Company’s quarterly and annual reports
and audited financial statements on Forms 10-Q and 10-K, then the Company may (x) postpone or suspend filing of a registration statement
for a period not to exceed forty-five (45) consecutive days or (y) postpone or suspend effectiveness of a registration statement
for a period not to exceed forty-five (45) consecutive days; provided that the Company may not postpone or suspend effectiveness
of a registration statement under this Section for more than sixty (60) days in the aggregate during any three hundred sixty (360)
day period; provided, however, that no such postponement or suspension shall be permitted for consecutive twenty (20) day
periods arising out of the same set of facts, circumstances or transactions.
(j) Otherwise
use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission under the Securities Act
and the Exchange Act, including, without limitation, Rule 172 under the Securities Act, file any final Prospectus, including any
supplement or amendment thereof, with the Commission pursuant to Rule 424 under the Securities Act, promptly inform the Holders in
writing if, at any time during the Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172 and, as
a result thereof, the Holders are required to deliver a Prospectus in connection with any disposition of Registrable Securities and take
such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder
(k) Comply
in all material respects with all applicable rules and regulations of the Commission.
(l) The
Company shall require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially
owned by such Holder and, if required by the Commission, the natural persons thereof that have voting and dispositive control over the
shares, pursuant to the Selling Stockholder Questionnaire. During any periods that the Company is unable to meet its obligations hereunder
with respect to the registration of the Registrable Securities solely because any Holder fails to furnish such information within the
Business Days of the Company’s request, any liquidated damages that are accruing at such time as to such Holder only shall be tolled
and any Event that may otherwise occur solely because of such delay shall be suspended as to such Holder only, until such information
is delivered to the Company.
4. Registration
Expenses. All fees and expenses incident to the performance of or compliance with, this Agreement by the Company shall be borne by
the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to
in the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses of the Company’s counsel and independent registered public accountants) (A) with respect to filings made
with the Commission, (B) with respect to filings required to be made with any Trading Market on which the Common Stock is then listed
for trading, (C) in compliance with applicable state securities or Blue Sky laws reasonably agreed to by the Company in writing (including,
without limitation, fees and disbursements of counsel for the Company in connection with Blue Sky qualifications or exemptions of the
Registrable Securities) and (D) if not previously paid by the Company in connection with an Issuer Filing, with respect to any filing
that may be required to be made by any broker through which a Holder intends to make sales of Registrable Securities with FINRA pursuant
to FINRA Rule 5110, so long as the broker is receiving no more than a customary brokerage commission in connection with such sale,
(ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company, (v) Securities Act liability insurance,
if the Company so desires such insurance, and (vi) fees and expenses of all other Persons retained by the Company in connection with
the consummation of the transactions contemplated by this Agreement. In addition, the Company shall be responsible for all of its internal
expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation,
all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit and the
fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange as required hereunder.
In no event shall the Company be responsible for any broker or similar commissions of any Holder or, except to the extent provided for
in the Transaction Documents, any legal fees or other costs of the Holders.
5. Indemnification.
(a) Indemnification
by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Holder, the
officers, directors, members, partners, agents, brokers (including brokers who offer and sell Registrable Securities as principal as a
result of a pledge or any failure to perform under a margin call of Common Stock), investment advisors and employees (and any other Persons
with a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title) of each
of them, each Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) and the officers, directors, members, stockholders, partners, agents and employees (and any other Persons with a functionally
equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title) of each such controlling Person,
to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, arising out
of or relating to (1) any untrue or alleged untrue statement of a material fact contained in a Registration Statement, any Prospectus
or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to
any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the
case of any Prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading or (2) any
violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or
regulation thereunder, in connection with the performance of its obligations under this Agreement, except to the extent, but only to the
extent, that (i) such untrue statements or omissions are based solely upon information regarding such Holder furnished in writing
to the Company by such Holder expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s
proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly
for use in a Registration Statement, such Prospectus or in any amendment or supplement thereto (it being understood that the Holder has
approved Annex A hereto for this purpose) or (ii) in the case of an occurrence of an event of the type specified in Section 3(c)(iii)-(vi),
the use by such Holder of an outdated, defective or otherwise unavailable Prospectus after the Company has notified such Holder in writing
that the Prospectus is outdated, defective or otherwise unavailable for use by such Holder and prior to the receipt by such Holder of
the Advice contemplated in Section 6(d). The Company shall notify the Holders promptly of the institution, threat or assertion
of any Action arising from or in connection with the transactions contemplated by this Agreement of which the Company is aware. Such indemnity
shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified person and shall survive
the transfer of any Registrable Securities by any of the Holders in accordance with Section 6(h).
(b) Indemnification
by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, its directors, officers, agents
and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act), and the directors, officers, agents or employees of such controlling Persons (and any other Persons with a functionally
equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title), to the fullest extent permitted
by applicable law, from and against all Losses, as incurred, to the extent arising out of or based solely upon: (x) such Holder’s
failure to comply with any applicable prospectus delivery requirements of the Securities Act through no fault of the Company or (y) any
untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus, or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or supplement thereto, in light
of the circumstances under which they were made) not misleading (i) to the extent, but only to the extent, that such untrue statement
or omission is contained in any information so furnished in writing by such Holder to the Company expressly for inclusion in such Registration
Statement or such Prospectus or (ii) to the extent, but only to the extent, that such information relates to such Holder’s
information provided in the Selling Stockholder Questionnaire or the proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use in a Registration Statement (it being understood that the
Holder has approved Annex A hereto for this purpose), such Prospectus or in any amendment or supplement thereto or (iii) in the case
of an occurrence of an event of the type specified in Section 3(c)(iii)-(vi), to the extent, but only to the extent, related
to the use by such Holder of an outdated, defective or otherwise unavailable Prospectus after the Company has notified such Holder in
writing that the Prospectus is outdated, defective or otherwise unavailable for use by such Holder and prior to the receipt by such Holder
of the Advice contemplated in Section 6(d), but only if and to the extent that following the receipt of the Advice the misstatement
or omission giving rise to such Loss would have been corrected. In no event shall the liability of any selling Holder under this Section 5(b) be
greater in amount than the dollar amount of the net proceeds (net of all expenses paid by such Holder in connection with any claim relating
to this Section and the amount of any damages such Holder has otherwise been required to pay by reason of this Section) received
by such Holder upon the sale of the Registrable Securities included in the Registration Statement giving rise to such indemnification
obligation.
(c) Conduct
of Indemnification Actions. If any Action shall be brought or asserted against any Person entitled to indemnity hereunder (an “Indemnified
Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”)
in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided,
that, the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities
pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal or further review) that such failure shall have materially and adversely prejudiced the Indemnifying
Party.
An Indemnified Party shall have
the right to employ separate counsel in any such Action and to participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such
fees and expenses, (2) the Indemnifying Party shall have failed promptly to assume the defense of such Action and to employ counsel
reasonably satisfactory to such Indemnified Party in any such Action, or (3) the named parties to any such Action (including any
impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to the Indemnified Party shall reasonably
believe that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying
Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at
the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable
fees and expenses of no more than one separate counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shall
not be liable for any settlement of any such Action effected without its written consent, which consent shall not be unreasonably withheld
or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending
Action in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified
Party from all liability on claims that are the subject matter of such Action.
Subject to the terms of this
Agreement, all reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in
connection with investigating or preparing to defend such Action in a manner not inconsistent with this Section) shall be paid to the
Indemnified Party, as incurred, within ten Trading Days of written notice thereof to the Indemnifying Party, provided that the Indemnified
Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such actions for which
such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further
review) not to be entitled to indemnification hereunder.
(d) Contribution.
If the indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified Party or insufficient
to hold an Indemnified Party harmless for any Losses, then each Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party
in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such 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 of a material
fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount
paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in this Agreement,
any reasonable attorneys’ or other fees or expenses incurred by such party in connection with any Action to the extent such party
would have been indemnified for such fees or expenses if the indemnification provided for in this Section was available to such party
in accordance with its terms.
The parties hereto agree that
it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation
or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), no Holder shall be required to contribute pursuant to this
Section 5(d), in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such Holder
from the sale of the Registrable Securities subject to the Action exceeds the amount of any damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.
The indemnity and contribution
agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties.
6. Miscellaneous.
(a) Remedies.
In the event of a breach by the Company or by a Holder of any of their respective obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery
of damages, shall be entitled to specific performance of its rights under this Agreement. Each of the Company and each Holder agrees that
monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions
of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall
not assert or shall waive the defense that a remedy at law would be adequate.
(b) No
Piggyback on Registrations; Prohibition on Filing Other Registration Statements. Except as set forth on Schedule 6(b) attached
hereto, neither the Company nor any of its security holders (other than the Holders in such capacity pursuant hereto) may include securities
of the Company in any Registration Statements other than the Registrable Securities. The Company shall not file any other registration
statements until all Registrable Securities are registered pursuant to a Registration Statement that is declared effective by the Commission,
provided that this Section 6(b) (i) shall not prohibit the Company from filing amendments to registration statements
filed prior to the date of this Agreement and (ii) shall not prohibit the Company from filing a shelf registration statement on Form S-3
for a primary offering by the Company, provided that the Company makes no offering of securities pursuant to such shelf registration statement
prior to the effective date of the Registration Statement required hereunder that includes all of the Registrable Securities.
(c) Compliance.
Each Holder covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to
it (unless an exemption therefrom is available) in connection with sales of Registrable Securities pursuant to a Registration Statement.
(d) Discontinued
Disposition. By its acquisition of Registrable Securities, each Holder agrees that, upon receipt of a notice from the Company of the
occurrence of any event of the kind described in Section 3(c)(iii) through (vi), such Holder will forthwith discontinue
disposition of such Registrable Securities under a Registration Statement until it is advised in writing (the “Advice”)
by the Company that the use of the applicable Prospectus (as it may have been supplemented or amended) may be resumed. The Company will
use its commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable.
(e) Piggy-Back
Registrations. If, at any time during the Effectiveness Period, there is not an effective Registration Statement covering all of the
Registrable Securities and the Company shall determine to prepare and file with the Commission a registration statement relating to an
offering for its own account or the account of others under the Securities Act of any of its equity securities, other than on Form S-4
or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely
in connection with any acquisition of any entity or business or equity securities issuable in connection with the Company’s stock
option or other employee benefit plans, then the Company shall deliver to each Holder a written notice of such determination and, if within
fifteen days after the date of the delivery of such notice, any such Holder shall so request in writing, the Company shall include in
such registration statement all or any part of such Registrable Securities such Holder requests to be registered; provided, however,
that the Company shall not be required to register any Registrable Securities pursuant to this Section 6(e) that are
eligible for resale pursuant to Rule 144 (without volume restrictions or current public information requirements) promulgated by
the Commission pursuant to the Securities Act or that are the subject of a then effective Registration Statement.
(f) Amendments
and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be given, unless the same shall be in writing and signed by the
Company and the Holders of at least a majority of the then outstanding Registrable Securities (for purposes of clarification, this includes
any Registrable Securities issuable upon exercise or conversion of any Security), provided that, if any amendment, modification or waiver
disproportionately and adversely impacts a Holder (or group of Holders), the consent of such disproportionately impacted Holder (or group
of Holders) shall be required. If a Registration Statement does not register all of the Registrable Securities pursuant to a waiver or
amendment done in compliance with the previous sentence, then the number of Registrable Securities to be registered for each Holder shall
be reduced pro rata among all Holders and each Holder shall have the right to designate which of its Registrable Securities shall be omitted
from such Registration Statement. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of a Holder or some Holders and that does not directly or indirectly affect the rights
of other Holders may be given only by such Holder or Holders of all of the Registrable Securities to which such waiver or consent relates;
provided, however, that the provisions of this sentence may not be amended, modified, or supplemented except in accordance
with the provisions of the first sentence of this Section. No consideration shall be offered or paid to any Person to amend or consent
to a waiver or modification of any provision of this Agreement unless the same consideration also is offered to all of the parties to
this Agreement.
(g) Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be delivered as set forth
in the Subscription Agreement.
(h) Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each Holder. The Company may not assign (except by merger) its rights or obligations hereunder
without the prior written consent of all of the Holders of the then outstanding Registrable Securities. Each Holder may assign their respective
rights hereunder to any Person to whom the Purchaser assigns or transfers any Registrable Securities, provided that such transferee agrees
in writing to be bound, with respect to the transferred Registrable Securities, by the provisions of this Agreement and any other Transaction
Document that applies to the Purchaser.
(i) No
Inconsistent Agreements. Neither the Company nor any of its Subsidiaries has entered, as of the date hereof, nor shall the Company
or any of its Subsidiaries, on or after the date of this Agreement, enter into any agreement with respect to its securities, that would
have the effect of impairing the rights granted to the Holders in this Agreement or otherwise conflicts in any material respect with the
provisions hereof. Except as set forth on Schedule 6(i), neither the Company nor any of its Subsidiaries has previously entered
into any agreement granting any registration rights with respect to any of its securities to any Person that have not been satisfied in
full.
(j) Execution
and Counterparts. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party,
it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission
or by e-mail delivery of a “.pdf” format data file or any electronic signature complying with the U.S. federal ESIGN Act of
2000 (e.g., www.docusign.com), such signature shall create a valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original
thereof.
(k) Governing
Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without giving
effect to any of the conflicts of law principles which would result in the application of the substantive law of another jurisdiction.
This Agreement shall not be interpreted or construed with any presumption against the party causing this Agreement to be drafted.
(l) Cumulative
Remedies. The remedies provided herein are cumulative and not exclusive of any other remedies provided by law.
(m) Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
(n) Headings.
The headings in this Agreement are for convenience only, do not constitute a part of the Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
(o) Independent
Nature of Holders’ Obligations and Rights. The obligations of each Holder hereunder are several and not joint with the obligations
of any other Holder hereunder, and no Holder shall be responsible in any way for the performance of the obligations of any other Holder
hereunder. Nothing contained herein or in any other agreement or document delivered at any closing, and no action taken by any Holder
pursuant hereto or thereto, shall be deemed to constitute the Holders as a partnership, an association, a joint venture or any other kind
of group or entity, or create a presumption that the Holders are in any way acting in concert or as a group or entity with respect to
such obligations or the transactions contemplated by this Agreement or any other matters. Each Holder shall be entitled to protect and
enforce its rights, including without limitation the rights arising out of this Agreement, and it shall not be necessary for any other
Holder to be joined as an additional party in any proceeding for such purpose. The use of a single agreement with respect to the obligations
of the Company contained was solely in the control of the Company, not the action or decision of any Holder, and was done solely for the
convenience of the Company and not because it was required or requested to do so by any Holder. It is expressly understood and agreed
that each provision contained in this Agreement is between the Company and a Holder, solely, and not between the Company and the Holders
collectively and not between and among Holders.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties
have executed this Registration Rights Agreement as of the date first written above.
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Revelstone Capital Acquisition Corp. |
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By: |
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Name: |
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Title: |
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[SIGNATURE PAGE OF HOLDERS FOLLOWS]
[SIGNATURE PAGE OF HOLDERS TO RRA]
| Signature of Authorized Signatory of Holder: | |
| Name of Authorized Signatory: | |
| Title of Authorized Signatory: | |
[SIGNATURE PAGES CONTINUE]
Schedule 6(b)
Other Securities to be Included on the Registration Statement
[None.]
Annex A
Plan of Distribution
Each selling Stockholder (the
“Selling Stockholders”) of the securities and any of their pledgees, assignees and successors-in-interest may, from
time to time, sell any or all of their securities covered hereby on the principal Trading Market or any other stock exchange, market or
trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A Selling
Stockholder may use any one or more of the following methods when selling securities:
| · | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| · | block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the
block as principal to facilitate the transaction; |
| · | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| · | an exchange distribution in accordance with the rules of the applicable exchange; |
| · | privately negotiated transactions; |
| · | settlement of short sales entered into after the effective date of the registration statement of which this prospectus is a part; |
| · | in transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities at a
stipulated price per security; |
| · | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| · | a combination of any such methods of sale; or |
| · | any other method permitted pursuant to applicable law. |
The Selling Stockholders may
also sell securities under Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”), if available,
rather than under this prospectus.
Broker-dealers engaged by
the Selling Stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts
from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts
to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in excess of a
customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or markdown
in compliance with FINRA Rule 2121.
In connection with the sale
of the securities or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The Selling
Stockholders may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities
to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer
or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution
may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The Selling Stockholders and
any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning
of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any
profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities
Act. Each Selling Stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly
or indirectly, with any person to distribute the securities.
The Company is required to
pay certain fees and expenses incurred by the Company incident to the registration of the securities. The Company has agreed to indemnify
the Selling Stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to keep this prospectus
effective until the earlier of (i) the date on which the securities may be resold by the Selling Stockholders without registration
and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to
be in compliance with the current public information requirement under Rule 144 under the Securities Act or any other rule of
similar effect or (ii) the date on which all of the securities have been sold pursuant to this prospectus or Rule 144 under
the Securities Act or any other rule of similar effect. The resale securities will be sold only through registered or licensed brokers
or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may
not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
Under applicable rules and
regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in market
making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement
of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the Exchange Act and the rules and
regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of securities of the common stock by
the Selling Stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholders and have informed
them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with
Rule 172 under the Securities Act).
Annex B
REVELSTONE CAPITAL ACQUISITION CORP.
Selling Stockholder Notice and Questionnaire
The undersigned beneficial
owner of common stock (the “Registrable Securities”) of REVELSTONE CAPITAL ACQUISITION CORP., a Delaware corporation
(the “Company”), understands that the Company has filed or intends to file with the Securities and Exchange Commission
(the “Commission”) a registration statement (the “Registration Statement”) for the registration
and resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), of the Registrable
Securities, in accordance with the terms of the Registration Rights Agreement (the “Registration Rights Agreement”)
to which this document is annexed. A copy of the Registration Rights Agreement is available from the Company upon request at the address
set forth below. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights
Agreement.
In order to sell or otherwise
dispose of any Registrable Securities pursuant to the Registration Statement, a holder of Registrable Securities generally will be required
to be named as a selling stockholder in the related prospectus or a supplement thereto (as so supplemented, the “Prospectus”),
deliver the Prospectus to purchasers of Registrable Securities (including pursuant to Rule 172 under the Securities Act) and be bound
by the provisions of the Registration Rights Agreement (including certain indemnification provisions, as described below). Holders must
complete and deliver this Notice and Questionnaire in order to be named as selling stockholders in the Prospectus. Holders of Registrable
Securities who do not complete, execute and return this Notice and Questionnaire within ten (10) Business Days following the date
of the Agreement (1) will not be named as selling stockholders in the Resale Registration Statement or the Prospectus and (2) may
not use the Prospectus for resales of Registrable Securities.
Certain legal consequences
arise from being named as a selling stockholder in the Registration Statement and the related prospectus. Accordingly, holders and beneficial
owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or
not being named as a selling stockholder in the Registration Statement and the related prospectus.
NOTICE
The undersigned beneficial
owner (the “Selling Stockholder”) of Registrable Securities hereby elects to include the Registrable Securities owned
by it in the Registration Statement.
The undersigned hereby provides
the following information to the Company and represents and warrants that such information is accurate:
QUESTIONNAIRE
1. Name.
| (a) | Full Legal Name of Selling Stockholder |
| (b) | Full Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities
are held: |
| (c) | Full Legal Name of Natural Control Person (which means a natural person who directly or indirectly alone
or with others has power to vote or dispose of the securities covered by this Questionnaire): |
2. Address
for Notices to Selling Stockholder:
| |
| |
| |
| Telephone: |
| Email: |
| Fax: |
| Contact Person: |
3. Broker-Dealer
Status:
| (a) | Are you a broker-dealer? |
Yes
¨ No ¨
| (b) | If “yes” to Section 3(a), did you receive your Registrable Securities as compensation
for investment banking services to the Company? |
Yes
¨ No ¨
Note: If
“no” to Section 3(b), the Commission’s staff has indicated that you should be identified as an underwriter
in the Registration Statement.
| (c) | Are you an affiliate of a broker-dealer? |
Yes
¨ No ¨
| (d) | If you are an affiliate of a broker-dealer, do you certify that you purchased the Registrable Securities
in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements
or understandings, directly or indirectly, with any person to distribute the Registrable Securities? |
Yes
¨ No ¨
Note: If
“no” to Section 3(d), the Commission’s staff has indicated that you should be identified as an underwriter
in the Registration Statement.
4. Beneficial
Ownership of Securities of the Company Owned by the Selling Stockholder.
Except as set forth below in this
Item 4, the undersigned is not the beneficial or registered owner of any securities of the Company other than the securities issuable
pursuant to the Subscription Agreement.
| (a) | Type and Amount of other securities beneficially owned by the Selling Stockholder: |
| (b) | Number of shares of Common Stock to be registered pursuant to this Notice for resale: |
5. Relationships
with the Company:
Except as set forth below, neither
the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5% of more of the equity securities
of the undersigned) has held any position or office or has had any other material relationship with the Company (or its predecessors or
affiliates) during the past three years.
State any exceptions here:
The undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof
at any time while the Registration Statement remains effective.
By signing below, the undersigned
consents to the disclosure of the information contained herein in its answers to Items 1 through 5 and the inclusion of such information
in the Registration Statement and the related prospectus and any amendments or supplements thereto. The undersigned understands that such
information will be relied upon by the Company in connection with the preparation or amendment of the Registration Statement and the related
prospectus and any amendments or supplements thereto.
IN WITNESS WHEREOF the undersigned,
by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized
agent.
| Date: |
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Beneficial Owner: |
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By: |
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Name: |
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Title: |
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EXHIBIT C TO THE
SUBSCRIPTION AGREEMENT
ACCREDITED INVESTOR QUESTIONNAIRE
ACCREDITED INVESTOR QUESTIONNAIRE
[NAME].
INSTRUCTIONS
PLEASE ANSWER ALL QUESTIONS.
If the appropriate answer is “None” or “Not Applicable”, so state. Please print or type your answers to all questions.
Attach additional sheets if necessary to complete your answers to any item.
Your answers will be kept strictly
confidential at all times. However, [____________]. (the “Company”) may present this Questionnaire to such parties as it deems
appropriate in order to assure itself that the offer and sale of securities of the Company will not result in a violation of the registration
provisions of the Securities Act of 1933, as amended, or a violation of the securities laws of any state.
1. Please
provide the following information:
| Name
of additional purchaser: | |
(Please
complete information in Question 5)
Date of birth, or if other than an individual, year of organization
or incorporation:
2. Residence
address, or if other than an individual, principal office address:
| Taxpayer Identification Number: | |
| Business telephone number: | |
| 4. Send mail to: |
Residence |
|
|
Business |
|
|
5. With
respect to tenants in common, joint tenants and tenants by the entirety, complete only if information differs from that above:
| Taxpayer Identification Number: | |
| Business telephone number: | |
| Send Mail to: |
Residence |
|
|
Business |
|
|
6. Please
describe your present or most recent business or occupation and indicate such information as the nature of your employment, how long you
have been employed there, the principal business of your employer, the principal activities under your management or supervision and the
scope (e.g. dollar volume, industry rank, etc.) of such activities:
7. Please
state whether you (i) are associated with or affiliated with a member of the Financial Industry Regulatory Authority (“FINRA”),
(ii) are an owner of stock or other securities of an FINRA member (other than stock or other securities purchased on the open market),
or (iii) have made a subordinated loan to any FINRA member:
If you answered yes to any of (i) – (iii) above, please
indicate the applicable answer and briefly describe the facts below:
8A. Applicable
to Individuals ONLY. Please answer the following questions concerning your financial condition as an “accredited investor”
(within the meaning of Rule 501 of Regulation D). If the purchaser is more than one individual, each individual must initial an answer
where the question indicates a “yes” or “no” response and must answer any other question fully, indicating to
which individual such answer applies. If the purchaser is purchasing jointly with his or her spouse, one answer may be indicated for the
couple as a whole:
8.1 Does
your net worth* (or joint net worth with your spouse) exceed $1,000,000?
8.2 Did
you have an individual income** in excess of $200,000 or joint income together with your spouse in excess of $300,000 in each of the two
most recent years and do you reasonably expect to reach the same income level in the current year?
8.3 Are
you an executive officer of the Company?
* For purposes hereof, net worth shall be deemed
to include ALL of your assets, liquid or illiquid EXCLUDING YOUR PRIMARY RESIDENCE (including such items as second homes, furnishings,
automobile and restricted securities) MINUS any liabilities (including such items as mortgages and other debts and liabilities and the
amount, if any, by which any mortgage on your primary residence exceeds its fair market value, but excluding any such mortgage to the
extent it does not so exceed such fair market value).
** For purposes hereof, the term “income”
is not limited to “adjusted gross income” as that term is defined for federal income tax purposes, but rather includes certain
items of income which are deducted in computing “adjusted gross income”. For investors who are salaried employees, the gross
salary of such investor, minus any significant expenses personally incurred by such investor in connection with earning the salary, plus
any income from any other source including unearned income, is a fair measure of “income” for purposes hereof. For investors
who are self-employed, “income” is generally construed to mean total revenues received during the calendar year minus significant
expenses incurred in connection with earning such revenues.
8.B Applicable
to Corporations, Partnerships, Trusts, Limited Liability Companies and other Entities ONLY:
The purchaser is an accredited investor because
the purchaser falls within at least one of the following categories (Check all appropriate lines):
| ¨ | (i) a bank as defined in Section 3(a)(2) of the Act or a savings and loan association or
other institution as defined in Section 3(a)(5)(A) of the Act whether acting in its individual or fiduciary capacity; |
| ¨ | (ii) a broker-dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934,
as amended; |
| ¨ | (iii) an insurance company as defined in Section 2(13) of the Act; |
| ¨ | (iv) an investment company registered under the Investment Company Act of 1940, as amended (the “Investment
Act”) or a business development company as defined in Section 2(a)(48) of the Investment Act; |
| ¨ | (v) a Small Business Investment Company licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of 1958, as amended; |
| ¨ | (vi) a plan established and maintained by a state, its political subdivisions, or any agency or instrumentality
of a state or its political subdivisions, for the benefit of its employees, where such plan has total assets in excess of $5,000,000; |
| ¨ | (vii) an employee benefit plan within the meaning of Title 1 of the Employee Retirement Income Security
Act of 1974, as amended (the “Employee Act”), where the investment decision is made by a plan fiduciary, as defined in Section 3(21)
of the Employee Act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or an
employee benefit plan that has total assets in excess of $5,000,000, or a self-directed plan the investment decisions of which are made
solely by persons that are accredited investors; |
| ¨ | (viii) a private business development company, as defined in Section 202(a)(22) of the Investment
Advisers Act of 1940, as amended; |
| ¨ | (ix) an organization described in Section 501(c)(3) of the Internal Revenue Code, a corporation,
a Massachusetts or similar business trust, or a partnership, not formed for the specific purpose of acquiring the securities offered,
with total assets in excess of $5,000,000; |
| ¨ | (x) a trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring
the securities offered, whose purchase is directed by a “sophisticated” person, as described in Rule 506(b)(2)(ii) promulgated
under the Act, who has such knowledge and experience in financial and business matters that he or she is capable of evaluating the merits
and risks of the prospective investment; |
| ¨ | (xi) an entity in which all of the equity investors are persons or entities described above (“accredited
investors”). ALL EQUITY OWNERS MUST COMPLETE “EXHIBIT A” ATTACHED HERETO. |
9.A Do
you have sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks
associated with investing in the Company?
ANSWER QUESTION 9B ONLY IF THE ANSWER TO QUESTION 9A WAS “NO.”
9.B If
the answer to Question 9A was “NO,” do you have a financial or investment adviser (a) that is acting in the capacity
as a purchaser representative and (b) who has sufficient knowledge and experience in financial and business matters so as to be capable
of evaluating the merits and risks associated with investing in the Company?
If you have a financial or investment adviser(s),
please identify each such person and indicate his or her business address and telephone number in the space below. (Each such person must
complete, and you must review and acknowledge, a separate Purchaser Representative Questionnaire which will be supplied at your request).
10. You
have the right, will be afforded an opportunity, and are encouraged to investigate the Company and review relevant factors and documents
pertaining to the officers of the Company, and the Company and its business and to ask questions of a qualified representative of the
Company regarding this investment and the properties, operations, and methods of doing business of the Company.
Have you or has your purchaser representative,
if any, conducted any such investigation, sought such documents or asked questions of a qualified representative of the Company regarding
this investment and the properties, operations, and methods of doing business of the Company?
If so, have you completed your investigation and/or
received satisfactory answers to your questions?
11. Do
you understand the nature of an investment in the Company and the risks associated with such an investment?
12. Do
you understand that there is no guarantee of any financial return on this investment and that you will be exposed to the risk of losing
your entire investment?
13. Do
you understand that this investment is not liquid?
14. Do
you have adequate means of providing for your current needs and personal contingencies in view of the fact that this is not a liquid investment?
15. Are
you aware of the Company’s business affairs and financial condition, and have you acquired all such information about the Company
as you deem necessary and appropriate to enable you to reach an informed and knowledgeable decision to acquire the Interests?
16. Do
you have a “pre-existing relationship” with the Company or any of the officers of the Company?
(For purposes hereof, “pre-existing relationship”
means any relationship consisting of personal or business contacts of a nature and duration such as would enable a reasonably prudent
investor to be aware of the character, business acumen, and general business and financial circumstances of the person with whom such
relationship exists.)
If so, please name the individual or other person
with whom you have a pre-existing relationship and describe the relationship:
Dated: _______________, 2023
If purchaser is one or more individuals (all individuals must sign):
(Type or print name of prospective purchaser)
Signature of prospective purchaser
Social Security Number
(Type or print name of additional purchaser)
Signature of spouse, joint tenant, tenant in common or other signature, if required
Social Security Number
Annex A
Definition of Accredited Investor
The securities will only be
sold to investors who represent in writing in the Subscription Agreement that they are accredited investors, as defined in Regulation
D, Rule 501 under the Act which definition is set forth below:
1. A
natural person whose net worth, or joint net worth with spouse, at the time of purchase exceeds $1 million; or
2. A
natural person whose individual gross income exceeded $200,000 or whose joint income with that person’s spouse exceeded $300,000
in each of the last two years, and who reasonably expects to exceed such income level in the current year; or
3. A
trust with total assets in excess of $5 million, not formed for the specific purpose of acquiring the securities offered, whose purchase
is directed by a sophisticated person described in Regulation D; or
4. A
director or executive officer of the Company; or
5. The
investor is an entity, all of the owners of which are accredited investors; or
6. (a) bank
as defined in Section 3(a)(2) of the Act, or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of
the Act, (b) any broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, (c) an insurance
Company as defined in Section 2(13) of the Act, (d) an investment Company registered under the Investment Company Act of 1940
or a business development Company as defined in Section 2(a)(48) of such Act, (e) a Small Business Investment Company licensed
by the United States Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of
1958, (f) an employee benefit plan established and maintained by a state, its political subdivisions, or any agency or instrumentality
of a state or its political subdivisions, if such plan has total assets in excess of $5 million, (g) an employee benefit plan within
the meaning of Title I of the Employee Retirement Income Securities Act of 1974, and the employee benefit plan has assets in excess of
$5 million, or the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such act, that is either a bank,
savings and loan institution, insurance Company, or registered investment advisor, or, if a self-directed plan, with an investment decisions
made solely by persons that are accredited investors, (h) a private business development company as defined in Section 202(a)(22)
of the Investment Advisers Act of 1940, or (i) an organization described in Section 501(c)(3) of the Internal Revenue code,
corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities
offered, with assets in excess of $5 million.
EXHIBIT “A”
TO ACCREDITED INVESTOR QUESTIONNAIRE
ACCREDITED CORPORATIONS, PARTNERSHIPS, LIMITED
LIABILITY COMPANIES, TRUSTS OR OTHER ENTITIES INITIALING QUESTION 8B(xi) MUST PROVIDE THE FOLLOWING INFORMATION.
I hereby certify that set forth below is a complete
list of all equity owners in __________________ [NAME OF ENTITY], a
[TYPE OF ENTITY] formed pursuant to the laws of the State of
. I also certify that EACH SUCH OWNER HAS INITIALED THE SPACE OPPOSITE HIS OR HER NAME and that each such owner understands
that by initialing that space he or she is representing that he or she is an accredited individual investor satisfying the test for accredited
individual investors indicated under “Type of Accredited Investor.”
| | |
| | signature of authorized corporate officer, general partner
or trustee |
| Name of Equity Owner |
Type of Accredited Investor1 |
| 1. |
|
| 2. |
|
| 3. |
|
| 4. |
|
| 5. |
|
| 6. |
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| 7. |
|
| 8. |
|
| 9. |
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| 10. |
|
1 Indicate
which Subparagraph of 8.1 - 8.3 the equity owner satisfies.
EXHIBIT D TO THE
SUBSCRIPTION AGREEMENT
WIRE INSTRUCTIONS
EXHIBIT E TO THE
SUBSCRIPTION AGREEMENT
FORM OF OPINION
OF COUNSEL
[Issued
by Loeb at Initial Closing and by Snell & Wilmer at Second Closing]
Exhibit 10.7
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement
(this “Agreement”) is made and entered into as of [·], 2023, among Revelstone Capital Acquisition Corp., a Delaware
corporation (the “Company”), and [each of] the purchaser signatory hereto (the “Purchaser”).
This Agreement is made pursuant
to the Subscription Agreement, dated as of the date hereof, between the Company and the Purchaser (the “Subscription Agreement”).
The Company and the Purchaser
hereby agrees as follows:
1. Definitions.
Capitalized terms used and
not otherwise defined herein that are defined in the Subscription Agreement shall have the meanings given such terms in the Subscription
Agreement. As used in this Agreement, the following terms shall have the following meanings:
“Advice”
shall have the meaning set forth in Section 6(d).
“Effectiveness Date”
means, with respect to the Initial Registration Statement required to be filed hereunder, the 90th calendar day following the
Closing Date (or, in the event of a “full review” by the Commission, the 120th calendar day following the Closing
Date) and with respect to any additional Registration Statements which may be required pursuant to Section 2(c), the 60th
calendar day following the date on which an additional Registration Statement is required to be filed hereunder (or, in the event of a
“full review” by the Commission, the 90th calendar day following the date such additional Registration Statement
is required to be filed hereunder); provided, however, that in the event the Company is notified by the Commission that
one or more of the above Registration Statements will not be reviewed or is no longer subject to further review and comments, the Effectiveness
Date as to such Registration Statement shall be the fifth (5th) Trading Day following the date on which the Company is so notified
if such date precedes the dates otherwise required above, provided, further, if such Effectiveness Date falls on a day that is not a Trading
Day, then the Effectiveness Date shall be the next succeeding Trading Day.
“Effectiveness Period”
shall have the meaning set forth in Section 2(a).
“Event” shall
have the meaning set forth in Section 2(d).
“Event Date”
shall have the meaning set forth in Section 2(d).
“Filing Date”
means, with respect to the Initial Registration Statement required hereunder, the 30th calendar day following the Initial Closing
Date and, with respect to any additional Registration Statements which may be required pursuant to Section 2(c), the earliest
practical date on which the Company is permitted by SEC Guidance to file such additional Registration Statement related to the Registrable
Securities.
“Holder”
or “Holders” means the holder or holders, as the case may be, from time to time of Registrable Securities.
“Indemnified Party”
shall have the meaning set forth in Section 5(c).
“Indemnifying Party”
shall have the meaning set forth in Section 5(c).
“Initial Registration
Statement” means the initial Registration Statement filed pursuant to this Agreement.
“Losses”
shall have the meaning set forth in Section 5(a).
“Plan of Distribution”
shall have the meaning set forth in Section 2(a).
“Prospectus”
means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated by the Commission
pursuant to the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Registrable Securities covered by a Registration Statement, and all other amendments and supplements to the Prospectus,
including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.
“Registrable Securities”
means, as of any date of determination, (a) all shares of Common Stock issued or issuable at the Initial Closing and the Additional
Closing (if any), (b) all shares of Common Stock and warrants to purchase shares of Common Stock issued to the Holders in connection
with the Transactions, (c) all Warrant Shares then issuable upon exercise of the Warrants (assuming on such date the Warrants are
exercised in full without regard to any exercise limitations therein) issued or issuable at the Initial Closing and the Additional Closing
(if any), and (d) any securities issued or then issuable upon any stock split, dividend or other distribution, recapitalization or
similar event with respect to the foregoing; provided, however, that the Holder has completed and delivered to the Company a Selling
Stockholder Questionnaire and that any such Registrable Securities shall cease to be Registrable Securities (and the Company shall not
be required to maintain the effectiveness of any, or file another, Registration Statement hereunder with respect thereto) for so long
as (a) a Registration Statement with respect to the sale of such Registrable Securities is declared effective by the Commission under
the Securities Act and such Registrable Securities have been disposed of by the Holder in accordance with such effective Registration
Statement, (b) such Registrable Securities have been previously sold in accordance with Rule 144, or (c) such securities
become eligible for resale without volume or manner-of-sale restrictions and without current public information pursuant to Rule 144
(assuming that such securities and any securities issuable upon exercise, conversion or exchange of which, or as a dividend upon which,
such securities were issued or are issuable, were at no time held by any Affiliate of the Company), as reasonably determined by the Company,
upon the advice of counsel to the Company.
“Registration Statement”
means any registration statement required to be filed hereunder pursuant to Section 2(a) and any additional registration
statements contemplated by Section 2(c), including (in each case) the Prospectus, amendments and supplements to any such registration
statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference
or deemed to be incorporated by reference in any such registration statement.
“Rule 415”
means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from
time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from
time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“SEC Guidance”
means (i) any publicly-available written or oral guidance of the Commission staff, or any comments, requirements or requests of the
Commission staff and (ii) the Securities Act.
“Selling Stockholder
Questionnaire” means a questionnaire in the form attached as Annex B hereto, or such other form of questionnaire as may
reasonably be adopted by the Company from time to time.
2. Resale
Registration.
(a) On
or prior to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all
of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-1 and shall contain substantially
the “Plan of Distribution” attached hereto as Annex A. Subject to the terms of this Agreement, the Company shall use its commercially
reasonable efforts to cause a Registration Statement filed under this Agreement to be declared effective under the Securities Act as promptly
as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its commercially
reasonable efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable
Securities covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be
sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance
with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written
opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”).
The Company shall promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than
the first Trading Day that the Company telephonically confirms effectiveness with the Commission. The Company shall, within two (2) Trading
Days after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
Failure to so notify the Holder within two (2) Trading Days of such notification of effectiveness or failure to file a final Prospectus
as foresaid shall be deemed an Event under Section 2(d).
(b) Notwithstanding
the registration obligations set forth in Section 2(a), if the Commission informs the Company that all of the Registrable
Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration
statement, the Company agrees to promptly inform each of the Holders thereof and use its commercially reasonable efforts to file amendments
to the Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to
be registered by the Commission, on Form S-1 or such other form available to register for resale the Registrable Securities as a
secondary offering, subject to the provisions of Section 2(e) with respect to filing on Form S-1 or other appropriate
form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages; provided, however,
that, prior to filing such amendment, the Company shall be obligated to use commercially reasonable efforts to advocate with the Commission
for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance
and Disclosure Interpretation 612.09.
(c) Notwithstanding
any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d), if the Commission
or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration
Statement as a secondary offering (and notwithstanding that the Company used commercially reasonable efforts to advocate with the Commission
for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its
Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows:
| a. | First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities;
and |
| b. | Second, the Company shall reduce Registrable Securities represented by Warrant Shares (applied, in the
case that some Warrant Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered Warrant
Shares held by such Holders). |
In the event of a cutback hereunder, the Company
shall give the Holder at least three (3) Trading Days prior written notice along with the calculations as to such Holder’s
allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, the Company will use its
commercially reasonable efforts to file with the Commission, as promptly as allowed by the Commission or SEC Guidance provided to the
Company or to registrants of securities in general, one or more registration statements on Form S-1 or such other form available
to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended.
(d) If:
(i) the Initial Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Registration
Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) herein
or the Company subsequently withdraws the filing of the Registration Statement, the Company shall be deemed to have not satisfied this
clause as of the Filing Date (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration
Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five Trading Days of the
date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that such Registration Statement will
not be “reviewed” or will not be subject to further review, or (iii) prior to the effective date of a Registration Statement,
the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of
such Registration Statement as promptly as practicable (but no later than fifteen (15)) calendar days after the receipt of comments by
or notice from the Commission that such amendment is required in order for such Registration Statement to be declared effective, or (iv) a
Registration Statement registering for resale all of the Registrable Securities is not declared effective by the Commission by the applicable
Effectiveness Date of the Registration Statement (provided if the Registration Statement does not allow for the resale of Registrable
Securities at prevailing market prices (i.e., only allows for fixed price sales), the Company shall have been deemed to have not satisfied
this clause) or (v) after the effective date of a Registration Statement, and except as provided in Section 3(c) hereof,
such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration
Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, for more
than ten (10) consecutive calendar days or more than an aggregate of twenty (20) calendar days (which need not be consecutive calendar
days) during any 12-month period (any such failure or breach being referred to as an “Event”, and for purposes of clauses
(i) and (iv), the date on which such Event occurs, and for purpose of clause (ii) the date on which such five (5) Trading
Day period is exceeded, and for purpose of clause (iii) the date which such fifteen (15) calendar day period is exceeded, and for
purpose of clause (v) the date on which such ten (10) or twenty (20) calendar day period, as applicable, is exceeded being referred
to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law,
on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by
such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages
and not as a penalty, equal to the product of 1.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to such
Holder’s Subscription Agreement provided, however, the aggregate amount payable to a Holder shall not exceed [5]%
of such Holder’s Subscription Amount. If the Company fails to pay any partial liquidated damages pursuant to this Section in
full within seven days after the date payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser maximum
amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are
due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof
shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event.
(e) Each
Holder agrees to furnish to the Company a completed Selling Stockholder Questionnaire not more than ten (10) Business Days following
the date of this Agreement. Each Holder further agrees that it shall not be entitled to be named as a selling security holder in the Registration
Statement or use the Prospectus for offers and resales of Registrable Securities at any time, unless such Holder has returned to the Company
a completed and signed Selling Stockholder Questionnaire. If a Holder of Registrable Securities returns a Selling Stockholder Questionnaire
after the deadline specified in the previous sentence, the Company shall use its commercially reasonable efforts to take such actions
as are required to name such Holder as a selling security holder in the Registration Statement or any pre-effective or post-effective
amendment thereto and to include (to the extent not theretofore included) in the Registration Statement the Registrable Securities identified
in such late Selling Stockholder Questionnaire; provided that the Company shall not be required to file an additional Registration Statement
solely for such shares. Each Holder acknowledges and agrees that the information in the Selling Stockholder Questionnaire will be used
by the Company in the preparation of the Registration Statement and hereby consents to the inclusion of such information in the Registration
Statement.
(f) Notwithstanding
anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as an
underwriter without the prior written consent of such Holder provided that if such disclosure is required by law and the Holder wishes
not to be named the Company may remove such Holder from the Registration Statement upon the Holder’s written consent.
3. Registration
Procedures.
In connection with the Company’s
registration obligations hereunder, the Company shall:
(a) Not
less than two (2) Trading Days prior to the filing of each Registration Statement and not less than one (1) Trading Day prior
to the filing of any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed
to be incorporated therein by reference), the Company shall (i) furnish to each Holder copies of all such documents proposed to be
filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the reasonable review
of such Holders, and (ii) use its commercially reasonable efforts to cause its officers and directors, counsel and independent registered
public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to each Holder,
to conduct a reasonable investigation within the meaning of the Securities Act. Notwithstanding the above, the Company shall not be obligated
to provide the Holders advance copies of any universal shelf registration statement registering securities in addition to those required
hereunder, or any Prospectus prepared thereto.
(b) (i) Prepare
and file with the Commission such amendments, including post-effective amendments, to a Registration Statement and the Prospectus used
in connection therewith as may be necessary to keep a Registration Statement continuously effective as to the applicable Registrable Securities
for the Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for
resale under the Securities Act all of the Registrable Securities, (ii) cause the related Prospectus to be amended or supplemented
by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant
to Rule 424, (iii) respond as promptly as reasonably practicable to any comments received from the Commission with respect to
a Registration Statement or any amendment thereto and provide as promptly as reasonably practicable to the Holders true and complete copies
of all correspondence from and to the Commission related to and/or applicable to a Holder in the reasonable opinion of the Company relating
to a Registration Statement (provided that, the Company shall excise any information contained therein which would constitute material
non-public information regarding the Company or any of its Subsidiaries), and (iv) comply in all material respects with the applicable
provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by a Registration
Statement during the Effectiveness Period in accordance (subject to the terms of this Agreement) with the intended methods of disposition
by the Holders thereof set forth in such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify
the Holders of Registrable Securities to be sold (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied
by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably practicable
(and, in the case of (i)(A) below, not less than one (1) Trading Day prior to such filing) and (if requested by any such Person)
confirm such notice in writing no later than one (1) Trading Day following the day (i)(A) when a Prospectus or any Prospectus
supplement or post-effective amendment to a Registration Statement is proposed to be filed, (B) when the Commission notifies the
Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on
such Registration Statement, and (C) with respect to a Registration Statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements
to a Registration Statement or Prospectus or for additional information, (iii) of the issuance by the Commission or any other federal
or state governmental authority of any stop order suspending the effectiveness of a Registration Statement covering any or all of the
Registrable Securities or the initiation of any Action for that purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction,
or the initiation or threatening of any Action for such purpose, (v) of the occurrence of any event or passage of time that makes
the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in a Registration
Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect
or that requires any revisions to a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement
or the Prospectus, as the case may be, it will not 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, in light of the circumstances under which they were made, not
misleading, and (vi) of the occurrence or existence of any pending corporate development with respect to the Company that the Company
believes may be material and that, in the determination of the Company, makes it not in the best interest of the Company to allow continued
availability of a Registration Statement or Prospectus, provided, however, in no event shall any such notice contain any
information which would constitute material, non-public information regarding the Company or any of its Subsidiaries and the Company agrees
that the Holders shall not have any duty of confidentiality to the Company or any of its Subsidiaries and shall not have any duty to the
Company or any of its Subsidiaries not to trade on the basis of such information.
(d) Use
its commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending
the effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any
of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) Furnish
to each Holder, without charge, at least one conformed copy of each such Registration Statement and each amendment thereto, including
financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested
by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the Commission; provided, that any such item which is available on the EDGAR system (or
successor thereto) need not be furnished in physical form.
(f) Subject
to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by
each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any
amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(c).
(g) Prior
to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with
the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such
Registrable Securities for the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States
as any Holder reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of
the Registrable Securities covered by each Registration Statement; provided, that, the Company shall not be required to qualify generally
to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction
where it is not then so subject or file a general consent to service of process in any such jurisdiction.
(h) If
requested by a Holder, cooperate with such Holder to facilitate the timely preparation and delivery of certificates representing Registrable
Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted
by the Subscription Agreement (solely with respect to Holders a party thereto) and applicable securities laws, of all restrictive legends,
and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holder may reasonably request.
(i) Upon
the occurrence of any event contemplated by Section 3(c), as promptly as reasonably practicable under the circumstances taking
into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature
disclosure of such event, prepare a supplement or amendment, including a post-effective amendment, to a Registration Statement or a supplement
to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, neither a Registration Statement nor such Prospectus will contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (iii) through
(vi) of Section 3(c) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have
been made, then the Holders shall suspend use of such Prospectus. [The Company shall be entitled to exercise its right under this Section to
suspend the availability of a Registration Statement and Prospectus [, subject to the payment of partial liquidated damages otherwise
required pursuant to Section 2(d),] for a period not to exceed [60] calendar days (which need not be consecutive days) in any 12-month
period.] The Company will use its commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly
as is practicable. In addition, if (i) there is material non-public information regarding the Company which the Company’s Board
of Directors (the “Board”) determines not to be in the Company’s best interest to disclose and which the Company
is not otherwise required to disclose, (ii) there is a significant business opportunity (including, but not limited to, the acquisition
or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction)
available to the Company which the Board determines not to be in the Company’s best interest to disclose, or (iii) the Company
is required to file a post-effective amendment to the Registration Statement to incorporate the Company’s quarterly and annual reports
and audited financial statements on Forms 10-Q and 10-K, then the Company may (x) postpone or suspend filing of a registration statement
for a period not to exceed forty-five (45) consecutive days or (y) postpone or suspend effectiveness of a registration statement
for a period not to exceed forty-five (45) consecutive days; provided that the Company may not postpone or suspend effectiveness
of a registration statement under this Section for more than sixty (60) days in the aggregate during any three hundred sixty (360)
day period; provided, however, that no such postponement or suspension shall be permitted for consecutive twenty (20) day
periods arising out of the same set of facts, circumstances or transactions.
(j) Otherwise
use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission under the Securities Act
and the Exchange Act, including, without limitation, Rule 172 under the Securities Act, file any final Prospectus, including any
supplement or amendment thereof, with the Commission pursuant to Rule 424 under the Securities Act, promptly inform the Holders in
writing if, at any time during the Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172 and, as
a result thereof, the Holders are required to deliver a Prospectus in connection with any disposition of Registrable Securities and take
such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder
(k) Comply
in all material respects with all applicable rules and regulations of the Commission.
(l) The
Company shall require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially
owned by such Holder and, if required by the Commission, the natural persons thereof that have voting and dispositive control over the
shares, pursuant to the Selling Stockholder Questionnaire. During any periods that the Company is unable to meet its obligations hereunder
with respect to the registration of the Registrable Securities solely because any Holder fails to furnish such information within the
Business Days of the Company’s request, any liquidated damages that are accruing at such time as to such Holder only shall be tolled
and any Event that may otherwise occur solely because of such delay shall be suspended as to such Holder only, until such information
is delivered to the Company.
4. Registration
Expenses. All fees and expenses incident to the performance of or compliance with, this Agreement by the Company shall be borne by
the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to
in the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses of the Company’s counsel and independent registered public accountants) (A) with respect to filings made
with the Commission, (B) with respect to filings required to be made with any Trading Market on which the Common Stock is then listed
for trading, (C) in compliance with applicable state securities or Blue Sky laws reasonably agreed to by the Company in writing (including,
without limitation, fees and disbursements of counsel for the Company in connection with Blue Sky qualifications or exemptions of the
Registrable Securities) and (D) if not previously paid by the Company in connection with an Issuer Filing, with respect to any filing
that may be required to be made by any broker through which a Holder intends to make sales of Registrable Securities with FINRA pursuant
to FINRA Rule 5110, so long as the broker is receiving no more than a customary brokerage commission in connection with such sale,
(ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company, (v) Securities Act liability insurance,
if the Company so desires such insurance, and (vi) fees and expenses of all other Persons retained by the Company in connection with
the consummation of the transactions contemplated by this Agreement. In addition, the Company shall be responsible for all of its internal
expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation,
all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit and the
fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange as required hereunder.
In no event shall the Company be responsible for any broker or similar commissions of any Holder or, except to the extent provided for
in the Transaction Documents, any legal fees or other costs of the Holders.
5. Indemnification.
(a) Indemnification
by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Holder, the
officers, directors, members, partners, agents, brokers (including brokers who offer and sell Registrable Securities as principal as a
result of a pledge or any failure to perform under a margin call of Common Stock), investment advisors and employees (and any other Persons
with a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title) of each
of them, each Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) and the officers, directors, members, stockholders, partners, agents and employees (and any other Persons with a functionally
equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title) of each such controlling Person,
to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, arising out
of or relating to (1) any untrue or alleged untrue statement of a material fact contained in a Registration Statement, any Prospectus
or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to
any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the
case of any Prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading or (2) any
violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or
regulation thereunder, in connection with the performance of its obligations under this Agreement, except to the extent, but only to the
extent, that (i) such untrue statements or omissions are based solely upon information regarding such Holder furnished in writing
to the Company by such Holder expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s
proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly
for use in a Registration Statement, such Prospectus or in any amendment or supplement thereto (it being understood that the Holder has
approved Annex A hereto for this purpose) or (ii) in the case of an occurrence of an event of the type specified in Section 3(c)(iii)-(vi),
the use by such Holder of an outdated, defective or otherwise unavailable Prospectus after the Company has notified such Holder in writing
that the Prospectus is outdated, defective or otherwise unavailable for use by such Holder and prior to the receipt by such Holder of
the Advice contemplated in Section 6(d). The Company shall notify the Holders promptly of the institution, threat or assertion
of any Action arising from or in connection with the transactions contemplated by this Agreement of which the Company is aware. Such indemnity
shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified person and shall survive
the transfer of any Registrable Securities by any of the Holders in accordance with Section 6(h).
(b) Indemnification
by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, its directors, officers, agents
and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act), and the directors, officers, agents or employees of such controlling Persons (and any other Persons with a functionally
equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title), to the fullest extent permitted
by applicable law, from and against all Losses, as incurred, to the extent arising out of or based solely upon: (x) such Holder’s
failure to comply with any applicable prospectus delivery requirements of the Securities Act through no fault of the Company or (y) any
untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus, or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or supplement thereto, in light
of the circumstances under which they were made) not misleading (i) to the extent, but only to the extent, that such untrue statement
or omission is contained in any information so furnished in writing by such Holder to the Company expressly for inclusion in such Registration
Statement or such Prospectus or (ii) to the extent, but only to the extent, that such information relates to such Holder’s
information provided in the Selling Stockholder Questionnaire or the proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use in a Registration Statement (it being understood that the
Holder has approved Annex A hereto for this purpose), such Prospectus or in any amendment or supplement thereto or (iii) in the case
of an occurrence of an event of the type specified in Section 3(c)(iii)-(vi), to the extent, but only to the extent, related
to the use by such Holder of an outdated, defective or otherwise unavailable Prospectus after the Company has notified such Holder in
writing that the Prospectus is outdated, defective or otherwise unavailable for use by such Holder and prior to the receipt by such Holder
of the Advice contemplated in Section 6(d), but only if and to the extent that following the receipt of the Advice the misstatement
or omission giving rise to such Loss would have been corrected. In no event shall the liability of any selling Holder under this Section 5(b) be
greater in amount than the dollar amount of the net proceeds (net of all expenses paid by such Holder in connection with any claim relating
to this Section and the amount of any damages such Holder has otherwise been required to pay by reason of this Section) received
by such Holder upon the sale of the Registrable Securities included in the Registration Statement giving rise to such indemnification
obligation.
(c) Conduct
of Indemnification Actions. If any Action shall be brought or asserted against any Person entitled to indemnity hereunder (an “Indemnified
Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”)
in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided,
that, the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities
pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal or further review) that such failure shall have materially and adversely prejudiced the Indemnifying
Party.
An Indemnified Party shall have
the right to employ separate counsel in any such Action and to participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such
fees and expenses, (2) the Indemnifying Party shall have failed promptly to assume the defense of such Action and to employ counsel
reasonably satisfactory to such Indemnified Party in any such Action, or (3) the named parties to any such Action (including any
impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to the Indemnified Party shall reasonably
believe that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying
Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at
the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable
fees and expenses of no more than one separate counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shall
not be liable for any settlement of any such Action effected without its written consent, which consent shall not be unreasonably withheld
or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending
Action in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified
Party from all liability on claims that are the subject matter of such Action.
Subject to the terms of this
Agreement, all reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in
connection with investigating or preparing to defend such Action in a manner not inconsistent with this Section) shall be paid to the
Indemnified Party, as incurred, within ten Trading Days of written notice thereof to the Indemnifying Party, provided that the Indemnified
Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such actions for which
such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further
review) not to be entitled to indemnification hereunder.
(d) Contribution.
If the indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified Party or insufficient
to hold an Indemnified Party harmless for any Losses, then each Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party
in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such 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 of a material
fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount
paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in this Agreement,
any reasonable attorneys’ or other fees or expenses incurred by such party in connection with any Action to the extent such party
would have been indemnified for such fees or expenses if the indemnification provided for in this Section was available to such party
in accordance with its terms.
The parties hereto agree that
it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation
or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), no Holder shall be required to contribute pursuant to this
Section 5(d), in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such Holder
from the sale of the Registrable Securities subject to the Action exceeds the amount of any damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.
The indemnity and contribution
agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties.
6. Miscellaneous.
(a) Remedies.
In the event of a breach by the Company or by a Holder of any of their respective obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery
of damages, shall be entitled to specific performance of its rights under this Agreement. Each of the Company and each Holder agrees that
monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions
of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall
not assert or shall waive the defense that a remedy at law would be adequate.
(b) No
Piggyback on Registrations; Prohibition on Filing Other Registration Statements. Except as set forth on Schedule 6(b) attached
hereto, neither the Company nor any of its security holders (other than the Holders in such capacity pursuant hereto) may include securities
of the Company in any Registration Statements other than the Registrable Securities. The Company shall not file any other registration
statements until all Registrable Securities are registered pursuant to a Registration Statement that is declared effective by the Commission,
provided that this Section 6(b) (i) shall not prohibit the Company from filing amendments to registration statements
filed prior to the date of this Agreement and (ii) shall not prohibit the Company from filing a shelf registration statement on Form S-3
for a primary offering by the Company, provided that the Company makes no offering of securities pursuant to such shelf registration statement
prior to the effective date of the Registration Statement required hereunder that includes all of the Registrable Securities.
(c) Compliance.
Each Holder covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to
it (unless an exemption therefrom is available) in connection with sales of Registrable Securities pursuant to a Registration Statement.
(d) Discontinued
Disposition. By its acquisition of Registrable Securities, each Holder agrees that, upon receipt of a notice from the Company of the
occurrence of any event of the kind described in Section 3(c)(iii) through (vi), such Holder will forthwith discontinue
disposition of such Registrable Securities under a Registration Statement until it is advised in writing (the “Advice”)
by the Company that the use of the applicable Prospectus (as it may have been supplemented or amended) may be resumed. The Company will
use its commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable.
(e) Piggy-Back
Registrations. If, at any time during the Effectiveness Period, there is not an effective Registration Statement covering all of the
Registrable Securities and the Company shall determine to prepare and file with the Commission a registration statement relating to an
offering for its own account or the account of others under the Securities Act of any of its equity securities, other than on Form S-4
or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely
in connection with any acquisition of any entity or business or equity securities issuable in connection with the Company’s stock
option or other employee benefit plans, then the Company shall deliver to each Holder a written notice of such determination and, if within
fifteen days after the date of the delivery of such notice, any such Holder shall so request in writing, the Company shall include in
such registration statement all or any part of such Registrable Securities such Holder requests to be registered; provided, however,
that the Company shall not be required to register any Registrable Securities pursuant to this Section 6(e) that are
eligible for resale pursuant to Rule 144 (without volume restrictions or current public information requirements) promulgated by
the Commission pursuant to the Securities Act or that are the subject of a then effective Registration Statement.
(f) Amendments
and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be given, unless the same shall be in writing and signed by the
Company and the Holders of at least a majority of the then outstanding Registrable Securities (for purposes of clarification, this includes
any Registrable Securities issuable upon exercise or conversion of any Security), provided that, if any amendment, modification or waiver
disproportionately and adversely impacts a Holder (or group of Holders), the consent of such disproportionately impacted Holder (or group
of Holders) shall be required. If a Registration Statement does not register all of the Registrable Securities pursuant to a waiver or
amendment done in compliance with the previous sentence, then the number of Registrable Securities to be registered for each Holder shall
be reduced pro rata among all Holders and each Holder shall have the right to designate which of its Registrable Securities shall be omitted
from such Registration Statement. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of a Holder or some Holders and that does not directly or indirectly affect the rights
of other Holders may be given only by such Holder or Holders of all of the Registrable Securities to which such waiver or consent relates;
provided, however, that the provisions of this sentence may not be amended, modified, or supplemented except in accordance
with the provisions of the first sentence of this Section. No consideration shall be offered or paid to any Person to amend or consent
to a waiver or modification of any provision of this Agreement unless the same consideration also is offered to all of the parties to
this Agreement.
(g) Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be delivered as set forth
in the Subscription Agreement.
(h) Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each Holder. The Company may not assign (except by merger) its rights or obligations hereunder
without the prior written consent of all of the Holders of the then outstanding Registrable Securities. Each Holder may assign their respective
rights hereunder to any Person to whom the Purchaser assigns or transfers any Registrable Securities, provided that such transferee agrees
in writing to be bound, with respect to the transferred Registrable Securities, by the provisions of this Agreement and any other Transaction
Document that applies to the Purchaser.
(i) No
Inconsistent Agreements. Neither the Company nor any of its Subsidiaries has entered, as of the date hereof, nor shall the Company
or any of its Subsidiaries, on or after the date of this Agreement, enter into any agreement with respect to its securities, that would
have the effect of impairing the rights granted to the Holders in this Agreement or otherwise conflicts in any material respect with the
provisions hereof. Except as set forth on Schedule 6(i), neither the Company nor any of its Subsidiaries has previously entered
into any agreement granting any registration rights with respect to any of its securities to any Person that have not been satisfied in
full.
(j) Execution
and Counterparts. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party,
it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission
or by e-mail delivery of a “.pdf” format data file or any electronic signature complying with the U.S. federal ESIGN Act of
2000 (e.g., www.docusign.com), such signature shall create a valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original
thereof.
(k) Governing
Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without giving
effect to any of the conflicts of law principles which would result in the application of the substantive law of another jurisdiction.
This Agreement shall not be interpreted or construed with any presumption against the party causing this Agreement to be drafted.
(l) Cumulative
Remedies. The remedies provided herein are cumulative and not exclusive of any other remedies provided by law.
(m) Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
(n) Headings.
The headings in this Agreement are for convenience only, do not constitute a part of the Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
(o) Independent
Nature of Holders’ Obligations and Rights. The obligations of each Holder hereunder are several and not joint with the obligations
of any other Holder hereunder, and no Holder shall be responsible in any way for the performance of the obligations of any other Holder
hereunder. Nothing contained herein or in any other agreement or document delivered at any closing, and no action taken by any Holder
pursuant hereto or thereto, shall be deemed to constitute the Holders as a partnership, an association, a joint venture or any other kind
of group or entity, or create a presumption that the Holders are in any way acting in concert or as a group or entity with respect to
such obligations or the transactions contemplated by this Agreement or any other matters. Each Holder shall be entitled to protect and
enforce its rights, including without limitation the rights arising out of this Agreement, and it shall not be necessary for any other
Holder to be joined as an additional party in any proceeding for such purpose. The use of a single agreement with respect to the obligations
of the Company contained was solely in the control of the Company, not the action or decision of any Holder, and was done solely for the
convenience of the Company and not because it was required or requested to do so by any Holder. It is expressly understood and agreed
that each provision contained in this Agreement is between the Company and a Holder, solely, and not between the Company and the Holders
collectively and not between and among Holders.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties
have executed this Registration Rights Agreement as of the date first written above.
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[SIGNATURE PAGE OF HOLDERS FOLLOWS]
[SIGNATURE PAGE OF HOLDERS TO RRA]
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[SIGNATURE PAGES CONTINUE]
Schedule 6(b)
Other Securities to be Included on the Registration Statement
[None.]
Annex A
Plan of Distribution
Each selling Stockholder (the
“Selling Stockholders”) of the securities and any of their pledgees, assignees and successors-in-interest may, from
time to time, sell any or all of their securities covered hereby on the principal Trading Market or any other stock exchange, market or
trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A Selling
Stockholder may use any one or more of the following methods when selling securities:
| · | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| · | block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the
block as principal to facilitate the transaction; |
| · | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| · | an exchange distribution in accordance with the rules of the applicable exchange; |
| · | privately negotiated transactions; |
| · | settlement of short sales entered into after the effective date of the registration statement of which this prospectus is a part; |
| · | in transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities at a
stipulated price per security; |
| · | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| · | a combination of any such methods of sale; or |
| · | any other method permitted pursuant to applicable law. |
The Selling Stockholders may
also sell securities under Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”), if available,
rather than under this prospectus.
Broker-dealers engaged by
the Selling Stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts
from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts
to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in excess of a
customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or markdown
in compliance with FINRA Rule 2121.
In connection with the sale
of the securities or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The Selling
Stockholders may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities
to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer
or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution
may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The Selling Stockholders and
any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning
of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any
profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities
Act. Each Selling Stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly
or indirectly, with any person to distribute the securities.
The Company is required to
pay certain fees and expenses incurred by the Company incident to the registration of the securities. The Company has agreed to indemnify
the Selling Stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to keep this prospectus
effective until the earlier of (i) the date on which the securities may be resold by the Selling Stockholders without registration
and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to
be in compliance with the current public information requirement under Rule 144 under the Securities Act or any other rule of
similar effect or (ii) the date on which all of the securities have been sold pursuant to this prospectus or Rule 144 under
the Securities Act or any other rule of similar effect. The resale securities will be sold only through registered or licensed brokers
or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may
not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
Under applicable rules and
regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in market
making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement
of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the Exchange Act and the rules and
regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of securities of the common stock by
the Selling Stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholders and have informed
them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with
Rule 172 under the Securities Act).
Annex B
REVELSTONE CAPITAL ACQUISITION CORP.
Selling Stockholder Notice and Questionnaire
The undersigned beneficial
owner of common stock (the “Registrable Securities”) of REVELSTONE CAPITAL ACQUISITION CORP., a Delaware corporation
(the “Company”), understands that the Company has filed or intends to file with the Securities and Exchange Commission
(the “Commission”) a registration statement (the “Registration Statement”) for the registration
and resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), of the Registrable
Securities, in accordance with the terms of the Registration Rights Agreement (the “Registration Rights Agreement”)
to which this document is annexed. A copy of the Registration Rights Agreement is available from the Company upon request at the address
set forth below. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights
Agreement.
In order to sell or otherwise
dispose of any Registrable Securities pursuant to the Registration Statement, a holder of Registrable Securities generally will be required
to be named as a selling stockholder in the related prospectus or a supplement thereto (as so supplemented, the “Prospectus”),
deliver the Prospectus to purchasers of Registrable Securities (including pursuant to Rule 172 under the Securities Act) and be bound
by the provisions of the Registration Rights Agreement (including certain indemnification provisions, as described below). Holders must
complete and deliver this Notice and Questionnaire in order to be named as selling stockholders in the Prospectus. Holders of Registrable
Securities who do not complete, execute and return this Notice and Questionnaire within ten (10) Business Days following the date
of the Agreement (1) will not be named as selling stockholders in the Resale Registration Statement or the Prospectus and (2) may
not use the Prospectus for resales of Registrable Securities.
Certain legal consequences
arise from being named as a selling stockholder in the Registration Statement and the related prospectus. Accordingly, holders and beneficial
owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or
not being named as a selling stockholder in the Registration Statement and the related prospectus.
NOTICE
The undersigned beneficial
owner (the “Selling Stockholder”) of Registrable Securities hereby elects to include the Registrable Securities owned
by it in the Registration Statement.
The undersigned hereby provides
the following information to the Company and represents and warrants that such information is accurate:
QUESTIONNAIRE
1. Name.
| (a) | Full Legal Name of Selling Stockholder |
| (b) | Full Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities
are held: |
| (c) | Full Legal Name of Natural Control Person (which means a natural person who directly or indirectly alone
or with others has power to vote or dispose of the securities covered by this Questionnaire): |
2. Address
for Notices to Selling Stockholder:
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| Telephone: |
| Email: |
| Fax: |
| Contact Person: |
3. Broker-Dealer
Status:
| (a) | Are you a broker-dealer? |
Yes
¨ No ¨
| (b) | If “yes” to Section 3(a), did you receive your Registrable Securities as compensation
for investment banking services to the Company? |
Yes
¨ No ¨
Note: If
“no” to Section 3(b), the Commission’s staff has indicated that you should be identified as an underwriter
in the Registration Statement.
| (c) | Are you an affiliate of a broker-dealer? |
Yes
¨ No ¨
| (d) | If you are an affiliate of a broker-dealer, do you certify that you purchased the Registrable Securities
in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements
or understandings, directly or indirectly, with any person to distribute the Registrable Securities? |
Yes
¨ No ¨
Note: If
“no” to Section 3(d), the Commission’s staff has indicated that you should be identified as an underwriter
in the Registration Statement.
4. Beneficial
Ownership of Securities of the Company Owned by the Selling Stockholder.
Except as set forth below in this
Item 4, the undersigned is not the beneficial or registered owner of any securities of the Company other than the securities issuable
pursuant to the Subscription Agreement.
| (a) | Type and Amount of other securities beneficially owned by the Selling Stockholder: |
| (b) | Number of shares of Common Stock to be registered pursuant to this Notice for resale: |
5. Relationships
with the Company:
Except as set forth below, neither
the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5% of more of the equity securities
of the undersigned) has held any position or office or has had any other material relationship with the Company (or its predecessors or
affiliates) during the past three years.
State any exceptions here:
The undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof
at any time while the Registration Statement remains effective.
By signing below, the undersigned
consents to the disclosure of the information contained herein in its answers to Items 1 through 5 and the inclusion of such information
in the Registration Statement and the related prospectus and any amendments or supplements thereto. The undersigned understands that such
information will be relied upon by the Company in connection with the preparation or amendment of the Registration Statement and the related
prospectus and any amendments or supplements thereto.
IN WITNESS WHEREOF the undersigned,
by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized
agent.
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Exhibit 99.1
Set Jet to Become
Public Via Merger with Revelstone Capital Acquisition Corp.
~ Proposed Business
Combination Includes $18 Million in Fully Committed Financing, Including a Pre-PIPE of $4 Million and a PIPE of $14 Million from Coleman
Group ~
~ Membership
Technology Company Operates Unique Asset-Light, Subscription-Based Model ~
~ Seasoned Aviation
Professional and CEO Tom Smith to Continue Leading Combined Company, Revelstone and Coleman to Join Combined Company Board of Directors
~
~ Merger with
Revelstone, Pre-PIPE, and PIPE Supports Set Jet’s Growth Strategy ~
~ Timing of Proposed
Business Combination Supported by Business Fundamentals, Mounting Competitive Moat and Expansive TAM ~
SCOTTSDALE, AZ,
and NEW YORK, NY, July 18, 2023 - Set Jet, Inc. (“Set Jet”), a membership-based private jet charter program, and Revelstone
Capital Acquisition Corp. (“RCAC”) (NASDAQ: RCAC), a publicly traded special purpose acquisition company, announced
today that they have entered into a definitive agreement and plan of merger (the “Proposed Business Combination). Upon closing
of the Proposed Business Combination, expected in the fourth quarter of 2023, the newly combined company (the “Company”)
will operate as Set Jet and plans to continue listing on the Nasdaq Stock Market LLC under the symbol SJET. The Proposed Business Combination
reflects an implied pro-forma enterprise value for Set Jet of approximately $80 million plus an additional $65 million earnout for Set
Jet shareholders and management.
Most recently,
RCAC entered into an amendment to the investment management trust agreement to extend the time to complete a business combination until
December 21, 2023, on a month-to-month basis. At June 30, 2023, there was approximately $36.8 million remaining in the RCAC trust account,
subject to possible redemption at the closing of the Proposed Business Combination.
Set Jet membership
has no long-term contracts or commitments, operating on a simple monthly subscription that grants members the luxury, convenience, comfort,
and privacy of flying private for a cost comparable to that of a first-class commercial ticket among the West Coast’s top destinations.
Set Jet has exclusive use of five wide-body Bombardier Challenger 850 aircraft, designed to deliver a superior in-air experience. To
better understand the Set Jet offering, please find FAQs accessible here.
Set Jet CEO, Tom
Smith, stated, “Today marks a very important milestone for our Company. As we embark on a journey that will result in Set Jet becoming
a publicly traded company, I look to the incredible support from our membership base, our commitment to what we believe are strong business
fundamentals, and the shortage of competitive solutions as a catalyst for timing in entering the public space. Today’s announcement
and partnership with RCAC will enable Set Jet access to the capital markets to further expand and build on our unique and differentiated
model and allow us to increase flights between current cities, open new routes, and continue to grow.”
Morgan
Callagy, Co-CEO of RCAC, commented, “The announcement of the union between RCAC and Set Jet is truly the result of an
extremely thorough vetting process. Upon the launch of RCAC, our management team had one very defined goal we committed to adhere
to; to find a target that would deliver a unique value proposition for our shareholders. We believe our qualifiers are evident in
Set Jet’s business model. Importantly, the leadership team of Set Jet embodies a true passion for the business, having been
founded and led by seasoned aviation professionals. I could not be more pleased with the result of our process and encouraged by the
financial commitment of the Coleman Group with their $18 million investment.”
“We are pleased
to become strategic investors in Set Jet as we share the collective vision of bringing private aviation to a wider audience of the traveling
public in the Unites States and eventually to the UK and Eurozone,” said Matt McClean, CEO of the London-based Coleman Group.
Proposed Business
Combination Overview
Under the terms
of the Proposed Business Combination, RCAC will combine with Set Jet, and in connection with the business combination, Set Jet will become
a publicly traded entity under the name “Set Jet” and symbol SJET. The Proposed Business Combination reflects an implied
pro-forma enterprise value at closing of approximately $80 million, plus an additional $65 million earnout for Set Jet shareholders and
management.
The cash component
of the consideration will be funded by RCAC’s $36.8 million cash in trust, net of any redemptions, as well as an $18.0 million
private placement from Coleman, in the form of a pre-PIPE of $4 million which will be invested prior to closing, and a PIPE of $14 million
at Closing.
Completion of the
Proposed Business Combination is subject to approval by RCAC stockholders, the effectiveness of an S-4 registration statement to be filed
with the Securities and Exchange Commission (the “SEC”) in connection with the Proposed Business Combination, and
other customary closing conditions, including the receipt of certain regulatory approvals. The Proposed Business Combination is expected
to close in the fourth quarter of 2023.
Additional information,
including a copy of the business combination agreements, will be provided in a Current Report on Form 8-K to be filed by RCAC with the
Securities and Exchange Commission (“SEC”) at the SEC’s website at www.sec.gov/ and on the RCAC website at http://revelstonecapital.com/.
Set Jet Investment
Highlights
| · | Company
run by seasoned public company and aviation professionals, including certified ATP pilot
and founder of TASER (Nasdaq: AXON), CEO and co-founder, Tom Smith, who will continue to
lead the combined Company, seasoned public company CFO, Jim Barnes, COO and co-founder, Trey
Smith with over two decades of private aviation expertise, and aviation enthusiast and aircraft
owner Steve Reynolds, founder of the Yard House restaurant chain, serving as Chairman of
the Board. |
| · | Total
Addressable Market (“TAM”) of over 1 billion seats |
| · | Consistent
year-over-year revenue growth |
| · | Set
Jet model combines “best-in-class” business models designed to disrupt and improve
luxury private air travel |
| · | Company
has carved out its own niche with what it believes to be a differentiated and compelling
value proposition with a cost-effective membership ($99.95 one-time security check fee, $99.95
monthly membership fee, and per-seat flights starting at approximately $750.00) |
| · | Each
aircraft in the fleet carries 13 to 16 passengers and since inception, Set Jet has flown
over 31,000 passengers on 6,100+ flights |
| · | Set
Jet’s objective is to solve the pain points of commercial travel, offering members
the opportunity to “buy a seat, not the jet” |
| · | Differentiated
by its asset-light business model with five-year exclusive charter access |
| o | Aircraft
leased to charter operators supports asset-light model, optimizing ownership and investment
utilization |
| o | Cost-effective
and luxurious aircraft |
| o | Charter
operators have 60 years of combined professional aviation experience |
| · | Set
Jet’s proprietary booking engine technology provides a smooth member booking experience,
including a multi-year process being tested and reviewed by the Federal Aviation Administration
(“FAA”) and the U.S. Department of Transportation (“DOT”) prior to
entering the marketplace |
| · | Growing
loyal membership base combined with high retention and limited memberships available produces
predictable recurring monthly membership revenue |
| · | Currently
serving Aspen, Cabo San Lucas, Las Vegas, Los Angeles, Orange County, Salt Lake City, Scottsdale
with dedicated hubs in Scottsdale and Las Vegas |
Advisors
Roth Capital Partners
is acting as financial advisor to RCAC and placement agent on the private placement. CHW Strategic Advisors is acting as Set Jet’s
M&A advisor on the transaction. Loeb & Loeb, LLP is acting as legal counsel to RCAC. Snell & Wilmer, LLP is acting as legal
counsel to Set Jet.
About Set Jet,
Inc.
Set Jet, Inc. is
a membership-driven technology company facilitating luxurious “buy a seat, not the jet” private jet charters for its Members
to enjoy the ultimate travel experience at a fraction of the cost of a typical private jet charter. Set Jet’s proprietary technology
platform enables security pre-screened and approved Members to self-aggregate and share a private jet charter between frequently traveled
destinations to many of the West Coast’s top destinations including Aspen, Cabo San Lucas, Las Vegas, Los Angeles, Orange County,
San Diego, Salt Lake City, and Scottsdale. The Company’s asset-light business model means it neither owns nor operates any aircraft.
Professional Part 135 on-demand charter operator partners provide aircraft for Member charters, pilots, and related aircraft services.
The Company liaisons between its Members and the charter operator to help seamlessly assure a positive Member experience. The Company
also staffs cabin hostesses for each flight and its ground operations personnel assist Member travelers with their charter journey. For
more information please visit: https://setjet.com/.
About Revelstone
Capital Acquisition Corp.
Revelstone Capital
Acquisition Corp. is a blank check company whose business purpose is to affect a merger, capital stock exchange, asset acquisition, stock
purchase, reorganization or similar business combination with one or more businesses or entities. The Company is led by its Co-Chief
Executive Officers, Morgan Callagy and Daniel Neukomm. For more information please visit: http://revelstonecapital.com/.
About Coleman
Group
Coleman
Group is an alternative investment firm headquartered in London. Coleman Group offer single and multi-manager hedge fund solutions
to professional and institutional investors. Coleman Group is structured to offer bespoke investment solutions tailored to an
investors’ risk and return objectives. Coleman Group also run segregated managed accounts for clients seeking
tailored single manager or multi-manager solutions.
Important Information
About the Proposed Business Combination and Where to Find It
In connection with
the proposed Merger, RCAC intends to file preliminary and definitive proxy statements with the SEC. The preliminary and definitive proxy
statements and other relevant documents will be sent or given to the stockholders of RCAC as of the record date established for voting
on the proposed Merger and will contain important information about the proposed Merger and related matters. Stockholders of RCAC and
other interested persons are advised to read, when available, the preliminary proxy statement and any amendments thereto and, once available,
the definitive proxy statement, in connection with RCACs’ solicitation of proxies for the meeting of stockholders to be held to
approve, among other things, the proposed Merger because the proxy statement will contain important information about RCAC, Set Jet and
the proposed Merger. When available, the definitive proxy statement will be mailed to RCAC stockholders as of a record date to be established
for voting on the proposed Merger. Stockholders will also be able to obtain copies of the proxy statement, without charge, once available,
at the SEC’s website at www.sec.gov or by directing a request to RCAC as set forth below.
Participants
in the Solicitation
RCAC, Set Jet,
and their respective directors and officers may be deemed to be participants in the solicitation of proxies from RCACs’ stockholders
in connection with the Proposed Business Combination. Information about the directors and executive officers of RCAC and a description
of their interests in RCAC and the Proposed Business Combination are set forth in RCAC’s Annual Report on Form 10-K for the year
ended December 31, 2022, and which can be obtained free of charge from the sources indicated above. Information regarding the persons
who may, under SEC rules, be deemed participants in the solicitation of proxies to RCAC’s stockholders in connection with the Proposed
Business Combination will be set forth in the proxy statement/prospectus for the Proposed Business Combination, when available. Additional
information regarding the interests of participants in the solicitation of proxies in connection with the Proposed Business Combination
will be included in the proxy statement/prospectus that RCAC intends to file with the SEC. You may obtain free copies of these documents
as described above.
Important Cautions
Regarding Forward-Looking Statements
The disclosure
herein includes certain statements that are not historical facts but are forward-looking statements for purposes of the safe harbor
provisions under the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements generally are
accompanied by words such as “believe,” “may,” “will,” “estimate,”
“continue,” “anticipate,” “intend,” “expect,” “should,”
“would,” “plan,” “project,” “forecast,” “predict,”
“potential,” “seem,” “seek,” “future,” “outlook,” and similar
expressions that predict or indicate future events or trends or that are not statements of historical matters, but the absence of
these words does not mean that a statement is not forward looking. These forward-looking statements include, but are not limited to,
(1) statements regarding estimates and forecasts of other financial, performance and operational metrics and projections of market
opportunity; (2) references with respect to the anticipated benefits of the Proposed Business Combination and the projected future
financial performance of Set Jet following the Proposed Business Combination; (3) changes in the market for Set Jet’s services
and technology, expansion plans and opportunities; (4) Set Jet’s unit economics; (5) the sources and uses of cash in
connection with the Proposed Business Combination; (6) the anticipated capitalization and enterprise value of the combined company
following the consummation of the Proposed Business Combination; (7) the projected technological developments of Set Jet; (8)
current and future potential commercial and customer relationships; (9) the ability to operate efficiently at scale; (10)
anticipated investments in capital resources and research and development, and the effect of these investments; (11) the amount of
redemption requests made by RCAC’s public shareholders; (12) the ability of the combined company to issue equity or
equity-linked securities in the future; (13) the failure to achieve the minimum cash at closing requirements; (14) the inability to
obtain or maintain the listing of the combined company’s common stock on Nasdaq following the Proposed Business Combination,
including but not limited to redemptions exceeding anticipated levels or the failure to meet Nasdaq's initial listing standards in
connection with the consummation of the Proposed Business Combination; and (15) expectations related to the terms and timing of the
Proposed Business Combination. These statements are based on various assumptions, whether or not identified in this press release,
and on the current expectations of RCAC’s and Set Jet’s management and are not predictions of actual performance. These
forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on
by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and
circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are
beyond the control of RCAC and Set Jet. These forward-looking statements are subject to a number of risks and uncertainties, as set
forth in the section entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements” in
RCAC’s Annual Report on Form 10-K for the year ended December 31, 2022, which was filed with the SEC on March 27, 2023 and in
RCAC’s IPO prospectus, dated December 16, 2021, and in the Registration Statement and the other documents that RCAC has filed,
or will file, with the SEC relating to the Proposed Business Combination. If any of these risks materialize or our assumptions prove
incorrect, actual results could differ materially from the results implied by these forward-looking statements. The risks and
uncertainties above are not exhaustive, and there may be additional risks that neither RCAC nor Set Jet presently know or that RCAC
and Set Jet currently believe are immaterial that could also cause actual results to differ from those contained in the
forward-looking statements. In addition, forward-looking statements reflect RCAC’s and Set Jet’s expectations, plans or
forecasts of future events and views as of the date of this press release. RCAC and Set Jet anticipate that subsequent events and
developments will cause RCAC’s and Set Jet’s assessments to change. However, while RCAC and Set Jet may elect to update
these forward-looking statements at some point in the future, RCAC and Set Jet specifically disclaim any obligation to do so. These
forward-looking statements should not be relied upon as representing RCAC’s and Set Jet’s assessments as of any date
subsequent to the date of this press release. Accordingly, undue reliance should not be placed upon the forward-looking
statements.
No Offer or
Solicitation
This press release
is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the Proposed
Business Combination and shall not constitute an offer to sell or a solicitation of an offer to buy the securities of RCAC, the Company
or the combined company, nor shall there be any sale of any such securities in any state or jurisdiction in which such offer, solicitation,
or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offer of
securities shall be made except by means of a prospectus meeting the requirements of the Securities Act of 1933, as amended, or an exemption
therefrom.
Contacts
Revelstone Capital
Acquisition Corp
Morgan Callagy
Co-Chief Executive
Officer
14350 Myford Road
Irvine, CA 92606
morgan@revelstonecap.com
949.428.2888
Set Jet Investor
Relations
Shannon Devine
MZ North America
SetJet@mzgroup.us
203.741.8811
Set Jet Media
Olivia Jones
Director of Marketing
marketing@setjet.com
480.264.6500
Source: Set
Jet, Revelstone Capital Acquisition Corp.
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