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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 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): January 17, 2024

 

 

DIRECT SELLING ACQUISITION CORP.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-40831   86-3676785
(State or other jurisdiction
of incorporation)
 

(Commission

File Number)

  (IRS Employer
Identification No.)

 

5800 Democracy Drive

Plano, TX

  75024
(Address of principal executive offices)   (Zip Code)

(214) 380-6020

(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:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Trading
Symbol(s)

 

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   DSAQ.U   The New York Stock Exchange
Class A common stock, par value $0.0001 per share   DSAQ   The New York Stock Exchange
Redeemable warrants, each warrant exercisable for one share of Class A common stock at an exercise price of $11.50 per share   DSAQ.W   OTC

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

 

 

 


Item 1.01

Entry Into a Material Definitive Agreement.

On January 17, 2024, Direct Selling Acquisition Corp., a Delaware corporation (the “Company”), entered into a Business Combination Agreement (the “Business Combination Agreement”), by and among Aeroflow Urban Air Mobility Private Limited, a private limited company incorporated under the laws of India and a direct wholly owned subsidiary of PubCo (“IndiaCo”), Hunch Technologies Limited, a private limited company incorporated in Ireland with registered number 607449 (“PubCo”), FlyBlade (India) Private Limited, a private limited company incorporated under the laws of India (“Hunch Mobility”), and HTL Merger Sub LLC, a Delaware limited liability company and a direct wholly owned subsidiary of PubCo (“Merger Sub”).

The transactions contemplated by the Business Combination Agreement, including the Merger (as defined below), and the transactions contemplated by the related transaction documents contemplated by the Business Combination Agreement (collectively, the “Transactions”), will constitute a “Business Combination” as contemplated by the Company’s Amended and Restated Certificate of Incorporation filed with the Delaware Secretary of State on August 23, 2021 (as amended on March 27, 2023). The Merger and the Transactions were unanimously approved by the board of directors of the Company on January 17, 2024. Capitalized terms used but not defined in this Current Report on Form 8-K have the meanings given to them in the Business Combination Agreement.

The Business Combination Agreement

Reorganization Transactions

Prior to the execution of the Business Combination Agreement, PubCo, IndiaCo and Hunch Mobility consummated a series of reorganization transactions pursuant to which, among other things, Hunch Mobility transferred all of its assets and liabilities (other than certain excluded assets and liabilities) to IndiaCo on a slump sale basis as a going concern.

In connection with the Merger, prior to the closing of the Transactions (the “Closing”), PubCo will complete a reorganization (such transactions, the “Pre-Closing Reorganization”), pursuant to which, among other things, (i) after receipt of applicable governmental and regulatory consents, Hunch Mobility shall transfer all of the equity securities of Transhermes Aero IFSC Private Limited, a wholly owned subsidiary of Hunch Mobility incorporated in Gujarat International Finance Tec-City under the (Indian) International Financial Services Centres Authority Act, 2019 to IndiaCo, (ii) Hunch Mobility shall promptly undertake any and all steps necessary to complete its voluntary liquidation/winding-up process in accordance with applicable law and (iii) PubCo shall consummate a reverse share split, pursuant to which all equity securities of PubCo will, following the consummation of the Pre-Closing Reorganization and immediately prior to the Merger, be consolidated and result in the aggregate number of Class A ordinary shares in the share capital of PubCo (the “PubCo Class A Ordinary Shares”) and Class B ordinary shares in the share capital of PubCo (the “PubCo Class B Ordinary Shares”) issued and outstanding on a fully-diluted, as converted and as exercised basis (excluding equity securities issued or issuable pursuant to the Convertible Note (as defined below)) being equal to the Pre-Closing Reorganization Consideration, which, in the aggregate, is anticipated to be equal to approximately $150 million.

The Merger

Following the Pre-Closing Reorganization and pursuant to the Business Combination Agreement, at the Closing, Merger Sub will merge with and into the Company (the “Merger”), pursuant to which the separate corporate existence of Merger Sub will cease, with the Company being the surviving corporation and becoming a wholly owned subsidiary of PubCo.

 


In connection with the Merger, each (i) share of Class A common stock of the Company, par value $0.0001 per share (each, a “DSAQ Class A Share”), (ii) share of Class B common stock of the Company, par value $0.0001 per share (each, a “DSAQ Class B Share”), and (iii) convertible preferred share of the Company that will be issued pursuant to the Investor Subscription Agreement (as defined below) (each, a “DSAQ Preferred Share” and together with the DSAQ Class A Shares and DSAQ Class B Shares, the “DSAQ Shares”), issued and outstanding immediately prior to the effective time of the Merger (the “Effective Time”), other than those held in treasury, will be automatically cancelled and extinguished and converted into the right to receive: (A) with respect to each DSAQ Class A Share and DSAQ Class B Share, one (1) PubCo Class A Ordinary Share, one (1) CVR I, one (1) CVR II and one (1) CVR III, which are described in further detail below, and (B) with respect to each DSAQ Preferred Share, one (1) PubCo Preferred Share. All DSAQ Shares held in treasury will be canceled and extinguished without consideration.

Each unit of the Company issued in the IPO that is outstanding immediately prior to the Effective Time will be automatically separated and the holder thereof will be deemed to hold one (1) DSAQ Class A Share and one-half (1/2) of a public warrant of the Company, which underlying securities will be converted as described above.

At the Effective Time, unless otherwise amended by the DSAQ Warrant Amendment, without any further action, each warrant of the Company that is outstanding immediately prior to the Effective Time shall remain outstanding but shall be assumed by PubCo and automatically adjusted to become (A) with respect to each public warrant of the Company, one (1) public warrant of PubCo and (B) with respect to each private placement warrant of the Company, one (1) private placement warrant of PubCo, each of which shall be subject to substantially the same terms and conditions applicable prior to such conversion; except that each such warrant shall be exercisable (or will become exercisable in accordance with its terms) for (i) one (1) PubCo Class A Ordinary Share, (ii) one (1) CVR I, (iii) one (1) CVR II and (iv) one (1) CVR III, in lieu of DSAQ Class A Shares (subject to the PubCo warrant agreement). If the DSAQ Warrant Amendment is approved, then immediately prior to the Effective Time, each warrant of the Company will automatically convert into one-fifth (1/5) of one DSAQ Class A Share (with no fractional shares being issued if less than five (5) warrants are held).

Registration Statement/Proxy Statement

In connection with the Transactions, the Company and PubCo will prepare and file a registration statement on Form F-4 (the “Registration Statement/Proxy Statement”) with the SEC, which will include a prospectus of PubCo and a proxy statement/prospectus for the Company’s stockholder meeting to solicit the vote of the Company’s stockholders to, among other things, adopt the Business Combination Agreement and approve the Transactions.

In addition, as promptly as practicable following the time at which the Registration Statement/Proxy Statement is declared effective under the Securities Act, the Company will solicit the vote or consent of registered holders of warrants of the Company to adopt and approve an amendment to the Company’s warrant agreement to provide that, effective immediately prior to the Effective Time, each warrant of the Company will automatically convert into one-fifth (1/5) of one DSAQ Class A Share (with no fractional shares being issued if less than five (5) warrants are held).

Representations, Warranties and Covenants

The parties to the Business Combination Agreement have made representations, warranties and covenants that are customary for transactions of this nature. The representations and warranties of the respective parties to the Business Combination Agreement will not survive the Closing. The covenants of the respective parties to the Business Combination Agreement will also not survive the Closing, except for those covenants that by their terms expressly apply in whole or in part after the Closing.

 


In connection with the foregoing, the Company, through its board of directors, shall recommend to the Company’s stockholders and warrantholders the adoption and approval of the Business Combination Agreement and the transactions contemplated thereby (including the Merger), and the approval and adoption of the DSAQ Warrant Amendment, respectively. Notwithstanding the foregoing, if, at any time prior to obtaining the requisite approval of the Company’s stockholders with respect to the Business Combination, the Company’s board of directors determines in good faith, after consultation with its outside legal counsel, that a Blade Group Material Adverse Effect has occurred on or after the date of the Business Combination Agreement and, as a result, the failure to change its recommendation would be inconsistent with the board of directors’ fiduciary duties under applicable law, the Company’s board of directors may effect a change of recommendation, subject to certain conditions.

Exclusivity

Each of the Company, PubCo, IndiaCo, Hunch Mobility and Merger Sub has agreed that from the date of the Business Combination Agreement to the earlier of the closing of the Merger and the termination of the Business Combination Agreement, no party will: (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), knowingly facilitate (including by commencing due diligence), discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to an alternative transaction, (ii) furnish or disclose any non-public information to any person in connection with, or that could reasonably be expected to lead to, an alternative transaction, (iii) enter into any contract or other arrangement or understanding regarding an alternative transaction, (iv) make any filings with the SEC in connection with a public offering of any equity securities or other securities of the Blade Group (or any affiliate or successor of the Blade Group) or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any person (other than the Principal Shareholders and the Blade Group) to do or seek to do any of the foregoing or seek to circumvent such covenant or further any alternative transaction.

Conditions to Closing

Mutual Conditions

The obligations of the parties to the Business Combination Agreement to consummate the Transactions are conditioned upon the following mutual conditions:

 

  a)

the absence of any law or other legal restraint or prohibition issued by any court of competent jurisdiction or other governmental authority preventing the consummation of the Transactions;

 

  b)

the effectiveness under the Securities Act of 1933, as amended (the “Securities Act”), of the Registration Statement/Proxy Statement and that no stop order will have been issued by the SEC and remain in effect with respect to the Registration Statement/Proxy Statement;

 

  c)

obtaining, at the special meeting of Company stockholders where a quorum is present, the vote of the holders of a majority of the outstanding DSAQ Shares entitled to vote thereon to adopt and approve the Business Combination Agreement and the transactions contemplated thereby (including the Merger);

 

  d)

the PubCo Class A Ordinary Shares that constitute the consideration for the Business Combination having been approved for listing on a stock exchange, subject only to notice of issuance;

 

  e)

the entry by PubCo into a composition agreement with the Revenue Commissioners of Ireland and a special eligibility agreement for securities with the Depositary Trust Company in respect of PubCo Class A Ordinary Shares and, if the Company’s warrants are assumed pursuant to the Business Combination Agreement, PubCo warrants, both of which shall be in full force and effect and enforceable in accordance with their respective terms; and

 

  f)

PubCo, DSAC Partners LLC, a Delaware limited liability company (“Sponsor”), and the Principal Shareholders (as defined below) shall have executed a registration rights agreement, containing customary demand and piggyback registration rights, in a form reasonably acceptable to PubCo, the Sponsor and the Principal Shareholders.

 


Conditions of PubCo, IndiaCo, Hunch Mobility and Merger Sub

The obligations of PubCo, IndiaCo, Hunch Mobility and Merger Sub to consummate the Transactions are conditioned upon, among other things:

 

  a)

the consummation of the transactions contemplated by the Investor Subscription Agreement (as defined below); and

 

  b)

An affiliate of Investor (as defined below) being the beneficial owner of at least 955,100 DSAQ Class A Shares and not electing to have such DSAQ Class A Shares redeemed by the Company in connection with the Company’s special meeting.

Conditions of the Company

The obligations of the Company to consummate the Transactions are conditioned upon, among other things:

 

  a)

the absence of a Blade Group Material Adverse Effect;

 

  b)

the Pre-Closing Reorganization having been completed; and

 

  c)

the consummation of the transactions contemplated by the Hunch Subscription Agreement.

Termination

The Business Combination Agreement may be terminated at any time prior to the Closing by mutual written consent of the Company and PubCo and in certain other circumstances, including if the Closing has not occurred on or prior to March 28, 2024 (subject to automatic extension to June 28, 2024 in the event that the Company obtains an extension of the deadline by which the Company must complete a business combination in accordance with its governing documents) and the primary cause of the failure for the Closing to have occurred on or prior to such date is not due to a breach of the Business Combination Agreement by the party seeking to terminate.

The foregoing description of the Business Combination Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Business Combination Agreement, a copy of which is included as Exhibit 2.1 to this Current Report on Form 8-K, and incorporated herein by reference. The Business Combination Agreement contains representations, warranties and covenants that the respective parties made to each other as of the date of such agreement or other specific dates. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract among the respective parties to the Business Combination Agreement and are subject to important qualifications and limitations agreed to by the contracting parties in connection with negotiating the Business Combination Agreement. The Business Combination Agreement has been attached to provide investors with information regarding its terms. It is not intended to provide any other factual information about the Company or any other party to the Business Combination Agreement. In particular, the representations, warranties, covenants and agreements contained in the Business Combination Agreement, which were made only for purposes of the Business Combination Agreement and as of specific dates, were solely for the benefit of the respective parties to the Business Combination Agreement, may be subject to limitations agreed upon by the parties thereto (including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the respective parties to the Business Combination Agreement instead of establishing these matters as facts) and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to the Company’s investors and security holders. Company investors and security holders are not third-party beneficiaries under the Business Combination Agreement and should not rely on the representations,

 


warranties or covenants of any party to the Business Combination Agreement. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Business Combination Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures.

Note Purchase Agreement and Convertible Notes

Concurrently with the execution and delivery of the Business Combination Agreement, PubCo entered into a convertible note purchase agreement (the “Note Purchase Agreement”) with an investor with majority economic, non-voting interest in the Sponsor (“Investor” or the “Holder”), and IndiaCo, pursuant to which PubCo will issue to the Holder three senior unsecured convertible notes with an aggregate principal amount of $3,000,000 (each a “Convertible Note”, and together the “Convertible Notes”). Within twenty-four (24) hours of the execution of the Business Combination Agreement, or at such other time and place upon which the parties shall agree in writing (the “Initial Closing Date”), PubCo shall execute and deliver a Convertible Note with an aggregate principal amount of $1,000,000 to the Holder, which is automatically convertible into 100,000 PubCo Preferred Shares upon the Effective Time (the “Initial Convertible Note”). Following the Initial Closing Date, PubCo shall execute and deliver, and the Holder shall fund, two additional Convertible Notes in two monthly installments at subsequent closings (each an “Installment Closing”). The two Installment Closings shall be held: (i) on the day one (1) month following the Initial Closing Date and (ii) on the day two (2) months following the Initial Closing Date, at such time and place as shall be approved by PubCo and the Holder, with an additional aggregate principal amount of $2,000,000 on the same terms and conditions as those contained in the Initial Convertible Note. The PubCo Preferred Shares issuable upon conversion of the Convertible Notes, pursuant to their terms, shall be convertible into PubCo Class A Ordinary Shares. Interest shall accrue on the unpaid principal balance of each Convertible Note, together with any interest accrued but unpaid thereon (the “Outstanding Amount”), at an annual rate equal to 10% per annum, until the Outstanding Amount is paid or the closing of the Business Combination. Each Convertible Note’s first interest payment date will be the first three-month anniversary of the date of each respective Convertible Note. Pursuant to the Note Purchase Agreement, the proceeds from the issuance of the Convertible Notes will be used: (i) up to $750,000 solely for working capital purposes for the operation of IndiaCo’s business, (ii) the remaining aggregate proceeds of the Convertible Notes other than the proceeds used in accordance with clause (i) solely for the acquisition of aircraft and (iii) in each case of clauses (i) and (ii) in compliance with all applicable laws.

The Outstanding Amount of each Convertible Note shall be automatically due and payable in full on the date that is the earlier of (1) three (3) business days following the termination of the Business Combination Agreement and (2) 363 days from the date of issuance of each respective Convertible Note (as applicable, the “Maturity Date”). If PubCo fails to pay any amount due pursuant to each Convertible Note within five business days of each respective Maturity Date, interest shall accrue at the rate of 17% per annum on the Outstanding Amount until the entire Outstanding Amount is paid in full.

The foregoing descriptions of the Note Purchase Agreement and Convertible Notes do not purport to be complete and are qualified in their entirety by reference to the full text of the Note Purchase Agreement and form of Convertible Note. A copy of the Note Purchase Agreement is included as Exhibit 10.1 to this Current Report on Form 8-K and a copy of the form of Convertible Note is included as Exhibit A of the Note Purchase Agreement, each of which is incorporated herein by reference.

Investor Subscription Agreement

Concurrently with the execution and delivery of the Business Combination Agreement, the Company entered into a subscription agreement (the “Investor Subscription Agreement”) with Investor.

 


Pursuant to the Investor Subscription Agreement, Investor agreed to subscribe for and purchase, and the Company agreed to issue and sell to Investor, immediately prior to the Closing, an aggregate of 700,000 DSAQ Preferred Shares for a purchase price of $10.00 per share, for aggregate gross proceeds of $7,000,000.

The closing of the Investor Subscription Agreement will be conditioned on (i) the consummation of the transactions contemplated by the Hunch Subscription Agreement and (ii) the consummation of additional investments in an aggregate investment amount of $12,000,000 (“Minimum Additional Investment”), for DSAQ Preferred Shares, DSAQ Class A Shares, PubCo Preferred Shares or PubCo Ordinary Shares, issued to investors (the “Additional Investors”), on terms and conditions that are not materially more advantageous to any such Additional Investors than Investor hereunder, unless such terms and conditions are consented to by Investor. For avoidance of doubt, the Minimum Additional Investment shall not include any investments pursuant to the Investor Subscription Agreement, the acquisition of the Retained Shares (as defined the Investor Subscription Agreement) or the Hunch Subscription Agreement.

The Investor Subscription Agreement contains customary conditions to closing, including, among other things, the consummation of the Business Combination. The Investor Subscription Agreement also provides that the Company will grant Investor certain customary registration rights.

The foregoing description of the Investor Subscription Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Investor Subscription Agreement, a copy of which is included as Exhibit 10.2 to this Current Report on Form 8-K and incorporated herein by reference.

Hunch Subscription Agreement

Concurrently with the execution and delivery of the Business Combination Agreement, Quick Response Services Provider LLP (“QRSP”) entered into a subscription agreement (the “Hunch Subscription Agreement”) with PubCo.

Pursuant to the Hunch Subscription Agreement, QRSP agreed to subscribe for and purchase, and PubCo agreed to issue and sell to QRSP, immediately prior to the Closing, an aggregate of 300,000 PubCo Preferred Shares for a purchase price of $10.00 per share, for aggregate gross proceeds of $3,000,000.

The closing of the Hunch Subscription Agreement will be conditioned on the consummation of the transactions contemplated by the Investor Subscription Agreement. The Hunch Subscription Agreement also contains customary conditions to closing, including, among other things, the consummation of the Business Combination. The Hunch Subscription Agreement also provides that PubCo will grant QRSP certain customary registration rights.

The foregoing description of the Hunch Subscription Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Hunch Subscription Agreement, a copy of which is included as Exhibit 10.3 to this Current Report on Form 8-K and incorporated herein by reference.

Principal Shareholder Support Agreement

Concurrently with the execution and delivery of the Business Combination Agreement, the Company, Quick Response Services Provider LLP, a limited liability partnership incorporated under the laws of India (“Hunch”), and Blade Urban Air Mobility Inc., a Delaware corporation (together with Hunch, the

 


Principal Shareholders” and each, a “Principal Shareholder”), and PubCo have entered into that Principal Shareholder Support Agreement (the “Principal Shareholder Support Agreement”) pursuant to which each Principal Shareholder has agreed, among other things: (i) to support and vote or consent to the requisite transaction proposals and (ii) not to transfer any equity security of PubCo until the earlier to occur of (a) the Closing, (b) such date and time as the Business Combination Agreement is validly terminated in accordance with its terms and (c) the mutual agreement of the parties thereto, in each case subject to the terms and conditions set forth therein.

The foregoing description of the Principal Shareholder Support Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Principal Shareholder Support Agreement, a copy of which is included as Exhibit 10.4 to this Current Report on Form 8-K and incorporated herein by reference.

Sponsor Support Agreement

Concurrently with the execution and delivery of the Business Combination Agreement, the Sponsor, the Company, PubCo and, for certain limited purposes, certain of the Company’s directors, executive officers and affiliates (such individuals, the “Insiders”) have entered into a Sponsor Support Agreement (the “Sponsor Support Agreement”).

Pursuant to the Sponsor Support Agreement, the Sponsor has, among other things, agreed to (i) support and vote in favor of the requisite transaction proposals; (ii) waive all adjustments to the conversion ratio set forth in Company’s amended and restated certificate of incorporation with respect to its DSAQ Class B Shares, (iii) be bound by certain transfer restrictions with respect to their DSAQ Class B Shares and the warrants of the Company, as applicable, prior to Closing and (iv) the forfeiture, transfer or conversion into DSAQ Class A Shares, as applicable of warrants of the Company under the terms and conditions set forth therein. Specifically, the Sponsor has agreed to make available up to 9,950,000 private placement warrants of the Company (or, if the DSAQ Warrant Amendment is approved, the PubCo Class A Ordinary Shares corresponding thereto) to existing stockholders of the Company in exchange for such stockholders agreeing not to redeem their DSAQ Class A Shares in connection with the Company’s stockholder meeting. If less than all such private placement warrants (or, if the DSAQ Warrant Amendment is approved, the PubCo Class A Ordinary Shares corresponding thereto) are so transferred, then the Sponsor shall (i) retain 50% of such private placement warrants not so transferred and (ii) forfeit 50% of such private placement warrants not so transferred. If the DSAQ Warrant Amendment is not approved, any such retained private placement warrants may, at the Sponsor’s election, be surrendered to the Company prior to the Closing in exchange for one (1) DSAQ Class A Share for every five (5) private placement warrants so surrendered. If the DSAQ Warrant Amendment is approved, each such private placement warrant retained will automatically convert into one-fifth (1/5) of one DSAQ Class A Share (with no fractional shares being issued if less than five (5) warrants are held).

The foregoing description of the Sponsor Support Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Sponsor Support Agreement, a copy of which is included as Exhibit 10.5 to this Current Report on Form 8-K and incorporated herein by reference.

Contingent Value Rights Agreement

Concurrently with the consummation of the Business Combination Agreement, PubCo will enter into a Contingent Value Rights Agreement (the “CVR Agreement”) with a rights agent (“Rights Agent”) pursuant to which the holders of DSAQ Class A Shares and DSAQ Class B Shares outstanding as of immediately prior to the Effective Time will receive one (1) CVR I, one (1) CVR II and one (1) CVR III (each, a “CVR”) for each one whole DSAQ Share held by such stockholder on such date. Each CVR I represents the right of the holder thereof to receive its pro rata share of 2,000,000 newly issued PubCo

 


Class A Ordinary Shares, and each CVR I shall be exercised automatically upon PubCo’s delivery of the CVR Payment Notice (as defined in the CVR Agreement) to the Rights Agent, notifying the Rights Agent that, during the 12 month period ending on the final day of the month in which the second anniversary of the Closing occurs, the consolidated revenues of PubCo and its subsidiaries was less than $50 million. Each CVR II represents the right of the holder thereof to receive its pro rata share of 2,000,000 newly issued PubCo Class A Ordinary Shares, and each CVR II shall be exercised automatically upon PubCo’s delivery of the CVR Payment Notice to the Rights Agent, notifying the Rights Agent that, during the 12 month period ending on the final day of the month in which the third anniversary of the Closing occurs, the consolidated revenues of PubCo and its subsidiaries was less than $142 million. Each CVR III represents the right of the holder thereof to receive its pro rata share of 2,000,000 newly issued PubCo Class A Ordinary Shares, and each CVR III shall be exercised automatically upon PubCo’s delivery of the CVR Payment Notice, notifying the Rights Agent that, during the 12 month period ending on the final day of the month in which the fourth anniversary of the Closing occurs, the consolidated revenues of PubCo and its subsidiaries was less than $263 million.

The contingent payments under the CVR Agreement, if they become payable, will become payable to the Rights Agent for subsequent distribution to the holders of the CVRs. There can be no assurance that any payment of any PubCo Ordinary Shares will be made or that any holders of CVRs will receive any amounts with respect thereto.

The right to the contingent payments contemplated by the CVR Agreement is a contractual right only. The CVRs will not be evidenced by a certificate or other instrument. The CVRs will not be transferable. The CVRs will not have any voting or dividend rights and will not represent any equity or ownership interest in PubCo or any of its affiliates. No interest will accrue on any amounts payable in respect of the CVRs.

The foregoing description of the CVR Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the CVR Agreement, a copy of which is included as Exhibit E to the Business Combination Agreement in Exhibit 2.1 to this Current Report on Form 8-K, each of which are incorporated herein by reference.

 

Item 3.02

Unregistered Sales of Equity Securities.

The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K is incorporated by reference herein. The Convertible Note issued pursuant to the Note Purchase Agreement and shares of Convertible Preferred Stock to be issued pursuant to the Investor Subscription Agreement, have not been registered under the Securities Act in reliance upon the exemption provided in Section 4(a)(2) thereof. The PubCo Preferred Shares to be issued pursuant to the Hunch Subscription Agreement, have not been registered under the Securities Act in reliance upon the exemption provided in Regulation S thereof.

 

Item 7.01

Regulation FD Disclosure.

On January 18, 2024, the Company and Hunch Mobility issued a joint press release in the United States announcing the execution of the Business Combination Agreement. A copy of the press release is furnished herewith as Exhibits 99.1 and incorporated herein by reference.

Furnished herewith as Exhibit 99.2 and incorporated into this Item 7.01 by reference herein is the investor presentation, dated January 2024, that the Company and Hunch Mobility have prepared in connection with the announcement of the Business Combination.

Additional Information about the Transaction and Where to Find It.

This filing relates to the proposed business combination involving the Company, Hunch Mobility, IndiaCo, PubCo and Merger Sub. In connection with the proposed business combination, the Company

 


and PubCo intend to file with the SEC a Registration Statement/Proxy Statement, which will include a preliminary proxy statement/ prospectus of the Company and a preliminary prospectus of PubCo relating to the shares to be issued in connection with the proposed business combination. This filing is not a substitute for the Registration Statement/Proxy Statement, the definitive proxy statement/final prospectus or any other document that PubCo or the Company has filed or will file with the SEC or send to its stockholders in connection with the proposed business combination. This filing does not contain all the information that should be considered concerning the proposed business combination and other matters and is not intended to form the basis for any investment decision or any other decision in respect of such matters.

BEFORE MAKING ANY VOTING OR INVESTMENT DECISION, THE COMPANY’S STOCKHOLDERS AND OTHER INTERESTED PARTIES ARE URGED TO READ THE PROXY STATEMENT/PROSPECTUS WHEN IT BECOMES AVAILABLE AND ANY AMENDMENTS THERETO AND ANY OTHER DOCUMENTS FILED BY THE COMPANY OR PUBCO WITH THE SEC IN CONNECTION WITH THE PROPOSED BUSINESS COMBINATION OR INCORPORATED BY REFERENCE THEREIN IN THEIR ENTIRETY BEFORE MAKING ANY VOTING OR INVESTMENT DECISION WITH RESPECT TO THE PROPOSED BUSINESS COMBINATION BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED BUSINESS COMBINATION AND THE PARTIES TO THE PROPOSED BUSINESS COMBINATION.

After the Registration Statement/Proxy Statement is declared effective, the definitive proxy statement will be mailed to stockholders of the Company as of a record date to be established for voting on the proposed business combination. Additionally, the Company and PubCo will file other relevant materials with the SEC in connection with the Business Combination. Copies of the Registration Statement/Proxy Statement, the definitive proxy statement/final prospectus and all other relevant materials for the proposed business combination filed or that will be filed with the SEC may be obtained, when available, free of charge at the SEC’s website at www.sec.gov. The Company’s stockholders may also obtain copies of the definitive proxy statement/prospectus, when available, without charge, by directing a request to Direct Selling Acquisition Corp., 5800 Democracy Drive, Plano, TX 75024.

Participants in the Solicitation of Proxies

This filing may be deemed solicitation material in respect of the proposed business combination. The Company, Hunch Mobility, IndiaCo, PubCo, Merger Sub and their respective directors and executive officers, under SEC rules, may be deemed to be participants in the solicitation of proxies from the Company’s stockholders in connection with the proposed business combination. Security holders and investors may obtain more detailed information regarding the names and interests in the proposed business combination of the Company’s directors and officers in the Company’s filings with the SEC, including the Company’s initial public offering prospectus, which was filed with the SEC on September 27, 2021, the Company’s subsequent annual report on Form 10-K and quarterly reports on Form 10-Q. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of proxies to the Company’s stockholders in connection with the business combination will be included in the definitive proxy statement/prospectus relating to the proposed business combination when it becomes available. You may obtain free copies of these documents, when available, as described in the preceding paragraphs.

No Offer or Solicitation

This filing is for information purposes only and is not intended to and does not constitute, or form part of, an offer, invitation or the solicitation of an offer or invitation to purchase, otherwise acquire, subscribe for, sell or otherwise dispose of any securities, or the solicitation of any vote or approval in any

 


jurisdiction, pursuant to the proposed business combination or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. The proposed business combination will be implemented solely pursuant to the Business Combination Agreement, filed as an exhibit to this Current Report on Form 8-K, which contains the full terms and conditions of the proposed business combination. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act.

Forward-Looking Statements

All statements other than statements of historical facts contained in this filing are forward-looking statements. Forward-looking statements may generally be identified by the use of words such as “anticipate,” “believe,” “envision,” “estimate,” “expect,” “intend,” “may,” “plan,” “predict,” “project,” “target,” “potential,” “will,” “would,” “could,” “should,” “continue,” “contemplate” or the negative or plural of these words, or other similar expressions that are predictions or indicate future events or prospects, although not all forward-looking statements contain these words. These forward-looking statements include, but are not limited to, statements regarding the financial position, business strategy and the plans and objectives of management for future operations including as they relate to the proposed business combination and related transactions, pricing and market opportunity, the satisfaction of closing conditions to the proposed business combination and related transactions, the level of redemptions by the Company’s public stockholders and the timing of the completion of the proposed business combination, including the anticipated closing date of the proposed business combination and the use of the cash proceeds therefrom. These statements are based on various assumptions, whether or not identified in this filing, and on the current expectations of the Company, IndiaCo, Hunch Mobility and PubCo’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 may differ from such assumptions, and such differences may be material. Many actual events and circumstances are beyond the control of the Company, IndiaCo, Hunch Mobility and PubCo.

These forward-looking statements are subject to a number of risks and uncertainties, including (i) changes in domestic and foreign business, market, financial, political and legal conditions; (ii) the inability of the parties to successfully or timely consummate the proposed business combination, including the risk that any required regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect the combined company or the expected benefits of the proposed business combination, or that the approval of the stockholders of Hunch Mobility or the Company is not obtained; (iii) the ability to acquire and maintain the listing of PubCo’s securities on a stock exchange ; (iv) the inability to complete any private placement financing, the amount of any private placement financing or the completion of any private placement financing with terms unfavorable to you; (v) the risk that the proposed business combination disrupts current plans and operations the Company, Hunch Mobility, IndiaCo or PubCo as a result of the announcement and consummation of the proposed business combination and related transactions; (vi) the risk that any of the conditions to closing of the business combination are not satisfied in the anticipated manner or on the anticipated timeline or are waived by any of the parties thereto; (vii) the failure to realize the anticipated benefits of the proposed business combination and related transactions, which may be affected by, among other things, the ability of the PubCo to grow and manage growth profitably, grow its customer base and retain its management and key employees; (viii) risks relating to the uncertainty of the costs related to the proposed business combination; (ix) risks related to the rollout of Hunch Mobility, IndiaCo and PubCo’s business strategy and the timing of expected business milestones, including, but not limited to, the use of electrical vertical aircraft; (x) Hunch Mobility’s limited operating history and history of net losses; (xi) the evolution and growth of the markets in which PubCo operates; (xii) changes in applicable laws or regulations; (xiii) the

 


ability of PubCo to adhere to legal and regulatory requirements and to receive any needed regulatory approvals or licenses; (xiv) cybersecurity risks, data loss and other breaches of PubCo’s network security and the disclosure of personal information; (xv) the effects of competition on Hunch Mobility, IndiaCo and PubCo’s business; (xvi) risks related to domestic and international political and macroeconomic uncertainty, including the continued economic growth of the Indian sub-continent, the impacts of climate change, the Russia-Ukraine conflict, consumer preferences, supply chain issues and inflation; (xvii) risks related to PubCo’s third party aircraft operators; (xviii) PubCo’s reliance on technology leased from Blade Air Mobility, Inc.; (xix) the limited geographic scope of PubCo’s operations to the Indian sub-continent; (xx) the outcome of any legal proceedings that may be instituted against Hunch Mobility, IndiaCo, the Company, PubCo or any of their respective directors or officers, following the announcement of the proposed business combination; (xxi) the amount of redemption requests made by the Company’s public stockholders; (xxii) the ability of the Company to issue equity, if any, in connection with the proposed business combination or to otherwise obtain financing in the future; (xxiii) risks related to Hunch Mobility, IndiaCo and PubCo’s industry; and (xxiv) those factors discussed in the Company’s Annual Report on Form 10-K for the year ended December 31, 2022 and subsequent Quarterly Reports on Form 10-Q, in each case, under the heading “Risk Factors,” and other documents of the Company or PubCo to be filed with the SEC, including the proxy statement/prospectus. If any of these risks materialize or Hunch Mobility, IndiaCo, PubCo’s or the Company’s assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. There may be additional risks that Hunch Mobility, IndiaCo, PubCo and the Company do not presently know or that they 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 the Company, Hunch Mobility, IndiaCo and PubCo’s expectations, plans or forecasts of future events and views as of the date of this filing. The Company, Hunch Mobility, IndiaCo and PubCo anticipate that subsequent events and developments will cause their assessments to change. The Company, Hunch Mobility, IndiaCo and PubCo undertake no obligation to update any forward-looking statements made in this communication to reflect events or circumstances after the date of this presentation or to reflect new information or the occurrence of unanticipated events, except as required by law. However, while the Company, Hunch Mobility, IndiaCo or PubCo may elect to update these forward-looking statements at some point in the future, each of them specifically disclaim any obligation to do so, unless required by applicable law. If the Company, Hunch Mobility, IndiaCo or PubCo do update one or more forward looking statements, no inference should be drawn that they will make additional updates thereto or with respect to other forward-looking statements. These forward-looking statements should not be relied upon as representing the Company Hunch Mobility, IndiaCo or PubCo’s assessments as of any date subsequent to the date of this filing. Accordingly, undue reliance should not be placed upon the forward-looking statements. The Company, Hunch Mobility, IndiaCo and PubCo may not actually achieve the plans, intentions, or expectations disclosed in these forward-looking statements, and you should not place undue reliance on these forward-looking statements. These forward-looking statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures, or investments.

 

Item 9.01

Financial Statements and Exhibits.

(d)    Exhibits. The following exhibits are provided as part of this Form 8-K:

 

Exhibit
No.

  

Description

2.1    Business Combination Agreement, dated as of January 17, 2024, by and among Direct Selling Acquisition Corp., Aeroflow Urban Air Mobility Private Limited, Hunch Technologies Limited, FlyBlade (India) Private Limited and HTL Merger Sub LLC.

 


10.1    Note Purchase Agreement, dated as of January 17, 2024, by and among Aeroflow Urban Air Mobility Private Limited, Hunch Technologies Limited, FlyBlade (India) Private Limited and Antara Capital Master Fund LP
10.2    Investor Subscription Agreement, dated as of January 17, 2024, by and between Direct Selling Acquisition Corp. and Antara Capital Master Fund LP.
10.3    Hunch Subscription Agreement, dated as of January 17, 2024, by and between Quick Response Services Provider LLP and Hunch Technologies Limited.
10.4    Principal Shareholder Agreement, dated as of January 17, 2024, by and among Direct Selling Acquisition Corp., Hunch Technologies Limited and certain Principal Shareholders.
10.5    Sponsor Support Agreement, dated as of January 17, 2024, by and among DSAC Partners LLC, Direct Selling Acquisition Corp., Hunch Technologies Limited, and other parties.
99.1    Press Release, dated January 18, 2024.
99.2    Investor Presentation, dated January 2024.

 

Certain of the exhibits and schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). The Company agrees to furnish supplementally a copy of all omitted exhibits and schedules to the SEC upon its request.

 


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

Dated: January 18, 2024     DIRECT SELLING ACQUISITION CORP.
    By:  

/s/ Dave Wentz

    Name:   Dave Wentz
    Title:   Chairman and Chief Executive Officer

Exhibit 2.1

 

 

 

BUSINESS COMBINATION AGREEMENT

by and among

DIRECT SELLING ACQUISITION CORP.,

AEROFLOW URBAN AIR MOBILITY PRIVATE LIMITED,

HUNCH TECHNOLOGIES LIMITED,

FLYBLADE (INDIA) PRIVATE LIMITED

and

HTL MERGER SUB LLC,

dated as of

January 17, 2024

 

 

 


TABLE OF CONTENTS

 

         Page  
 

ARTICLE I

  
 

CERTAIN DEFINITIONS

  
Section 1.01  

Definitions

     4  
Section 1.02  

Construction

     26  
Section 1.03  

Knowledge

     27  
Section 1.04  

Equitable Adjustments

     27  
 

ARTICLE II

  
 

THE MERGER AND RELATED TRANSACTIONS; CLOSING

  
Section 2.01  

The Transactions

     28  
Section 2.02  

Closing

     30  
Section 2.03  

Withholding Rights

     31  
Section 2.04  

Fractional Shares

     32  
Section 2.05  

PubCo Class B Ordinary Share Consideration and Redesignation to PubCo Class A Ordinary Shares

     32  
 

ARTICLE III

  
 

REPRESENTATIONS AND WARRANTIES RELATING TO THE BLADE GROUP

  
Section 3.01  

Corporate Organization; Due Authorization

     34  
Section 3.02  

Governing Documents

     35  
Section 3.03  

Consents and Requisite Governmental Approvals; No Violations

     35  
Section 3.04  

Capitalization

     36  
Section 3.05  

Subsidiaries

     37  
Section 3.06  

Financial Statements

     38  
Section 3.07  

Undisclosed Liabilities

     38  
Section 3.08  

Litigation

     38  
Section 3.09  

Compliance with Laws

     39  
Section 3.10  

Material Contracts

     40  
Section 3.11  

Blade Group Benefit Plans

     44  
Section 3.12  

Labor Matters

     45  
Section 3.13  

Taxes

     46  
Section 3.14  

Insurance

     48  
Section 3.15  

Permits

     49  
Section 3.16  

Property

     49  
Section 3.17  

Intellectual Property; IT Security; Data Privacy

     51  
Section 3.18  

Environmental Matters

     53  
Section 3.19  

Absence of Changes

     54  
Section 3.20  

Transactions with Affiliates

     54  
Section 3.21  

Brokers

     54  
Section 3.22  

Business Activities

     54  
Section 3.23  

Investment Company Act

     55  
Section 3.24  

Information Supplied

     55  
Section 3.25  

Hunch Reorganization

     55  

 

i


 

ARTICLE IV

  
 

REPRESENTATIONS AND WARRANTIES RELATING TO DSAQ

  
Section 4.01  

Corporate Organization

     57  
Section 4.02  

Due Authorization

     57  
Section 4.03  

Consents and Requisite Government Approvals; No Violations

     57  
Section 4.04  

Capitalization

     58  
Section 4.05  

Trust Account

     59  
Section 4.06  

SEC Filings

     60  
Section 4.07  

Internal Controls; Listing; Financial Statements

     60  
Section 4.08  

No Undisclosed Liabilities

     62  
Section 4.09  

Litigation

     62  
Section 4.10  

Compliance with Laws

     62  
Section 4.11  

Material Contracts

     62  
Section 4.12  

Business Activities

     63  
Section 4.13  

Employee Benefit Plans

     63  
Section 4.14  

Taxes

     63  
Section 4.15  

Absence of Changes

     64  
Section 4.16  

Transactions with Affiliates

     64  
Section 4.17  

Investment Company Act

     65  
Section 4.18  

DSAQ Recommendation

     65  
Section 4.19  

Brokers

     65  
Section 4.20  

Information Supplied

     65  
 

ARTICLE V

  
 

COVENANTS OF THE BLADE GROUP

  
Section 5.01  

Conduct of Business of the Blade Group During the Interim Period

     65  
Section 5.02  

Trust Account Waiver

     70  
Section 5.03  

DSAQ D&O Indemnification and Insurance

     70  
Section 5.04  

Blade Group D&O Indemnification and Insurance

     71  
Section 5.05  

Financial Information

     72  
Section 5.06  

Stock Exchange Listing

     73  
Section 5.07  

Pre-Closing Reorganization

     73  
Section 5.08  

Employee Matters

     74  
Section 5.09  

Termination of Blade Group Related Party Contracts

     74  
Section 5.10  

Hunch Reorganization

     74  
Section 5.11  

Indian Foreign Exchange Control Laws

     74  
Section 5.12  

Re-Registration of PubCo

     74  
Section 5.13  

Approval of this Agreement

     74  
Section 5.14  

Capital Reduction

     74  
Section 5.15  

Intellectual Property and Data Protection

     75  

 

ii


 

ARTICLE VI

  
 

COVENANTS OF DSAQ

  
Section 6.01  

Conduct of DSAQ During the Interim Period

     75  
Section 6.02  

Shareholder Litigation

     77  
Section 6.03  

DSAQ Public Filings

     77  
Section 6.04  

Trust Account Proceeds and Redemptions

     77  
Section 6.05  

De-Listing

     77  
Section 6.06  

No Change of Recommendation

     77  
 

ARTICLE VII

  
 

JOINT COVENANTS

  
Section 7.01  

Post-Closing PubCo Board

     78  
Section 7.02  

Efforts to Consummate

     79  
Section 7.03  

PIPE Subscriptions

     80  
Section 7.04  

Registration Statement/Proxy Statement; DSAQ Special Meeting; Warrantholder Meeting

     81  
Section 7.05  

Exclusive Dealing

     83  
Section 7.06  

Tax Matters

     85  
Section 7.07  

Confidentiality; Access to Information; Publicity; Notification of Certain Matters

     86  
Section 7.08  

Post-Closing Cooperation; Further Assurances

     89  
Section 7.09  

Extension

     89  
 

ARTICLE VIII

  
 

CONDITIONS TO OBLIGATIONS

  
Section 8.01  

Conditions to Obligations of the Parties

     90  
Section 8.02  

Additional Conditions to the Obligations of PubCo, IndiaCo, Blade India and Merger Sub

     90  
Section 8.03  

Additional Conditions to Obligations of DSAQ

     91  
Section 8.04  

Frustration of Conditions

     92  
 

ARTICLE IX

  
 

TERMINATION

  
Section 9.01  

Termination

     92  
Section 9.02  

Effect of Termination

     93  
 

ARTICLE X

  
 

MISCELLANEOUS

  
Section 10.01  

Waiver

     94  
Section 10.02  

Notices

     94  
Section 10.03  

Assignment

     95  
Section 10.04  

Rights of Third Parties

     95  
Section 10.05  

Expenses

     95  
Section 10.06  

Governing Law

     96  
Section 10.07  

Captions; Counterparts

     96  
Section 10.08  

Exhibits and Schedules

     96  
Section 10.09  

Entire Agreement

     96  
Section 10.10  

Amendments    

     97  

 

iii


Section 10.11  

Severability

     97  
Section 10.12  

Jurisdiction

     97  
Section 10.13  

Waiver of Jury Trial

     97  
Section 10.14  

Enforcement

     98  
Section 10.15  

Non-Recourse

     98  
Section 10.16  

Nonsurvival of Representations, Warranties and Covenants

     98  
Section 10.17  

Acknowledgements

     99  
Section 10.18  

Conflicts and Privilege

     100  

EXHIBITS

 

Exhibit A

   Form of Principal Shareholder Support Agreement

Exhibit B

   Form of Sponsor Support Agreement

Exhibit C

   Pre-Closing Reorganization

Exhibit D

   Form of PubCo New Articles of Association

Exhibit E

   Form of CVR Agreement

 

iv


BUSINESS COMBINATION AGREEMENT

THIS BUSINESS COMBINATION AGREEMENT (this “Agreement”) is made and entered into as of January 17, 2024, by and among Direct Selling Acquisition Corp., a Delaware corporation (“DSAQ”), Aeroflow Urban Air Mobility Private Limited, a private limited company incorporated under the laws of India and a direct wholly owned Subsidiary of PubCo (“IndiaCo”), Hunch Technologies Limited, a private limited company incorporated in Ireland with registered number 607449 (“PubCo”), FlyBlade (India) Private Limited, a private limited company incorporated under the laws of India (“Blade India”), and HTL Merger Sub LLC, a Delaware limited liability company and a direct wholly owned Subsidiary of PubCo (“Merger Sub”). DSAQ, IndiaCo, Hunch, Blade US, PubCo, Blade India and Merger Sub are collectively referred to herein as the “Parties” and each individually as a “Party”.

RECITALS

WHEREAS, (a) DSAQ is a blank check company incorporated as a Delaware corporation for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one (1) or more businesses, (b) PubCo is a company owned by Quick Response Services Provider LLP, a company incorporated and registered in India (“Hunch”), and Blade Urban Air Mobility Inc., a Delaware corporation (“Blade US” and, together with Hunch, the “Principal Shareholders” and each, a “Principal Shareholder”), and (c) each of Merger Sub and IndiaCo is a newly incorporated, direct wholly owned Subsidiary of PubCo;

WHEREAS, pursuant to DSAQ’s Governing Documents, DSAQ is required to provide an opportunity for its stockholders to have their outstanding DSAQ Class A Shares redeemed on the terms and subject to the conditions set forth therein in connection with obtaining the Required DSAQ Stockholder Approval at the Special Meeting;

WHEREAS, concurrently with the execution of this Agreement, the Principal Shareholders are entering into support agreements (each, a “Principal Shareholder Support Agreement”), substantially in the form attached hereto as Exhibit A, pursuant to which, among other things, the Principal Shareholders are agreeing to (a) support the Transactions and (b) be bound by certain transfer restrictions with respect to any Equity Securities of PubCo held by the Principal Shareholders prior to the consummation of the Transactions, in each case, subject to the terms and conditions set forth in such Principal Shareholder Support Agreement;

WHEREAS, concurrently with the execution of this Agreement, DSAC Partners LLC, a Delaware limited liability company (“Sponsor”), is entering into the support agreement substantially in the form attached hereto as Exhibit B (the “Sponsor Support Agreement”), pursuant to which, among other things, Sponsor is agreeing to (a) support and vote in favor of all of the Transaction Proposals, (b) waive all adjustments to the conversion ratio set forth in DSAQ’s Governing Documents with respect to its DSAQ Class B Shares, (c) be bound by certain transfer restrictions with respect to their DSAQ Class B Shares and DSAQ Warrants, as applicable, prior to Closing and (d) the forfeiture, transfer or conversion into DSAQ Class A Shares, as applicable, of the number of DSAQ Warrants as specified in the Sponsor Support Agreement;

 

1


WHEREAS, concurrently with the execution of this Agreement, certain investment vehicles affiliated with Antara Capital LP (collectively, “Antara”) and DSAQ are entering into a subscription agreement (the “Antara Subscription Agreement”) pursuant to which, among other things, Antara is agreeing to subscribe for and accept, and DSAQ is agreeing to issue to Antara, on the Closing Date and prior to the Merger, DSAQ Preferred Shares in exchange for a subscription price of $10.00 per DSAQ Preferred Share, for an aggregate investment amount of $7,000,000 (the “Antara PIPE Investment”), on the terms and subject to the conditions set forth in the Antara Subscription Agreement, and in connection with the Merger, each DSAQ Preferred Share issued in the Antara PIPE Investment shall be automatically cancelled and extinguished and converted into the right to receive one (1) PubCo Preferred Share on the terms and subject to the conditions set forth in this Agreement;

WHEREAS, concurrently with the execution of this Agreement, Hunch and PubCo are entering into a subscription agreement (the “Hunch Subscription Agreement”) pursuant to which, among other things, Hunch is agreeing to subscribe for and accept, and PubCo is agreeing to issue to Hunch, on the Closing Date and prior to the Merger and the Antara PIPE Investment, PubCo Preferred Shares in exchange for a subscription price of $10.00 per PubCo Preferred Share, for an aggregate investment amount of $3,000,000 (the “Hunch PIPE Investment”), on the terms and subject to the conditions set forth in the Hunch Subscription Agreement;

WHEREAS, from time to time following the date hereof and prior to the Closing, certain investors (for the avoidance of doubt, not including Antara or Hunch) (collectively, the “PIPE Investors”), DSAQ and PubCo may enter into subscription agreements (each, a “PIPE Subscription Agreement”) pursuant to which, among other things, the PIPE Investors will agree to subscribe for and accept on the Closing Date and prior to the Merger, and DSAQ will agree to issue to each such PIPE Investor on the Closing Date, Equity Securities of DSAQ, on the terms and subject to the conditions set forth in the applicable PIPE Subscription Agreement (such investment in the aggregate, the “PIPE Investment”), and in connection with the Merger, each Equity Security of DSAQ, issued in the PIPE Investment shall be automatically cancelled and extinguished and converted into the right to receive one (1) identical Equity Security of PubCo, on the terms and subject to the conditions set forth in this Agreement;

WHEREAS, prior to the date hereof, the Principal Shareholders, together with PubCo, Blade India, and their respective Subsidiaries, completed the Hunch Reorganization, pursuant to which, among other things, (i) the Principal Shareholders subscribed for 24,697,973 PubCo Class A Ordinary Shares and 16,465,315 PubCo Class B Ordinary Shares (“Issued PubCo Securities”) in exchange for an amount equal to the Formation Consideration, (ii) PubCo contributed the IndiaCo Consideration to IndiaCo in exchange for all of the Equity Securities of IndiaCo (except 1 (one) equity share of IndiaCo, which will be held by Amit Dutta as nominee and the beneficial ownership of such 1 (one) equity share of IndiaCo will be in the name of PubCo in accordance with (Indian) Companies Act 2013), (iii) Blade India transferred all of its assets and liabilities (other than certain excluded assets and liabilities not transferred pursuant to the terms of the Business Transfer Agreement) to IndiaCo on a slump sale basis as a going concern pursuant to the Business Transfer Agreement in exchange for an amount equal to the Slump Sale Consideration, and (iv) Blade India’s board of directors approved the voluntary liquidation/winding up of Blade India in accordance with applicable Laws;

WHEREAS, following the Hunch Reorganization and following the date of this Agreement, Antara shall make the Bridge Investment thereof, pursuant to which PubCo will issue to Antara three (3) convertible promissory notes (the “Convertible Notes”, as amended and otherwise modified prior to the date hereof), and pursuant to the terms and conditions thereof, the Convertible Notes, to the extent outstanding as of immediately prior to the Closing, shall convert into the Note Conversion Shares at the Closing (the “Note Conversion”);

 

2


WHEREAS, prior to the Closing Date, and in connection with the Merger, PubCo intends to effect the Pre-Closing Reorganization, pursuant to which, among other things, (i) Blade India shall transfer all of the Equity Securities of Transhermes to IndiaCo in exchange for the Share Acquisition Consideration, and (ii) the Issued PubCo Securities owned by the Principal Shareholders and any other issued and outstanding and unissued Equity Securities of PubCo will undergo a reverse share split such that the Issued PubCo Securities owned by the Principal Shareholders and any other issued and outstanding Equity Securities of PubCo will, following the consummation of the Pre-Closing Reorganization and immediately prior to the Merger, be consolidated and result in the aggregate number of PubCo Class A Ordinary Shares and PubCo Class B Ordinary Shares issued and outstanding on a fully-diluted, as converted and as exercised basis (excluding Equity Securities issued or issuable pursuant to the Bridge Investment) being equal to the Pre-Closing Reorganization Consideration;

WHEREAS, on the Closing Date, (a) in accordance with the DGCL and the DLLCA and other applicable Laws, Merger Sub shall merge with and into DSAQ, with DSAQ surviving the Merger as the Surviving SPAC and a wholly owned Subsidiary of PubCo, (b) by virtue of the Merger, each share of capital stock of Merger Sub shall be automatically cancelled and extinguished and converted into one (1) Surviving SPAC Share, (c) by virtue of the Merger (i) each DSAQ Unit shall be automatically separated, and the holder thereof shall be deemed to hold one (1) DSAQ Class A Share and one-half (1/2) of a Public Warrant, and (ii) each DSAQ Share then issued and outstanding (other than those described in Section 2.01(b)(vi)(4)) shall be automatically cancelled and extinguished and converted into the right to receive (x) with respect to each DSAQ Class A Share, the Per Share DSAQ Class A Common Consideration, (y) with respect to each DSAQ Class B Share, the Per Share DSAQ Class B Common Consideration and (z) with respect to each DSAQ Preferred Share, the Per Share DSAQ Preferred Consideration, and (d) at the Effective Time, unless otherwise amended by the DSAQ Warrant Amendment, each outstanding Public Warrant and each outstanding Private Placement Warrant shall be assumed by PubCo and shall thereafter be exercisable for one (1) PubCo Class A Ordinary Share and (y) one (1) CVR I, one (1) CVR II and one (1) CVR III;

WHEREAS, simultaneously with the Closing, PubCo, Sponsor, the Principal Shareholders and certain other Persons will enter into a registration rights agreement, in a form reasonably acceptable to PubCo, Sponsor and the Principal Shareholders (the “Registration Rights Agreement”), pursuant to which, among other things, Sponsor, each Principal Shareholder and certain other Persons will be granted certain registration rights with respect to their respective PubCo Class A Ordinary Shares and, if applicable, PubCo Warrants issued to them pursuant to this Agreement or the other Transaction Documents, in each case, on the terms and subject to the conditions set forth in the Registration Rights Agreement;

WHEREAS, the board of directors of DSAQ (the “DSAQ Board”) has, among other things, (a) determined that this Agreement and the transactions contemplated hereby, including the Merger, are advisable, and in the best interest of, DSAQ and the holders of DSAQ Shares, (b) approved and declared advisable this Agreement and the transactions contemplated hereby, including the Merger, (c) directed that this Agreement be submitted to the holders of DSAQ Shares for their adoption and (d) resolved to recommend the adoption and approval of this Agreement and the transactions contemplated hereby, including the Merger, by the holders of DSAQ Shares entitled to vote thereon (the “DSAQ Recommendation”);

 

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WHEREAS, concurrently with the execution and delivery of this Agreement, each Principal Shareholder is approving this Agreement and the Transactions (the “Required Principal Shareholder Approval”), in each case, on the terms and subject to the conditions set forth therein, pursuant to written resolutions (the “Principal Shareholder Written Consent”);

WHEREAS, the board of directors of each of PubCo (the “PubCo Board”), Merger Sub, IndiaCo and Blade India have each approved this Agreement, the other Transaction Documents to which PubCo, Merger Sub, IndiaCo or Blade India, respectively, is or will be a party and the Transactions (including the Merger);

WHEREAS, PubCo, as the holder of the requisite Equity Securities of Merger Sub and IndiaCo, has approved this Agreement, the other Transaction Documents to which Merger Sub or IndiaCo, as applicable, is a party and the Transactions (including the Merger);

WHEREAS, the Principal Shareholders, as the holders of the requisite Equity Securities of Blade India, have approved this Agreement, the other Transaction Documents to which Blade India is a party and the Transactions and the Hunch Reorganization; and

WHEREAS, each of the Parties intends for U.S. federal (and applicable state and local) income Tax purposes that the Merger, together with the Pre-Closing Reorganization and Note Conversion, be treated as an exchange described in Section 351 of the Code, and that the Merger qualify as an exchange eligible for the exception to Section 367(a)(1) of the Code set forth in Treasury Regulations Section 1.367(a)-3(c)(1) (assuming the requirements of Treasury Regulation Section 1.367(a)-3(c)(1)(iii) are met) (collectively, the “U.S. Intended Tax Treatment”).

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement, and intending to be legally bound, the Parties hereby agree as follows:

ARTICLE I

CERTAIN DEFINITIONS

Section 1.01 Definitions . For purposes of this Agreement, the following capitalized terms have the following meanings:

2022 Blade Group Audited Financial Statements” has the meaning specified in Section 5.05(a).

2023 Blade Group Audited Financial Statements” has the meaning specified in Section 5.05(a).

2024 Blade Group Audited Financial Statements” has the meaning specified in Section 5.05(a).

Actual Fraud” means actual and intentional fraud with respect to the making of the representations set forth in Article III or Article IV, as applicable, that involves a misrepresentation (by a member of the Blade Group, with respect to the representations and warranties made by such member of the Blade Group in Article III, and by DSAQ, with respect to Article IV), with the actual knowledge that the applicable representation and warranty was actually breached when made, with the specific intent that (a) in the case of fraud by DSAQ, the Blade Group relies thereon and (b) in the case of fraud by a member of the Blade Group or the Principal Shareholders, DSAQ

 

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rely thereon, and in either such case, the party to whom the false representation was made suffered damage by reason of such reliance. For the avoidance of doubt, “Actual Fraud” does not include constructive fraud or other claims based on constructive, imputed or implied knowledge, negligent misrepresentation, recklessness or similar theories; provided, that the Person claiming fraud shall comply with any other requirements pursuant to applicable Law for asserting a claim of fraud (including pleading with particularity).

Additional DSAQ SEC Reports” has the meaning specified in Section 4.06.

Affiliate” means, with respect to any specified Person, any Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, through one (1) or more intermediaries or otherwise. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlled” and “controlling” have meanings correlative thereto. Notwithstanding the foregoing, investment funds or vehicles managed by Affiliates of DSAQ or Affiliates of Antara Capital LP, and portfolio companies of such investment funds and vehicles, shall not be deemed Affiliates of DSAQ.

Agreement” has the meaning specified in the preamble hereto.

Alternative Advisor” has the meaning set forth in Section 7.06(d).

Alternative Transaction Structure” has the meaning set forth in Section 7.06(b).

Antara” has the meaning specified in the Recitals hereto.

Antara PIPE Investment” has the meaning specified in the Recitals hereto.

Antara Subscription Agreement” has the meaning specified in the Recitals hereto.

Anti-Corruption Laws” means any applicable Laws relating to anti-bribery or anti-corruption (governmental or commercial), including, as applicable, the U.S. Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act of 2010 and all applicable national and international Laws enacted to implement the OECD Convention on Combatting Bribery of Foreign Officials in International Business Transactions.

Aviation Authorities” means the Ministry of Civil Aviation, Government of India, the Directorate General of Civil Aviation, the Bureau of Civil Aviation Security, the Airports Authority of India and such other Governmental Authority exercising or entitled to exercise authority or jurisdiction over matters relating to civil aviation in India.

Aviation Laws” means such Laws, regulations, notification, guidelines, policies, manuals or directives relating to civil aviation in India.

 

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Benefit Plan” means an “employee benefit plan” as defined in Section 3(3) of ERISA or any other benefit or compensation plan, policy, program, contract, arrangement or agreement (including any employment, bonus, incentive or deferred compensation, employee loan, note or pledge agreement, equity, cash or equity-based compensation, severance, retention, supplemental retirement, transaction, change in control, individual consulting or similar plan, policy, program or agreement) providing compensation or other benefits to any current or former director, officer, employee or other service provider, in each case, whether or not (a) subject to the Laws of the United States, (b) in writing or (c) funded, but excluding in each case any Multiemployer Plan or any plan, program or arrangement that is maintained by a Governmental Authority and required by applicable Law (“Statutory Plans”).

Blade Alternate Transaction” means any transaction or series of related transactions under which any Person(s) (other than members of the Blade Group; provided, that, with respect to the members of the Blade Group, any such transaction or series of related transactions does not adversely impact the expected benefits to DSAQ of the Transactions, including the Pre-Closing Reorganization), directly or indirectly, acquires or otherwise purchases all or a material portion of the assets, Equity Securities or businesses of the members of the Blade Group (whether by merger, consolidation, liquidation, recapitalization, purchase, exchange or issuance of Equity Securities, lease or purchase of assets, tender offer or otherwise). Notwithstanding the foregoing or anything to the contrary herein, none of this Agreement, the other Transaction Documents or the Transactions shall constitute a Blade Alternate Transaction.

Blade Group” means PubCo, IndiaCo, Blade India, Merger Sub, Transhermes and any other wholly owned Subsidiaries of the foregoing; provided, that Blade India and Transhermes shall be considered a member of the Blade Group for purposes of the representations and warranties made under Article III solely to the extent such representations and warranties relate to the period from the Formation Date until (a) with respect to Blade India, completion of the Hunch Reorganization prior to the date of this Agreement and (b) with respect to Transhermes, completion of the Pre-Closing Reorganization.

Blade Group Benefit Plan” means a Benefit Plan that is sponsored, maintained or contributed to, or is required to be contributed to, by any member of the Blade Group or under or with respect to which any member of the Blade Group has any Liability.

Blade Group D&O Persons” has the meaning specified in Section 5.04(a).

Blade Group Disclosure Schedules” means the disclosure schedules to this Agreement delivered to DSAQ by PubCo on the date of this Agreement contemporaneously with the execution of this Agreement.

Blade Group Fundamental Representations” means the representations and warranties specified in Section 3.01 (Corporate Organization; Due Authorization), Section 3.04(a) (Capitalization) (other than the first and second sentences of Section 3.04(a)), Section 3.21 (Brokers) and Section 3.25 (Hunch Reorganization).

Blade Group Material Adverse Effect” means any change, event, effect, state of facts or occurrence that, individually or in the aggregate with any other change, event, effect, state of facts or occurrence, has had or would reasonably be expected to have a material adverse effect on (a) the business, results of operations or condition (financial or otherwise) of the Blade Group, taken as a whole or (b) the ability of any member of the Blade Group to enter into and perform its

 

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obligations under this Agreement; provided, however, that none of the following (or the effect of any of the following) shall be taken into account in determining whether a Blade Group Material Adverse Effect has occurred or would reasonably be expected to occur with respect to clause (a) above: any change, event, effect, state of facts or occurrence arising from or related to (i) general business or economic conditions in or affecting India, Ireland or the United States, or any other country, or changes therein, or the global economy generally, (ii) any national or international political or social conditions in India, Ireland or the United States, or any other country, including the engagement by India, Ireland or the United States or any other country in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence in any place of any military or terrorist attack, sabotage or cyberterrorism, (iii) changes in conditions of the financial, banking, capital or securities markets generally in India, Ireland or the United States, or any other country, or changes therein, including changes in interest rates in India, Ireland or the United States or any other country and changes in exchange rates for the currencies of any countries, (iv) changes in any applicable Laws (including COVID-19 Measures) or changes in GAAP or Indian Accounting Standards, or any other applicable accounting standards or any authoritative interpretations thereof, in each case, after the date of this Agreement, (v) the execution or public announcement of this Agreement or the pendency or consummation of the Transactions (provided, that the exception in this clause (v) shall not apply to the representations and warranties contained in Section 3.03 or the condition set forth in Section 8.03(a) to the extent it relates to such representations and warranties), (vi) any failure in and of itself by the Blade Group to meet any internal or published budgets, projections, forecasts, estimates or predictions (although the underlying facts and circumstances resulting in such failure may be taken into account to the extent not otherwise excluded from this definition), (vii) any hurricane, tornado, flood, earthquake, tsunami, natural disaster, epidemic, pandemic (including COVID-19) or quarantine, act of God or other comparable event in India, Ireland or the United States or any other country, or any escalation of the foregoing, (viii) changes generally applicable to the industries or markets in which the Blade Group operates; or (ix) any action taken at the express written request of DSAQ after the date of this Agreement; provided, further, that any change, event, effect, state of facts or occurrence resulting from a matter described in any of the foregoing clauses (i) through (iv), (vii) or (viii) may be taken into account in determining whether a Blade Group Material Adverse Effect has occurred or would reasonably be expected to occur to the extent such change, event, effect, state of facts or occurrence has had or would reasonably be expected to have a disproportionate adverse effect on the business, results of operations or financial condition of Blade Group relative to other similarly situated participants operating in the industries in which the Blade Group operates.

Blade Group Related Party” has the meaning specified in Section 3.10(a)(xvi).

Blade Group Related Party Contract” has the meaning specified in Section 3.19.

Blade Group Transaction Expenses” means, as of any determination time, the aggregate amount of fees, expenses, commissions or other amounts incurred by or on behalf of, and that are due and payable (and not otherwise expressly allocated to DSAQ pursuant to the terms of this Agreement or any other Transaction Document) by, the Blade Group in connection with the negotiation, preparation or execution of this Agreement or any other Transaction Document, the performance of their covenants or agreements in this Agreement or any other Transaction Document or the consummation of the Transactions and the Hunch Reorganization, including (a) the fees and expenses of outside legal counsel, accountants, advisors, brokers, investment bankers,

 

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consultants, placement agents or other agents or service providers of the Blade Group, (b) 50% of any filing fees related to the Registration Statement/Proxy Statement and (c) any other fees, expenses, commissions or other amounts that are expressly allocated to the Blade Group pursuant to this Agreement or any other Transaction Document. Notwithstanding the foregoing or anything to the contrary herein, Blade Group Transaction Expenses shall not include any DSAQ Transaction Expenses.

Blade India” has the meaning specified in the Preamble hereto.

Blade US” has the meaning specified in the Preamble hereto.

Bridge Investment” shall mean the investment in the aggregate amount of $3,000,000 to be funded in three equal installments of $1,000,000 each by Antara Capital Master Fund LP into PubCo pursuant to the Convertible Notes.

Business Combination Proposal” has the meaning specified in Section 7.04(b).

Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in (a) New York, New York, (b) India or (c) Ireland are authorized or required by Law to close.

Business Transfer Agreement” means that certain business transfer agreement, dated as of October 18, 2023, by and between Blade India and IndiaCo, as amended by that certain amendment agreement to the business transfer agreement, dated as of December 26, 2023.

CERT-In” has the meaning specified in Section 5.15(a).

Certificate of Merger” has the meaning specified in Section 2.01(b)(ii).

Certificates” means any and all certificates representing DSAQ Shares.

Closing” has the meaning specified in Section 2.02.

Closing Blade Group Financial Statements” has the meaning specified in Section 5.05(a).

Closing Date” has the meaning specified in Section 2.02.

Closing Filing” has the meaning specified in Section 7.07(e).

Closing Press Release” has the meaning specified in Section 7.07(e).

Code” means the U.S. Internal Revenue Code of 1986.

Companies Act 2014” means the Companies Act 2014 (as amended) of Ireland.

Confidentiality Agreement” has the meaning specified in Section 10.09.

 

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Contaminant” means any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus” or “worm” (as such terms are commonly understood in the software industry) or any other code designed or intended to have, or capable of performing or that without user intent will cause, any of the following functions: (a) disrupting, disabling, harming or otherwise impeding in any manner the operation of, or providing unauthorized access to, any Software, hardware or device (including any computer, tablet computer, handheld device, disk or storage device); (b) damaging or destroying any data or file without the user’s consent; or (c) sending information to the Blade Group, or any other Person, without the user’s consent.

Contracts” means any oral or written agreement, contract, license, lease, sublease, license, concession, obligation, undertaking or other commitment or arrangement that is legally binding upon a Person or any of his, her or its properties or assets.

Convertible Notes” has the meaning specified in the Recitals hereto.

COVID-19” means SARS-CoV-2 or COVID-19 and any evolutions or mutations thereof or associated epidemics, pandemics or disease outbreaks.

COVID-19 Measures” means any legally binding quarantine, “shelter in place,” “stay at home,” social distancing or sequester order, guideline, recommendation or Law, in each case, by any Governmental Authority and in response to COVID-19.

Current Stock Exchange” means the New York Stock Exchange, on which the DSAQ Class A Shares and DSAQ Units are listed for trading as of the date of this Agreement.

CVRs” means, collectively, CVR Is, CVR IIs and CVR IIIs.

CVR Agreement” means the Contingent Value Rights Agreement to be entered into prior to or in connection with the Closing, by and among the PubCo, DSAQ and Continental Stock Transfer & Trust Company (or such other rights agent reasonably acceptable to the Parties), in its capacity as the rights agent, and the other applicable parties thereto, in substantially the form attached hereto as Exhibit E.

CVR I” means a contingent value right (which shall not be evidenced by a certificate or other instrument) representing the right of a holder of a CVR I to receive from PubCo, with respect to such CVR I, a Pro Rata Portion of 2,000,000 newly issued PubCo Class A Ordinary Shares if Triggering Event I is not met in accordance with Section 2.05, pursuant to the terms and conditions of the CVR Agreement.

CVR II” means a contingent value right (which shall not be evidenced by a certificate or other instrument) representing the right of a holder of a CVR II to receive from PubCo, with respect to such CVR II, a Pro Rata Portion of 2,000,000 newly issued PubCo Class A Ordinary Shares if Triggering Event II is not met in accordance with Section 2.05, pursuant to the terms and conditions of the CVR Agreement.

CVR III” means a contingent value right (which shall not be evidenced by a certificate or other instrument) representing the right of a holder of a CVR III to receive from PubCo, with respect to such CVR III, a Pro Rata Portion of 2,000,000 newly issued PubCo Class A Ordinary Shares if Triggering Event III is not met in accordance with Section 2.05, pursuant to the terms and conditions of the CVR Agreement.

 

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Data Security Requirement” means all Privacy Laws, and all of the following to the extent relating to privacy or data security, or the Processing of Personal Information or IT Systems, and applicable to the Blade Group: (i) privacy policies, (ii) industry standards, and (iii) Contracts.

Deferred Shares” means the deferred ordinary shares in the share capital of PubCo, with nominal value of €1.00 per share, and having the rights set out in the PubCo constitutional documents at the relevant time of determination.

DGCL” means the General Corporation Law of the State of Delaware, as amended.

DLLCA” means the Limited Liability Company Act of the State of Delaware, as amended.

DSAQ” has the meaning specified in the Preamble hereto.

DSAQ Alternate Transaction” means any transaction or series of related transactions under which (a) DSAQ or any of its controlled Affiliates, directly or indirectly, (i) acquires or otherwise purchases any other Person(s), (ii) engages in a business combination with any other Person(s) or (iii) acquires or otherwise purchases all or a material portion of the assets, Equity Securities or businesses of any other Person(s) (in the case of each of clauses (i), (ii) and (iii), whether by merger, consolidation, liquidation, recapitalization, purchase, exchange or issuance of Equity Securities, purchase of assets, tender offer or otherwise) or (b) (i) DSAQ or any of its controlled Affiliates issues any Equity Securities to, or negotiates a similar investment with, any one (1) or more Persons or (ii) any one (1) or more Persons acquire or otherwise purchase all or a material portion of the assets or businesses of DSAQ. Notwithstanding the foregoing or anything to the contrary herein, none of this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby shall constitute a DSAQ Alternate Transaction.

DSAQ Benefit Plan” has the meaning specified in Section 4.13.

DSAQ Board” has the meaning specified in the Recitals hereto.

DSAQ Change of Recommendation” has the meaning specified in Section 6.06(a)(ii).

DSAQ Class A Shares” means shares of Class A common stock, par value of $0.0001 per share, of DSAQ.

DSAQ Class B Shares” means shares of Class B common stock, par value of $0.0001 per share, of DSAQ.

DSAQ Closing Statement” has the meaning specified in Section 2.02(b)(i).

DSAQ D&O Persons” has the meaning specified in Section 5.03(a).

DSAQ D&O Tail Policy” has the meaning specified in Section 5.04(c).

DSAQ Disclosure Schedules” means the disclosure schedules to this Agreement delivered to PubCo by DSAQ contemporaneously with the execution of this Agreement.

 

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DSAQ Financial Statements” has the meaning specified in Section 4.07(d).

DSAQ Fundamental Representations” means the representations and warranties specified in Section 4.01 (Corporate Organization), Section 4.02 (Due Authorization), Section 4.04 (Capitalization) (other than the first sentence of Section 4.04(a)) and Section 4.19 (Brokers).

DSAQ Group” has the meaning specified in Section 10.18(a).

DSAQ Material Adverse Effect” means any change, event, occurrence or effect that, individually or when aggregated with other changes, events, occurrences or effects, has had or would reasonably be expected to have a material adverse effect on (a) the condition (financial or otherwise), assets, liabilities, business or results of operations of DSAQ, taken as a whole, or (b) the ability of DSAQ to timely perform any of its or their respective covenants or obligations under this Agreement or any Transaction Document or to consummate the Transactions; provided, however, that none of the following (or the effect of any of the following) shall be taken into account in determining whether a DSAQ Material Adverse Effect has occurred or would reasonably be expected to occur with respect to clause (a) above: any change, event, effect, state of facts or occurrence arising from or related to (i) the matters described in clauses (i) through (ix) of the definition of Blade Group Material Adverse Effect (which shall apply as to DSAQ, mutatis mutandis) or (ii) the consummation and effects of any DSAQ Stockholder Redemption.

DSAQ Material Contract” has the meaning specified in Section 4.11(a).

DSAQ Preferred Shares” means the convertible preferred shares of DSAQ issued pursuant to the Antara Subscription Agreement.

DSAQ Recommendation” has the meaning specified in the Recitals hereto.

DSAQ Related Party” has the meaning specified in Section 4.16.

DSAQ SEC Reports” has the meaning specified in Section 4.06.

DSAQ Share Consideration” has the meaning specified in Section 2.01(b)(vi)(2).

DSAQ Shares” means, collectively, the DSAQ Class A Shares, the DSAQ Class B Shares and DSAQ Preferred Shares.

DSAQ Stockholder Redemptions” means the right of the holders of DSAQ Class A Shares to redeem all or a portion of their DSAQ Class A Shares in connection with the Merger as set forth in DSAQ’s Governing Documents.

DSAQ Transaction Expenses” means, as of any determination time, the aggregate amount of fees, expenses, commissions or other amounts incurred by or on behalf of, and that are due and payable (and not otherwise expressly allocated to the Blade Group pursuant to the terms of this Agreement or any other Transaction Document) by, DSAQ and/or Sponsor in connection with the negotiation, preparation or execution of this Agreement, any other Transaction Document or the definitive documentation with respect to the IPO or other prospective business combination transactions, the performance of its covenants or agreements in this Agreement or any other

 

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Transaction Document or the consummation of the Transactions or the IPO (including any deferred underwriter fees), including (a) the fees and expenses of outside legal counsel, accountants, advisors, brokers, investment bankers, consultants, placement agents or other agents or service providers of DSAQ and/or Sponsor and (b) any other fees, expenses, commissions or other amounts that are expressly allocated to DSAQ pursuant to this Agreement or any other Transaction Document. Notwithstanding the foregoing or anything to the contrary herein, DSAQ Transaction Expenses shall not include any Blade Group Transaction Expenses.

DSAQ Units” means the units issued in the IPO consisting of one (1) DSAQ Class A Share and one-half (1/2) of a Public Warrant.

DSAQ Warrant Agreement” means that certain Warrant Agreement, dated as of September 23, 2021, by and between DSAQ and Continental Stock Transfer & Trust Company, a New York limited purpose trust company, as the warrant agent and the transfer agent.

DSAQ Warrant Amendment” has the meaning specified in Section 7.04(b).

DSAQ Warrants” means, collectively, the Private Placement Warrants and the Public Warrants.

Effective Time” has the meaning specified in Section 2.01(b)(ii).

Ellenoff” has the meaning specified in Section 10.18(b).

Ellenoff Privileged Communications” has the meaning specified in Section 10.18(b).

Employee Notice Layoff Laws” has the meaning specified in Section 3.12(b).

Enforceability Exceptions” has the meaning specified in Section 3.10(b).

Environmental Laws” means any and all Laws, as enacted and in effect on the Closing Date, relating to pollution or protection of the environment (including natural resources), including the use, storage, emission, disposal or release of, or exposure to, Hazardous Materials.

Equity Securities” with respect to any Person means, (a) any shares of capital or capital stock, partnership, membership, joint venture or similar interest, or other voting securities of, or other ownership interest in, such Person, (b) any securities of such Person convertible into or exchangeable for cash or shares of capital or capital stock or other voting securities of, or other ownership interests in, such Person, (c) any warrants, calls, options or other rights to acquire from such Person, or other obligations of such Person to issue, any shares of capital or capital stock or other voting securities of, or other ownership interests in, or securities convertible into or exchangeable for shares of capital or capital stock or other voting securities of, or other ownership interests in, such Person, (d) any restricted shares, stock appreciation rights, restricted units, performance units, contingent value rights, “phantom” stock or similar securities or rights issued by or with the approval of such Person that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any shares of capital or capital stock or other voting securities of, other ownership interests in, or any business, products or assets of, such Person, and (e) any securities issued or issuable with respect to the securities or interests referred to in clauses (a) through (d) above in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization.

 

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ERISA” means the Employee Retirement Income Security Act of 1974.

ERISA Affiliate” means any trade or business (whether or not incorporated) which together with any member of the Blade Group would at any relevant time be treated as a “single employer” under Section 414(b), (c), (m), or (o) of the Code.

Exchange Act” means the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder.

Extension” has the meaning specified in Section 7.09.

Extension Proxy Statement” has the meaning specified in Section 7.09.

Federal Securities Laws” means the Exchange Act, the Securities Act and the other U.S. federal securities laws and the rules and regulations of the SEC promulgated thereunder.

Financial Statements” has the meaning specified in Section 3.06(a).

First Measurement Period” means the 12 month period ending on the final day of the month in which the second anniversary of the Closing occurs.

First Measurement Period Consolidated Revenue” means the amount of consolidated revenues of the PubCo and its Subsidiaries, on a consolidated basis, for the First Measurement Period, as certified by PubCo’s independent auditors, subject to the qualification that the amount of such consolidated revenue has not been audited, within 30 days after the end of the First Measurement Period.

Formation Consideration” means $618,864.

Formation Date” means, with respect to any member of the Blade Group, the date of formation of such entity under the laws of its jurisdiction of formation.

GAAP” means United States generally accepted accounting principles, consistently applied.

Governing Documents” means the legal document(s) by which any Person (other than an individual) establishes its legal existence or which govern its internal affairs. For example, the “Governing Documents” of a U.S. corporation are its certificate or articles of incorporation and by-laws, the “Governing Documents” of a U.S. limited partnership are its limited partnership agreement and certificate of limited partnership, the “Governing Documents” of a U.S. limited liability company are its operating or limited liability company agreement and certificate of formation, the “Governing Documents” of an Irish private limited company are its memorandum and articles of association, the “Governing Documents” of an Indian company are its certificate of incorporation, articles and memorandum of association, and with respect to an Indian company incorporated in Gujarat International Finance Tec-City, in addition to that applicable to an Indian company, the certificate of registration for commencing business issued by the International Financial Services Centres Authority, and the “Governing Documents” of an Indian limited liability partnership are its certificate of incorporation and limited liability partnership agreement.

 

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Governmental Authority” means any (a) federal, state, national, provincial, local, municipal, foreign, domestic or other government, (b) governmental or quasi-governmental entity of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal) or (c) body exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory, stock exchange or taxing authority or power of any nature, including any arbitrator or arbitral tribunal or body (public or private).

Governmental Order” means any writ, order, judgment, injunction, decision, determination, award, ruling, subpoena, verdict or decree or other similar determination or finding entered, issued or rendered by any Governmental Authority.

Hazardous Material” means any material, substance or waste that is listed, regulated, classified or defined as “hazardous,” “toxic,” or “radioactive,” or as a “pollutant” or “contaminant” under applicable Environmental Laws due to its dangerous or deleterious properties or characteristics, including petroleum, petroleum by-products, asbestos, per- or polyfluoroalkyl substances or polychlorinated biphenyls.

HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the rules and regulations promulgated thereunder.

Hunch” has the meaning specified in the Preamble hereto.

Hunch PIPE Investment” has the meaning specified in the Recitals hereto.

Hunch Reorganization” has the meaning specified in Section 3.25.

Hunch Subscription Agreement” has the meaning specified in the Recitals hereto.

Incentive Equity Plan” has the meaning specified in Section 5.08.

Indebtedness” means, with respect to any Person as of any time, without duplication, any obligations (whether or not contingent) consisting of (a) the outstanding principal amount of, and other payment obligations for, borrowed money of such Person or indebtedness issued by such Person in substitution or exchange for borrowed money or payment obligations issued or incurred (in each case, other than indebtedness solely between or among such Person and its Subsidiaries), (b) amounts owing as deferred purchase price for property or services, including “earnout” payments, (c) payment obligations evidenced by any promissory note, bond, debenture, mortgage or other debt instrument or debt security, in each case, of such Person, (d) all obligations of such Person as lessee that are required to be capitalized in accordance with GAAP or Indian Accounting Standards, as applicable, (e) contingent reimbursement obligations with respect to letters of credit, bankers’ acceptance or similar facilities (in each case to the extent drawn), (f) payment obligations of a third party secured by (or for which the holder of such payment obligations has an existing right, contingent or otherwise, to be secured by) any Lien, other than a Permitted Lien, on assets or properties of such Person, whether or not the obligations secured thereby have been assumed, (g) any unfunded or underfunded pension, deferred compensation, gratuity, provident fund, or similar types of Liabilities, (h) any unpaid paid-time-off, incentive or retention compensation or severance obligations (whether or not accrued), together with the employer portion of any payroll Taxes due on the foregoing amounts, computed as though all such amounts were due and payable

 

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as of the Closing, (i) guarantees, make whole agreements, hold harmless agreements or similar arrangement with respect to any amounts of all obligations of the type referred to in clauses (a) through (h) of this definition of any other Person, the payment of which such first Person is responsible or liable, directly or indirectly, as obligor, guarantor, surety or otherwise, including any guarantee of such obligations and (j) with respect to each of the foregoing, any accrued and unpaid interest, breakage costs, prepayment or redemption penalties or premiums, or other unpaid fees or obligations (including unreimbursed expenses or indemnification obligations for which a claim has been made); provided, however, that Indebtedness shall not include (i) accounts payable to trade creditors that are not past due and accrued expenses arising in the ordinary course of business consistent with past practice and (ii) Blade Group Transaction Expenses or DSAQ Transaction Expenses.

IndiaCo” has the meaning specified in the Preamble hereto.

IndiaCo Consideration” means $336,348.75.

Indian Accounting Standards” means the Indian accounting standards as prescribed under the Companies (Indian Accounting Standards) Rules, 2015, as amended from time to time, and the other generally accepted accounting principles in India.

Indian Foreign Exchange Control Laws” mean the Foreign Exchange Management Act, 1999, the rules and regulations framed thereunder, the circulars, directions and press notes issued by the Department for Promotion of Industry and Internal Trade, Government of India and/or by the Reserve Bank of India in relation to such act, rules and regulations, and the consolidated foreign direct investment policy issued by the Government of India, as may be amended, modified, supplemented or re-enacted from time to time.

Intellectual Property” means all: (a) patents and patent applications, including provisional patent applications and similar filings, and all substitutions, divisions, continuations, continuations-in-part, reissues, renewals, extensions, reexaminations, patents of addition, supplementary protection certificates, utility models, inventors’ certificates, or the like and all foreign equivalents of any of the foregoing (including certificates of invention and any applications therefor) (collectively, “Patents”), (b) trademarks, service marks, logos, trade dress, trade names and corporate names, and other source or business identifiers and general intangibles of a like nature, together with the goodwill associated with any of the foregoing, and all applications, registrations, renewals and extensions of any of the foregoing (collectively, “Trademarks”), (c) copyrights, works of authorship and copyrightable works (including copyrights in Software), in each case, whether or not registered or published, all applications, registrations, reversions, extensions and renewals of any of the foregoing, and all moral rights, however denominated, (d) trade secrets and confidential information, rights to inventions (whether patentable or not), rights in Software, know-how, concepts, ideas, technology, data, databases and documentation thereof, (e) Internet domain names and social media handles, and (f) all other intellectual property rights of any kind or nature arising anywhere in the world.

Interim Period” has the meaning specified in Section 5.01(a).

 

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Interim Unaudited Financial Statements” has the meaning specified in Section 5.05(a).

IP License Agreement” means that certain amended and restated license agreement, dated as of December 18, 2023, by and between Blade US and IndiaCo with respect to license of Licensed IP.

IPO” means the initial public offering of DSAQ Units pursuant to the IPO Prospectus.

IPO Prospectus” means the final prospectus of DSAQ, dated as of September 23, 2021, and filed with the SEC on September 27, 2021.

Irish Revenue” has the meaning specified in Section 7.06(a).

Issued PubCo Securities” has the meaning specified in the Recitals hereto.

IT Systems” means all computers, computer systems, servers, networks, network equipment, firmware, Software, hardware, information technology systems or infrastructure, electronic data processing systems, communication networks, interfaces, platforms, peripherals and data or information contained therein or transmitted thereby, and other information technology equipment, in each case, whether owned or used by or on behalf of the Blade Group.

JOBS Act” means the Jumpstart Our Business Startups Act of 2012.

Labor Agreement” has the meaning specified in Section 3.10(a)(xiii).

Law” means any statute, law (including common law), act, code, ordinance, rule, regulation or Governmental Order, in each case, of any Governmental Authority.

Leased Real Property” means all real property leased, subleased, licensed or similarly used or occupied by the Blade Group, together with all rights to the land, buildings, structures, improvements, fixtures or other interests in real property thereof.

Leases” has the meaning specified in Section 3.16(b).

Liability” or “liability” means any and all debts, liabilities and obligations, whether accrued or fixed, absolute or contingent, known or unknown, matured or unmatured or determined or determinable, including those arising under any Law, Proceeding or Governmental Order and those arising under any Contract.

Licensed IP” means all Intellectual Property (other than Owned IP) that is used, practiced or held for use or practice by the Blade Group, or otherwise necessary for the operation of the business of the Blade Group.

Lien” means any mortgage, deed of trust, deed to secure debt, assignment of leases and/or rents, pledge, hypothecation, easement, right of way, purchase option, right of first refusal, right of first offer, restriction, claim, charge, security interest, equitable interest, hypothecation, license, covenant not to assert, restriction on transfer, conditional sale or title retention agreement, title defect, encroachment or other survey defect, pre-emption, redemption, or any other similar lien or encumbrance.

 

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Material Adverse Effect Notice” has the meaning specified in Section 6.06(b).

Material Adverse Effect Notice Period” has the meaning specified in Section 6.06(b).

Material Contracts” has the meaning specified in Section 3.10(a).

Material Permits” has the meaning specified in Section 3.15.

Measurement Period(s)” means the First Measurement Period, the Second Measurement Period and the Third Measurement Period.

Measurement Period Shares” has the meaning specified in Section 2.05(b)(iii).

Measurement Time” means 12:01 a.m., New York time, on the Closing Date.

Merger” has the meaning specified in Section 2.01(b)(i).

Merger Sub” has the meaning specified in the preamble hereto.

Merger Sub Shares” has the meaning specified in Section 2.01(b)(iv).

Money Laundering Laws” has the meaning specified in Section 3.09(h).

Most Recent Balance Sheet” means the unaudited consolidated balance sheet of Blade India as of March 31, 2023.

Multiemployer Plan” means any “multiemployer plan” (as defined in Section 3(37) of ERISA).

Net Available Closing Cash” means, if a positive number, (a) the Working Capital of PubCo that remains available as of the Measurement Time, determined in accordance with GAAP, minus the aggregate amounts actually funded pursuant to the Bridge Investment.

Nominee Shareholder” means Tejinder Pal Singh Bakhshi.

Non-U.S. Benefit Plan” has the meaning specified in Section 3.11(a).

Note Conversion” has the meaning specified in the Recitals.

Note Conversion Shares” means the aggregate number and type of PubCo Preferred Shares into which the Convertible Notes are convertible pursuant to the terms of the Convertible Notes.

NYSE Proposal” has the meaning specified in Section 7.04(b).

Operator” means any non-scheduled air operator permit holders involved in the business and operations of members of the Blade Group in India.

 

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Ordinary Shares” means the ordinary shares in the share capital of PubCo, with nominal value of €1.00 per share, and having the rights set out in the PubCo constitutional documentation at the relevant time of determination.

Other Blade Group Financial Statements” has the meaning specified in Section 5.05(a).

Outstanding DSAQ Expenses” has the meaning specified in Section 2.02(b)(i).

Outstanding PubCo Expenses” has the meaning specified in Section 2.02(b)(ii).

Owned IP” means all Intellectual Property that is owned or purported to be owned by the Blade Group, including all Registered Intellectual Property.

Owned Real Property” means all land, together with all buildings, structures, improvements and fixtures located thereon, and all easements and other rights and interests appurtenant thereto, owned by the Blade Group.

Parties” has the meaning specified in the preamble hereto.

Party” has the meaning specified in the preamble hereto.

Patents” has the meaning specified in the definition of “Intellectual Property”.

PCAOB” has the meaning specified in Section 4.07(d).

Per Share DSAQ Class A Common Consideration” has the meaning specified in Section 2.01(b)(vi)(2).

Per Share DSAQ Class B Common Consideration” has the meaning specified in Section 2.01(b)(vi)(2).

Per Share DSAQ Common Consideration” has the meaning specified in Section 2.01(b)(vi)(2).

Per Share DSAQ Preferred Consideration” has the meaning specified in Section 2.01(b)(vi)(2).

Permitted Financing” means a convertible debt or equity financing transaction consummated by and funded into PubCo or IndiaCo following the date of this Agreement and prior to the Closing, excluding the Note Conversion; provided, that (a) the capital raised in any such transaction(s) do not exceed the amount reasonably necessary to fund working capital and business requirements of the Blade Group during the Interim Period, and (b) the terms of such transaction(s) do not materially impair or interfere with the Transactions (including the U.S. Intended Tax Treatment) or the Blade Group’s ability to timely fulfill its obligations under this Agreement.

 

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Permits” means, with respect to any Person, any license, approval, consent, registration, permit or certificate of authorization issued by, or otherwise granted by, any Governmental Authority to which or by which such Person is subject or bound or to which or by which any property, business, operation or right of such Person is subject or bound.

Permitted Liens” means (a) statutory or common law Liens of mechanics, materialmen, warehousemen, landlords, carriers, repairmen, construction contractors and other similar Liens arising or incurred in the ordinary course of business, and (i) that relate to amounts not yet due and payable or (ii) that are being contested in good faith through appropriate Proceedings and for which appropriate reserves for the amount being contested have been established in accordance with GAAP, (b) Liens arising or incurred under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business, (c) Liens for Taxes not yet due and payable or which are being contested in good faith through appropriate Proceedings and for which appropriate reserves for the amount being contested have been established in accordance with GAAP, (d) non-monetary Liens of record affecting title to the Real Property (including easements, covenants, rights of way, survey defects and other title defects or non-monetary encumbrances) that do not and would not reasonably be expected to, individually or in the aggregate, prohibit or materially interfere with the use or occupancy of such Real Property (or the value of the Owned Real Property) or the business of the Blade Group conducted thereon, (e) Liens in respect of any obligations as lessee under capitalized leases, (f) rights, interests, Liens or titles of, or through, a licensor, sublicensor, licensee, sublicensee, lessor or sublessor under any license, lease or other similar agreement or in the property being leased or licensed that do not and would not reasonably be expected to, individually or in the aggregate, prohibit or materially interfere with the use or occupancy of such Real Property or the business of the Blade Group, (g) with respect to any Leased Real Property, zoning, building, entitlement and other land use and environmental regulations promulgated by any Governmental Authority that do not materially interfere with the current use or occupancy of, or materially impair the value of, such Leased Real Property, and in each case which are not violated by the current use or occupancy of such Leased Real Property or the operation of the business of the Blade Group conducted thereon, (h) non-exclusive licenses of Intellectual Property entered into in the ordinary course of business and (i) transfer restrictions under the Governing Documents of the members of the Blade Group; provided, in each case, that such Liens do not impair or materially delay the consummation of the Transactions.

Person” means any individual, firm, corporation, exempted company, partnership, exempted limited partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, governmental agency or instrumentality or other entity of any kind.

Personal Information” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked with, directly or indirectly, a particular consumer or household, or that is otherwise defined as “personal information,” “personal data,” “personally identifiable information” or a similar term under any applicable Law.

PIPE Investment” has the meaning specified in the Recitals hereto.

PIPE Investors” has the meaning specified in the Recitals hereto.

PIPE Subscription Agreement” has the meaning specified in the Recitals hereto.

 

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Pre-Closing DSAQ Holders” means the holders of DSAQ Shares as of any specified time prior to the Effective Time.

Pre-Closing Reorganization” has the meaning specified in Section 5.07.

Pre-Closing Reorganization Consideration” means (a) a number of fully-paid and non-assessable PubCo Class A Ordinary Shares equal to (i) the PubCo Class A Equity Value divided by (ii) $10.00 and (b) a number of fully-paid and non-assessable PubCo Class B Ordinary Shares equal to (i) the PubCo Class B Equity Value divided by (ii) $10.00.

Press Note 3” has the meaning specified in Section 4.03(c).

Principal Shareholder” has the meaning specified in the Preamble hereto.

Principal Shareholder Support Agreement” has the meaning specified in the Recitals hereto.

Principal Shareholder Written Consent” has the meaning specified in the Recitals hereto.

Privacy Laws” means any and all applicable Laws, legal requirements and self-regulatory guidelines relating to the receipt, collection, compilation, use, storage (including storage location), processing, protection, privacy, sharing, safeguarding, disposal, destruction, disclosure, transfer (including cross-border) or security (both technical and physical) of Personal Information and any and all applicable Laws governing or related to Processing of Personal Information, breach notification, marketing or the use of biometric identifiers.

Private Placement Warrants” means the Private Placement Warrants as defined in the DSAQ Warrant Agreement.

Pro Rata Portion” means, with respect to a holder of a CVR, a fraction, expressed as a percentage, (i) the numerator of which is 1 and (ii) the denominator of which is the total number of DSAQ Class A Shares, DSAQ Class B Shares and DSAQ Warrants issued and outstanding as of immediately prior to the Closing. For the avoidance of doubt, if the DSAQ Warrant Amendment is approved by the holders of DSAQ Warrants, then the denominator shall be equal to the total number of DSAQ Class A Shares and DSAQ Class B Shares issued and outstanding as of immediately prior to the Closing after giving effect to the conversion of the DSAQ Warrants contemplated by the DSAQ Warrant Amendment. Notwithstanding the foregoing, if a holder of a CVR becomes entitled to a Pro Rata Portion of PubCo Class A Ordinary Shares pursuant to the terms of this Agreement and the CVR Agreement, then the aggregate number of PubCo Class A Ordinary Shares issuable to such holder, with respect to all CVRs held by such holder in the aggregate, shall be rounded down to the nearest whole PubCo Class A Ordinary Share.

Proceeding” means any lawsuit, litigation, action, audit, examination or investigation, inquiry, hearing, claim, complaint, charge, proceeding, suit, mediation or arbitration (in each case, whether civil, criminal or administrative and whether public or private), including, without limitation, matters with respect to condemnation, expropriation or other proceeding in eminent domain.

 

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Process”, “Processed” or “Processing” means, with respect to any information (including Personal Information) or IT Systems, any operation or set of operations performed on any such information, or IT System, including access, collection, use, processing, storage, transfer, sale, sharing, disclosure, destruction, modification, security, or disposal of any data.

PubCo” has the meaning specified in the preamble hereto.

PubCo Board” has the meaning specified in the Recitals hereto.

PubCo Class A Equity Value” means the sum of (a) $90,000,000, plus (b) the Net Available Closing Cash.

PubCo Class A Ordinary Shares” means the Class A Ordinary Shares in the share capital of PubCo, with nominal value of $0.0001 per share, and having the rights set out in the PubCo New Articles of Association at the relevant time of determination.

PubCo Class B Equity Value” means $60,000,000.

PubCo Class B Ordinary Shares” means the Class B Ordinary Shares in the share capital of PubCo, with nominal value of $0.0001 per share, and having the rights set out in the PubCo New Articles of Association at the relevant time of determination, including ten (10) votes per share and features with respect to the cessation of economic rights upon failure to satisfy a Triggering Event.

PubCo Closing Statement” has the meaning specified in Section 2.02(b)(ii).

PubCo New Articles of Association” has the meaning specified in Section 5.07.

PubCo Ordinary Shares” means the PubCo Class A Ordinary Shares and the PubCo Class B Ordinary Shares.

PubCo Preferred Shares” means the convertible preferred shares of PubCo, which shall have identical terms and conditions as the DSAQ Preferred Shares.

PubCo Private Placement Warrants” mean, unless otherwise amended by the DSAQ Warrant Amendment, the Private Placement Warrants assumed by PubCo at the Effective Time pursuant to the PubCo Warrant Agreement and Section 2.01(b)(vi)(3), each of which shall represent the right to subscribe (a) one (1) PubCo Class A Ordinary Share and (b) one (1) CVR I, one (1) CVR II and one (1) CVR III, in the same form and on the same terms and conditions (including the same exercise price of $11.50) as the applicable Private Placement Warrant.

PubCo Public Warrants” mean, unless otherwise amended by the DSAQ Warrant Amendment, the Public Warrants assumed by PubCo at the Effective Time pursuant to the PubCo Warrant Agreement and Section 2.01(b)(vi)(3), each of which shall represent the right to subscribe for (a) one (1) PubCo Class A Ordinary Share and (b) one (1) CVR I, one (1) CVR II and one (1) CVR III, in the same form and on the same terms and conditions (including the same exercise price of $11.50) as the applicable Public Warrant.

 

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PubCo Warrant Agreement” means, if applicable, that certain Warrant Assignment and Assumption Agreement, to be dated as of the Closing Date, by and between DSAQ, PubCo and Continental Stock Transfer & Trust Company, a New York limited purpose trust company, as the warrant agent (and in a form reasonably acceptable to such Persons), with respect to the PubCo Warrants.

PubCo Warrants” means, if applicable, collectively, the PubCo Private Placement Warrants and the PubCo Public Warrants.

Public Warrants” means the Public Warrants as defined in the DSAQ Warrant Agreement.

Redeeming Stockholder” means a holder of DSAQ Shares who demands that DSAQ redeem its DSAQ Class A Shares for cash in connection with the Merger and in accordance with DSAQ’s Governing Documents.

Registered Intellectual Property” has the meaning specified in Section 3.17(a).

Registration Rights Agreement” has the meaning specified in the Recitals hereto.

Registration Statement/Proxy Statement” means a registration statement on Form F-4 relating to the Transactions and containing a proxy statement of DSAQ.

Representative” means, as to any Person, any of the officers, directors, managers, employees, counsel, accountants, financial advisors and consultants of such Person.

Required DSAQ Stockholder Approval” means the approval, at the Special Meeting where a quorum is present, of the Business Combination Proposal, by the vote of the holders of a majority of the outstanding DSAQ Shares entitled to vote thereon.

Required Principal Shareholder Approval” has the meaning specified in the Recitals hereto.

Sanctions and Trade Control Laws” means to the extent applicable to the Blade Group (a) export controls, including the U.S. Export Administration Regulations, (b) economic sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the European Union, any European Union Member State, the United Nations and any other jurisdiction applicable to the operations of the Blade Group, (c) customs and import Laws and regulations, including Title 19 of the Code of Federal Regulations and the associated statutes or (d) the anti-boycott Laws administered by the U.S. Department of Commerce and the Department of Treasury.

Schedules” means the Blade Group Disclosure Schedules and/or the DSAQ Disclosure Schedules, as the context requires.

SEC” means the United States Securities and Exchange Commission.

Second Measurement Period” means the 12 month period ending on the final day of the month in which the third anniversary of the Closing occurs.

 

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Second Measurement Period Consolidated Revenue” means the amount of consolidated revenues of the PubCo and its Subsidiaries, on a consolidated basis, for the Second Measurement Period, as certified by PubCo’s independent auditors, subject to the qualification that the amount of such consolidated revenue has not been audited, within 30 days after the end of the Second Measurement Period.

Securities Act” means the Securities Act of 1933 and the rules and regulations promulgated thereunder.

Securities Laws” means Federal Securities Laws and other applicable foreign and domestic securities or similar Laws and the rules and regulations promulgated thereunder.

Share Acquisition Consideration” means $213,650.21.

Signing Filing” has the meaning specified in Section 7.07(e).

Signing Press Release” has the meaning specified in Section 7.07(e).

Slump Sale Consideration” means $103,595.36.

Software” means any and all (a) computer programs, including any and all software implementation of algorithms, models and methodologies, whether in source code, object code, human readable form or other form, (b) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (c) screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons and (d) documentation including user manuals and other training documentation relating to any of the foregoing.

Special Meeting” has the meaning specified in Section 7.04(b).

Sponsor” has the meaning specified in the Recitals hereto.

Sponsor Support Agreement” has the meaning specified in the Recitals hereto.

Statutory Plans” has the meaning specified in the definition of “Benefit Plan”.

Stock Exchange” means the New York Stock Exchange, New York Stock Exchange American, Nasdaq Stock Market or any other national securities exchange provided, in each case, such exchange is a recognized stock exchange for the purposes of Section 90 of the Stamp Duties Consolidation Act, 1999 of Ireland.

Subsidiary” means, with respect to a Person, any corporation (including a limited liability company, an exempted limited partnership or a partnership), exempted company or other organization, whether incorporated or unincorporated, of which such Person directly or indirectly owns or controls a majority of the securities or other interests, having by their terms ordinary voting power to elect a majority of the board of directors, or board of managers (as the case may be) or others performing similar functions with respect to such corporation, exempted company or other organization or any organization of which such Person or any of its Subsidiaries is, directly or indirectly, a general partner or managing member.

 

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Surviving SPAC” has the meaning specified in Section 2.01(b)(i).

Surviving SPAC Share” means a share of common stock, par value $0.0001 per share, of the Surviving SPAC.

Tax” means any U.S. federal, state, provincial, territorial, local, non-U.S. and other net income tax, alternative or add-on minimum tax, base erosion minimum tax, franchise tax, gross income, or gross receipts tax, employment related tax (including employee withholding, employer payroll tax or social security contributions), ad valorem, transfer, franchise, license, excise, escheat and unclaimed property, severance, stamp, occupation, premium, personal property, real property, capital stock, profits, disability, registration, value added, estimated, customs duties and sales or use tax or other tax or like assessment, together with any interest, penalty, addition to tax or additional amount imposed with respect thereto by a Governmental Authority.

Tax Return” means any return, report, statement, refund, claim, declaration, information return, election, estimate or other document filed or required to be filed with a Governmental Authority in respect of Taxes, including any schedule or attachment thereto and including any amendments thereof.

Termination Date” has the meaning specified in Section 9.01(d).

Third Measurement Period” means the 12 month period ending on the final day of the month in which the fourth anniversary of the Closing occurs.

Third Measurement Period Consolidated Revenue” means the amount of consolidated revenues of the PubCo and its Subsidiaries, on a consolidated basis, for the Third Measurement Period, as certified by PubCo’s independent auditors, subject to the qualification that the amount of such consolidated revenue has not been audited, within 30 days after the end of the Third Measurement Period.

Trademarks” has the meaning specified in the definition of “Intellectual Property”.

Transaction Conditions” means the conditions specified in Article VIII of this Agreement.

Transaction Documents” means this Agreement, the Certificate of Merger, the Principal Shareholder Support Agreements, the Sponsor Support Agreement, the Antara Subscription Agreement, the Hunch Subscription Agreement, the PIPE Subscription Agreements, the Convertible Notes, the Registration Rights Agreement, the PubCo New Articles of Association, the CVR Agreement, the definitive documentation with respect to the Hunch Reorganization and the Pre-Closing Reorganization, and all the agreements, documents, instruments and certificates entered into in connection herewith or therewith and any and all exhibits and schedules thereto.

Transaction Proposals” has the meaning specified in Section 7.04(b).

Transactions” means the transactions contemplated by this Agreement and the other Transaction Documents, including the Merger, the Note Conversion and the Pre-Closing Reorganization.

 

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Transfer” means offer for sale, sell (including short sales), transfer, tender, pledge, convert, encumber, assign, or otherwise dispose of (including by gift, merger, demerger, tendering into any tender offer, distribution, redemption, repurchase or exchange offer or otherwise).

Transfer Taxes” has the meaning specified in Section 7.06(a).

Transhermes” means Transhermes Aero IFSC Private Limited, a wholly owned subsidiary of Blade India incorporated in Gujarat International Finance Tec-City under the (Indian) International Financial Services Centres Authority Act, 2019.

Transhermes Lease Deed” means the sub-lease deed dated February 17, 2022, by and between Transhermes and Volupia pursuant to rights available to Volupia under the Volupia Lease Deed.

Treasury Regulations” means the regulations promulgated under the Code.

Triggering Event” means each of Triggering Event I, Triggering Event II and Triggering Event III.

Triggering Event I” shall occur if the First Measurement Period Consolidated Revenue is equal to or greater than $50 million.

Triggering Event I Shares” has the meaning specified in Section 2.05(b)(i).

Triggering Event II” shall occur if the Second Measurement Period Consolidated Revenue is equal to or greater than $142 million.

Triggering Event II Shares” has the meaning specified in Section 2.05(b)(ii).

Triggering Event III” shall occur if the Third Measurement Period Consolidated Revenue is equal to or greater than $263 million.

Triggering Event III Shares” has the meaning specified in Section 2.05(b)(iii).

Trust Account” has the meaning specified in Section 4.05.

Trust Agreement” has the meaning specified in Section 4.05.

Trustee” has the meaning specified in Section 4.05.

U.S. Intended Tax Treatment” has the meaning specified in the Recitals hereto.

VAT” means (a) any indirect Tax imposed in compliance with the Council Directive of November 28, 2006 on the common system of value-added Tax (EC Directive 2006/112) or (b) any indirect Tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such Tax referred to in clause (a) above, or imposed elsewhere, including any interest, penalty or addition thereto.

Volupia” means Volupia Developers Private Limited.

 

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Volupia Lease Deed” means the lease deed dated December 5, 2017, executed by GIFT SEZ in favor of Volupia.

Willful Breach” means a Party’s knowing and intentional material breach of any of its representations or warranties set forth in this Agreement, or such Party’s material breach of any of its covenants or other agreements set forth in this Agreement, which material breach constitutes, or is a consequence of, a purposeful act or failure to act by such party with the knowledge that the taking of such act or failure to take such act would cause a material breach of this Agreement.

Withholding Party” has the meaning specified in Section 2.03.

Working Capital” means (i) the current assets of PubCo and its Subsidiaries (including unrestricted cash), taken as a whole, less (ii) the sum of (a) the current liabilities of PubCo and its Subsidiaries, taken as a whole, and (b) long-term Indebtedness for borrowed money of PubCo and its Subsidiaries incurred after the date of this Agreement, taken as a whole, calculated in a manner consistent with the working capital schedule delivered to DSAQ prior to the date hereof.

Section 1.02 Construction.

(a) Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender, (ii) words using the singular or plural number also include the plural or singular number, respectively, (iii) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, (iv) the terms “Article,” “Section,” “Schedule,” “Exhibit” and “Annex” refer to the specified Article, Section, Schedule, Exhibit or Annex of or to this Agreement unless otherwise specified, (v) the word “including” shall mean “including without limitation,” (vi) the word “or” shall be disjunctive but not exclusive and (vii) the phrase “to the extent” means the degree to which a thing extends (rather than if).

(b) When used herein, “ordinary course of business” means an action taken, or omitted to be taken, in the ordinary and usual course of the referenced business consistent with past practice.

(c) Unless the context of this Agreement otherwise requires, references to agreements and other documents shall be deemed to include all subsequent amendments and other modifications thereto.

(d) Unless the context of this Agreement otherwise requires, references to statutes shall include all regulations promulgated thereunder and references to statutes or regulations shall be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation.

(e) The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent and no rule of strict construction shall be applied against any Party.

 

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(f) Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. If any action is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action may be deferred until the next Business Day.

(g) References to “$” or “dollar” or “US$” shall be references to United States dollars. Certain “$” or “dollar” or “US$” amounts contained herein may refer to the approximate equivalent amount of United States dollars based on recent exchange rates from Indian rupees to United States dollars.

(h) All accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP.

(i) The phrases “provided to,” “furnished to,” “made available to” and phrases of similar import when used herein, unless the context otherwise requires, mean that a copy of the information or material referred to has been provided no later than 5:00 p.m., New York Time, two (2) Business Days prior to the date of this Agreement to the Party to which such information or material is to be provided or furnished (i) in the virtual “data room” set up by the Principal Shareholders or an Affiliate thereof in connection with this Agreement or (ii) by delivery to such Party and its legal counsel via electronic mail.

(j) When used herein with respect to an entity formed under the laws of India, such entity will be deemed to be “wholly owned” notwithstanding the fact that, in conformity with the requirements under Indian law, a nominee of such entity’s parent entity may hold a single share of such “wholly owned” entity’s Equity Securities; provided, that such nominee is not, by virtue of its ownership of such Equity Security or otherwise, entitled to participate in the profits (other than on a nominal basis), or direct the management or governing body, of such “wholly owned” entity.

Section 1.03 Knowledge. As used herein, the phrase “knowledge” means the actual knowledge, after due inquiry, of (a) in the case of the Blade Group, (i) Amit Dutta (ii) Rajeev Verma, (iii) Payal Satish, (iv) Kunal Sanghani, (v) Col. Vijay Chandrachud, (vi) Col. VD Singh, (vii) Sanjeev Paswan, and (viii) Deepika Sharma and (b) in the case of DSAQ, (i) Dave Wentz and (ii) Mike Lohner.

Section 1.04 Equitable Adjustments. Except for the Pre-Closing Reorganization (in accordance with the terms herein), if, between the date of this Agreement and the Closing, the outstanding DSAQ Shares or shares of PubCo shall have been changed into a different number of shares or a different class by reason of any stock dividend, subdivision, reclassification, reorganization, recapitalization, split, combination or exchange of shares or any similar event shall have occurred (other than any event expressly contemplated by this Agreement), or if there shall have been any breach of this Agreement by DSAQ with respect to its Equity Securities or rights to issue Equity Securities, or by the Principal Shareholders or any member of the Blade Group with respect to Equity Securities of PubCo or rights to issue such Equity Securities, then any number, value (including dollar value) or amount contained herein that is based upon the number of Equity Securities of DSAQ or Equity Securities of PubCo (including, for the avoidance of doubt, the DSAQ Share Consideration) shall be equitably adjusted to provide the Principal Shareholders and the holders of DSAQ Shares the same economic effect as contemplated by this Agreement prior to such event; provided, however, that this Section 1.04 shall not be construed to permit any Party to take any action with respect to their respective securities or otherwise that is prohibited by the terms and conditions of this Agreement.

 

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ARTICLE II

THE MERGER AND RELATED TRANSACTIONS; CLOSING

Section 2.01 The Transactions.

(a) Pre-Closing Reorganization Consideration. Prior to the Closing and in connection with Merger, and as part of the Pre-Closing Reorganization, PubCo shall effectuate a reverse share split in accordance with the transaction steps set forth on Exhibit C with respect to the authorized issued and unissued PubCo Ordinary Shares such that the number of PubCo Class A Ordinary Shares and PubCo Class B Ordinary Shares issued and outstanding, on a fully-diluted, as converted and as exercised basis, is equal to the Pre-Closing Reorganization Consideration.

(b) Merger.

(i) Merger. On the terms and subject to the conditions set forth in this Agreement and in accordance with the DGCL and the DLLCA, at the Effective Time, Merger Sub shall merge with and into DSAQ (the “Merger”) and the separate corporate existence of Merger Sub shall thereupon cease. DSAQ shall survive the Merger (the “Surviving SPAC”) as a wholly owned Subsidiary of PubCo.

(ii) Effective Time. At the Closing, the Parties shall cause a certificate of merger, in a form reasonably satisfactory to PubCo and DSAQ (the “Certificate of Merger”), to be executed and filed with the Secretary of State of the State of Delaware. The Merger shall become effective on the date and time at which the Certificate of Merger is accepted for filing by the Secretary of State of the State of Delaware or at such later date and/or time as is agreed by PubCo and DSAQ and specified in the Certificate of Merger (the time the Merger becomes effective, the “Effective Time”).

(iii) Effect of the Merger. The Merger shall have the effects set forth in Section 251 of the DGCL and Section 18-209 of the DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the assets, properties, rights, privileges, powers and franchises of DSAQ and Merger Sub shall vest in the Surviving SPAC and all debts, liabilities, obligations and duties of DSAQ and Merger Sub shall become the debts, liabilities, obligations and duties of the Surviving SPAC, in each case, in accordance with the DGCL and the DLLCA.

(iv) Merger Sub Shares. At the Effective Time, by virtue of the Merger and without any action on the part of any Party or any other Person, each share of capital stock of Merger Sub (collectively, the “Merger Sub Shares”) issued and outstanding as of immediately prior to the Effective Time shall be automatically cancelled and extinguished and converted (in exchange for the cancellation of the capital stock of Merger Sub and the funding of the DSAQ Share Consideration) into one (1) newly issued Surviving SPAC Share.

 

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(v) Surviving SPAC Governance. At the Effective Time, the Governing Documents of Merger Sub shall be the Governing Documents of the Surviving SPAC, in each case, until thereafter changed or amended as provided therein or by applicable Law. At the Effective Time, the directors and officers of Merger Sub immediately prior to the Effective Time shall be the initial directors and officers of the Surviving SPAC, each to hold office in accordance with the Governing Documents of the Surviving SPAC until such director’s or officer’s successor is duly elected or appointed and qualified, or until the earlier of their death, resignation or removal.

(vi) Effect of the Merger on Securities of DSAQ.

(1) DSAQ Units. At the Effective Time, by virtue of the Merger and without any action on the part of any Party or any other Person, each issued and outstanding DSAQ Unit shall be automatically separated and the holder thereof shall be deemed to hold one (1) DSAQ Class A Share and one-half (1/2) of a Public Warrant, which underlying securities shall be converted or assumed, as applicable, in accordance with the applicable terms of Section 2.01(b)(vi)(2) and Section 2.01(b)(vi)(3), respectively.

(2) DSAQ Shares. At the Effective Time, by virtue of the Merger and without any action on the part of any Party or any other Person, each DSAQ Share issued and outstanding as of immediately prior to the Effective Time (other than those described in Section 2.01(b)(vi)(3)) shall be automatically cancelled and extinguished and converted into the right to receive: (A) with respect to each DSAQ Class A Share, one (1) PubCo Class A Ordinary Share and one (1) CVR I, one (1) CVR II and one (1) CVR III (collectively, the “Per Share DSAQ Class A Common Consideration”), (B) with respect to each DSAQ Class B Share, one (1) PubCo Class A Ordinary Share and one (1) CVR I, one (1) CVR II and one (1) CVR III (the “Per Share DSAQ Class B Common Consideration”, and together with the Per Share DSAQ Class A Common Consideration, the “Per Share DSAQ Common Consideration”) and (C) with respect to each DSAQ Preferred Share, one (1) PubCo Preferred Share (the “Per Share DSAQ Preferred Consideration” and all Per Share DSAQ Common Consideration and Per Share DSAQ Preferred Consideration issued to holders of DSAQ Shares in connection with the Merger, collectively, the “DSAQ Share Consideration”). From and after the Effective Time, the holder(s) of Certificates, if any, evidencing ownership of DSAQ Shares or DSAQ Shares held in book-entry form issued and outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares except as otherwise provided for herein or under applicable Law.

(3) DSAQ Warrants. At the Effective Time, unless otherwise amended by the DSAQ Warrant Amendment, without any action on the part of any Party or any other Person, each DSAQ Warrant that is outstanding immediately prior to the Effective Time shall remain outstanding but shall be assumed by PubCo and automatically adjusted to become (A) with respect to each Public Warrant, one (1) PubCo Public Warrant and (B) with respect to each Private Placement Warrant, one (1) PubCo Private Placement Warrant. The PubCo Public Warrants and PubCo Private Placement Warrants, respectively, shall be subject to substantially the same terms and conditions set forth in the Public Warrant or Private Placement Warrant, as applicable, immediately prior to the

 

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Effective Time, except that each such warrant shall be exercisable (or will become exercisable in accordance with their terms) for (i) one PubCo Class A Ordinary Share and (ii) one (1) CVR I, one (1) CVR II and one (1) CVR III, in lieu of DSAQ Class A Shares (subject to the PubCo Warrant Agreement). At or prior to the Effective Time, PubCo shall take all corporate action necessary to reserve for future issuance, and shall maintain such reservation for so long as any of the PubCo Warrants remain outstanding, a sufficient number of PubCo Class A Ordinary Shares for delivery or issuance upon the exercise of such PubCo Warrants. From and after the Effective Time, the holders of DSAQ Warrants prior to the Effective Time shall cease to have any rights with respect to such warrants except as otherwise provided herein or under applicable Law.

(4) Cancellation of Treasury Shares. At the Effective Time, by virtue of the Merger and without any action on the part of any Party or any other Person, each DSAQ Share held immediately prior to the Effective Time by DSAQ in treasury shall be automatically canceled and extinguished, and no consideration shall be paid with respect thereto.

(5) Stock Transfer Books. At the Effective Time, the stock transfer books of DSAQ shall be closed and no Transfer of DSAQ Units, DSAQ Shares or DSAQ Warrants shall be made thereafter.

Section 2.02 Closing.

(a) On the terms and subject to the conditions set forth in this Agreement, the closing of the Merger (the “Closing”) shall take place electronically by the mutual exchange of electronic signatures (including portable document format (.PDF)) (a) as promptly as practicable (and in any event no later than 9:00 a.m., New York time, on the third Business Day) following the satisfaction or (to the extent permitted by applicable Law) waiver of the Transaction Conditions (other than any Transaction Conditions that by their terms or nature are to be satisfied at the Closing, but subject to the satisfaction or (to the extent permitted by applicable Law) waiver of such Transaction Conditions at the Closing) or (b) at such other place, time or date as the Parties may agree in writing. The date on which the Closing actually occurs is referred to in this Agreement as the “Closing Date.”

(b) Closing Statements.

(i) DSAQ Closing Statement. At least three (3) Business Days prior to the Closing Date, DSAQ shall prepare and deliver to PubCo a written statement (the “DSAQ Closing Statement”) setting forth its good faith estimate and calculation of all unpaid fees and disbursements in respect of DSAQ Transaction Expenses (together with written invoices and wire transfer instructions for the payment thereof) (collectively, the “Outstanding DSAQ Expenses”). The DSAQ Closing Statement and each component thereof shall be prepared and calculated in accordance with the definitions contained in this Agreement. From and after delivery of the DSAQ Closing Statement and through the Closing Date, DSAQ shall (x) cooperate with and provide PubCo and its Representatives all information reasonably requested by PubCo or any of its Representatives and within DSAQ’s or its Representative’s possession or control in connection with PubCo’s review of the DSAQ Closing Statement and (y) consider in good faith any comments to the DSAQ Closing Statement provided by PubCo, and DSAQ shall revise such DSAQ Closing Statement to incorporate any changes DSAQ determines are necessary or appropriate given such comments.

 

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(ii) PubCo Closing Statement. On the date that is three (3) Business Days prior to the Closing Date, PubCo shall deliver to DSAQ a written statement (the “PubCo Closing Statement”) setting forth (A) its good faith estimate or calculation of (1) all unpaid fees and disbursements in respect of Blade Group Transaction Expenses (together with written invoices and wire transfer instructions for the payment thereof) (collectively, the “Outstanding PubCo Expenses”) and (2) the Net Available Closing Cash, and (B) (1) the issued and outstanding Equity Securities of PubCo following the Closing, (2) the number of PubCo Class A Ordinary Shares and PubCo Class B Ordinary Shares held by each holder of Equity Securities of PubCo as of immediately following the Pre-Closing Reorganization, and (3) any related items agreed upon by the Parties. Following DSAQ’s receipt of the PubCo Closing Statement and through the Closing Date, DSAQ shall have the right to review and comment on such calculations and estimates. PubCo shall consider and reflect in good faith any such comments made by DSAQ, and PubCo and DSAQ shall cooperate with each other through the Closing Date and use good faith efforts to resolve any differences regarding the calculation of the items set forth on the PubCo Closing Statement (and any updates or revisions as may be agreed to by PubCo and DSAQ shall be included in the PubCo Closing Statement). PubCo shall, and shall cause its Representatives to, (A) reasonably cooperate with DSAQ and its Representatives to the extent related to DSAQ’s review of the PubCo Closing Statement and the calculations and estimates contained therein (including engaging in good faith discussions related thereto) and (B) provide access to personnel, books, records and other information during normal business hours to the extent related to the preparation of the PubCo Closing Statement and reasonably requested by DSAQ or its Representatives in connection with such review; provided, that DSAQ shall not, and shall cause its Representatives to not, unreasonably interfere with the normal operation of PubCo or any other member of the Blade Group in connection with any such access.

Section 2.03 Withholding Rights. Notwithstanding anything in this Agreement to the contrary, DSAQ, Merger Sub, IndiaCo, PubCo, the Surviving SPAC and their respective Affiliates, and any applicable withholding agent (each, a “Withholding Party”) shall be entitled to deduct and withhold from amounts otherwise payable pursuant to this Agreement, any amount required to be deducted and withheld with respect to the making of such payment under applicable Law; provided, that if any Withholding Party determines that any amounts payable pursuant to this Agreement is subject to deduction and/or withholding (other than any withholding required in respect of compensatory amounts or amounts paid to a public shareholder of any of the Parties), then such Withholding Party shall (a) provide notice to such Person as soon as reasonably practicable after such determination and (b) cooperate with such Person to reduce or eliminate any such deduction or withholding to the extent permitted by applicable Law. To the extent that amounts are so withheld and paid over to the appropriate Governmental Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. Any amounts so withheld shall be timely remitted to the applicable Governmental Authority.

 

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Section 2.04 Fractional Shares. Notwithstanding anything to the contrary contained herein, no fraction of a PubCo Ordinary Share will be issued, and, if applicable, no fraction of a PubCo Warrant will be assumed, by PubCo by virtue of this Agreement or the Transactions, and each Person who would otherwise (x) be entitled to a fraction of a PubCo Ordinary Share (after aggregating all fractional PubCo Ordinary Shares that would otherwise be received by such Person) shall instead have the number of PubCo Ordinary Shares issued to such Person rounded down in the aggregate to the nearest whole PubCo Ordinary Share and (y) hold a fraction of a PubCo Warrant (after aggregating all fractional PubCo Warrants that would otherwise be received by such Person) shall instead have the number of PubCo Warrants held by such Person rounded down in the aggregate to the nearest whole PubCo Warrant.

Section 2.05 PubCo Class B Ordinary Share Consideration and Redesignation to PubCo Class A Ordinary Shares.

(a) PubCo Class B Ordinary Shares Generally. By virtue of each Principal Shareholder’s execution of the Principal Shareholder Support Agreement, the Principal Shareholders have agreed that, in connection with the Pre-Closing Reorganization, a portion of the Pre-Closing Reorganization Consideration held by the Principal Shareholders and any other holder of Equity Securities of PubCo as of immediately prior to the consummation of the Pre-Closing Reorganization (excluding Equity Securities issued or issuable pursuant to the Bridge Investment) will consist of the PubCo Class B Ordinary Shares in the amounts set forth on the PubCo Closing Statement. If the applicable Triggering Event does not occur during the applicable Measurement Period, all economic rights previously attributable to the PubCo Class B Ordinary Shares that are subject to such Measurement Period shall cease to apply with respect to such PubCo Class B Ordinary Shares (provided, for the avoidance of doubt, that such PubCo Class B Ordinary Shares shall retain the voting rights attributed to such PubCo Class B Ordinary Shares to the extent in accordance with the PubCo New Articles of Association). The PubCo Class B Ordinary Shares shall become redesignated as PubCo Class A Ordinary Shares (which shall be transferable (and the economic rights thereunder shall no longer be subject to forfeiture) in accordance with the PubCo New Articles of Association and pursuant to the terms of this Section 2.05). Any certificates representing the PubCo Class B Ordinary Shares shall bear a legend referencing that they are subject to restrictions on transfer pursuant to the provisions of this Agreement, and any transfer agent for PubCo Ordinary Shares will be given appropriate stop transfer orders that will be in effect until the applicable PubCo Class B Ordinary Shares become transferable pursuant to the terms of this Section 2.05.

(b) Transferability of PubCo Measurement Period Shares. The PubCo Class B Ordinary Shares shall become transferable (and the economic rights thereunder shall no longer be subject to forfeiture) as follows:

(i) upon the occurrence of Triggering Event I, (A) 2,000,000 of the PubCo Class B Ordinary Shares shall redesignate as PubCo Class A Ordinary Shares in the proportions set forth on the PubCo Closing Statement (the “Triggering Event I Shares”), and (B) thereafter, such PubCo Class A Ordinary Shares shall be transferable, in each case, in accordance with the PubCo New Articles of Association;

 

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(ii) upon the occurrence of Triggering Event II, (A) 2,000,000 of the PubCo Class B Ordinary Shares shall redesignate as PubCo Class A Ordinary Shares in the proportions set forth on the PubCo Closing Statement (the “Triggering Event II Shares”), and (B) thereafter, such PubCo Class A Ordinary Shares shall be transferable, in each case, in accordance with the PubCo New Articles of Association; and

(iii) upon the occurrence of Triggering Event III, (A) 2,000,000 of the PubCo Class B Ordinary Shares shall redesignate as PubCo Class A Ordinary Shares in the proportions set forth on the PubCo Closing Statement (the “Triggering Event III Shares” and, together with the Triggering Event I Shares and the Triggering Event II Shares, the “Measurement Period Shares”), and (B) thereafter, such PubCo Class A Ordinary Shares shall be transferable, in each case, in accordance with the PubCo New Articles of Association.

(c) Cessation of Economic Rights with respect to PubCo Class B Ordinary Shares.

(i) In the event that at the end of the First Measurement Period, Triggering Event I has not occurred, all rights with respect to dividends and distributions, rights on liquidation or dissolution and all other economic rights under the PubCo New Articles of Association attributable to the PubCo Class B Ordinary Shares shall cease to apply with respect to 2,000,000 PubCo Class B Ordinary Shares (in the proportions set forth on the PubCo Closing Statement); provided, for the avoidance of doubt, that such PubCo Class B Ordinary Shares shall retain the voting rights attributed to such PubCo Class B Ordinary Shares to the extent in accordance with the PubCo New Articles of Association.

(ii) In the event that at the end of the Second Measurement Period, Triggering Event II has not occurred, all rights with respect to dividends and distributions, rights on liquidation or dissolution and all other economic rights under the PubCo New Articles of Association attributable to the PubCo Class B Ordinary Shares shall cease to apply with respect to 2,000,000 PubCo Class B Ordinary Shares (in the proportions set forth on the PubCo Closing Statement); provided, for the avoidance of doubt, that such PubCo Class B Ordinary Shares shall retain the voting rights attributed to such PubCo Class B Ordinary Shares to the extent in accordance with the PubCo New Articles of Association.

(iii) In the event that at the end of the Third Measurement Period, Triggering Event III has not occurred, all rights with respect to dividends and distributions, rights on liquidation or dissolution and all other economic rights under the PubCo New Articles of Association attributable to the PubCo Class B Ordinary Shares shall cease to apply with respect to 2,000,000 PubCo Class B Ordinary Shares (in the proportions set forth on the PubCo Closing Statement); provided, for the avoidance of doubt, that such PubCo Class B Ordinary Shares shall retain the voting rights attributed to such PubCo Class B Ordinary Shares to the extent in accordance with the PubCo New Articles of Association.

 

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(d) The Measurement Period Shares shall be adjusted as appropriate to reflect any share splits, reverse share splits, share dividends, extraordinary cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change or transaction with respect to PubCo Ordinary Shares occurring on or after the Closing (for the avoidance of doubt, other than any issuance of PubCo Class A Ordinary Shares pursuant to the CVRs). Share dividends shall include any dividend or distribution of securities convertible into PubCo Ordinary Shares. The adjustments made pursuant to this Section 2.05 shall be subject to the reasonable mutual agreement of PubCo and DSAQ.

(e) Notwithstanding anything to the contrary contained in this Agreement, PubCo Class B Ordinary Shares that become transferable in accordance with this Section 2.05 shall remain subject to any other conditions contained in any other agreements to which the holder is subject.

(f) The holder of a PubCo Class B Ordinary Share may not Transfer such PubCo Class B Ordinary Share unless and until such PubCo Class B Ordinary Share is redesignated as a PubCo Class A Ordinary Share in connection with the occurrence of Triggering Event I, Triggering Event II or Triggering Event III, as applicable, with respect to such PubCo Class B Ordinary Share (subject, in each case, to Section 2.05(e)). PubCo shall not, and shall cause its Subsidiaries not to, take or omit any action that has the specific intent of avoiding, reducing or preventing the achievement or attainment of any Triggering Event subject in all respects to any applicable Laws.

ARTICLE III

REPRESENTATIONS AND WARRANTIES RELATING TO THE BLADE GROUP

Except as set forth in the Blade Group Disclosure Schedules (but subject to the terms of Section 10.08), each member of the Blade Group hereby, jointly and severally, represents and warrants to DSAQ as follows:

Section 3.01 Corporate Organization; Due Authorization.

(a) Each member of the Blade Group is a corporation, exempted company, limited liability company, private limited company or other applicable business entity duly organized, incorporated or formed, as applicable, validly existing and in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) under the Laws of its jurisdiction of formation, incorporation or organization (as applicable). Each member of the Blade Group has the requisite corporate or other entity power and authority to own, operate and lease its properties, rights and assets and to conduct its business as presently conducted, except where the failure to have such power or authority would not reasonably be expected to be, individually or in the aggregate, material to the Blade Group. Each member of the Blade Group is duly licensed or qualified as a foreign corporation or other entity in each jurisdiction in which its ownership of property or the character of its activities is such as to require it to be so licensed or qualified, except where the failure to be so licensed or qualified would not reasonably be expected to be, individually or in the aggregate, material to the Blade Group.

 

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(b) Each of PubCo, IndiaCo, Blade India and Merger Sub has the requisite corporate, limited liability company or other similar power and authority to execute and deliver this Agreement and each other Transaction Document to which it is a party or will be a party and to perform its obligations hereunder and thereunder and to consummate the Transactions and the Hunch Reorganization. Subject to the filing and effectiveness of the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the DGCL and the DLLCA, the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the Transactions and the Hunch Reorganization have been duly authorized by all necessary corporate (or other similar) action on the part of each of PubCo, IndiaCo, Blade India and Merger Sub and no other Proceeding on the part of any of PubCo, IndiaCo, Blade India or Merger Sub is necessary to authorize this Agreement or such other Transaction Documents or performance by PubCo, IndiaCo, Blade India or Merger Sub hereunder or thereunder. This Agreement has been, and each other Transaction Document to which any of PubCo, IndiaCo, Blade India or Merger Sub will be party, shall be, duly and validly executed and delivered by PubCo, IndiaCo, Blade India or Merger Sub, respectively, and, assuming due authorization and execution by each other Party hereto and thereto, this Agreement constitutes, and each such other Transaction Document to which PubCo, IndiaCo, Blade India or Merger Sub, as applicable, will be party, shall constitute a legal, valid and binding obligation of PubCo, IndiaCo, Blade India or Merger Sub, as applicable, enforceable against PubCo, IndiaCo, Blade India or Merger Sub, as applicable, in accordance with its terms, subject to the Enforceability Exceptions.

Section 3.02 Governing Documents.

(a) The copies of the Governing Documents of each member of the Blade Group as in effect on the date of this Agreement (a) have been previously made available by PubCo to DSAQ, (b) are true, correct and complete, (c) are in full force and effect and (d) have not been amended through the date of this Agreement.

(b) Each member of the Blade Group is and, since April 1, 2020, has been in compliance in all material respects with its Governing Documents. The books and records, including without any limitation the statutory books, minute books and statutory registers of the Blade Group are true, complete and correct in all material respects and have been maintained in accordance with the requirements of all applicable Laws in all material respects.

Section 3.03 Consents and Requisite Governmental Approvals; No Violations.

(a) No action by, notice, consent, approval, waiver or authorization of, or designation, declaration or filing with, any Governmental Authority is required on the part of any member of the Blade Group with respect to the execution, delivery or performance by any of PubCo, IndiaCo, Blade India or Merger Sub of its obligations under this Agreement or the other Transaction Documents to which it is or will be party or the consummation of the Transactions and the Hunch Reorganization, except for (i) compliance with and filings under the HSR Act or under any applicable antitrust or other competition Laws of any non U.S. jurisdictions (collectively, “Foreign Antitrust Laws”), (ii) the filing with the SEC of (A) the Registration Statement/Proxy Statement and the declaration of the effectiveness thereof by the SEC and (B) such reports under Section 13(a) or 15(d) of the Exchange Act as may be required in connection with this Agreement, the other Transaction Documents or the Transactions and the Hunch

 

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Reorganization, (iii) such filings with and approvals of the applicable Stock Exchange to permit PubCo Class A Ordinary Shares and, if applicable, PubCo Warrants to be issued in accordance with this Agreement to be listed on such Stock Exchange, (iv) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the DGCL and the DLLCA or (v) any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Transactions and the Hunch Reorganization.

(b) Neither the execution nor delivery of this Agreement or any other Transaction Document to which PubCo, IndiaCo, Blade India or Merger Sub is or will be a party, the performance by PubCo, IndiaCo, Blade India or Merger Sub of its obligations hereunder or thereunder or the consummation of the Transactions and the Hunch Reorganization shall, directly or indirectly (with or without due notice or lapse of time or both), (i) result in a violation or breach of any provision of the Governing Documents of any member of the Blade Group, (ii) assuming compliance with the matters referred to in Section 4.03(a), result in a violation or breach of, or constitute a default or give rise to any right of termination, consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of (x) any Material Contract to which any member of the Blade Group is a party; (y) any Material Permits set forth on Section 3.15 of the Blade Group Disclosure Schedules (or required to be set forth on Section 3.15 of the Blade Group Disclosure Schedules); or (z) any material Leases that any member of the Blade Group is a party or by which any of them or any of their respective assets or properties may be bound or affected, (iii) result in the creation of any Lien upon any of the properties, equity interests or assets of the Blade Group (other than any Permitted Lien) or (iv) violate, or constitute a breach under, any Data Privacy Requirement or any Governmental Order or applicable Law to which any member of the Blade Group and any of their respective properties or assets are subject or bound, except in the case of any of clauses (ii) and (iii) above, as would not reasonably be expected to (A) be, individually or in the aggregate, material to the Blade Group, or (B) prevent, materially delay or materially impair the consummation of the Transactions.

(c) To the knowledge of the Blade Group, the members of the Blade Group and the Principal Shareholders (to the extent of their direct or indirect shareholding in the Blade Group) are in compliance with the requirements of Press Note 3.

Section 3.04 Capitalization.

(a) Section 3.04(a) of the Blade Group Disclosure Schedules sets forth a true and complete statement of (a) the number, class or series (as applicable) and par value of all of the Equity Securities of each member of the Blade Group issued and outstanding and (b) the identity of the Persons that are the legal, record and beneficial owners thereof, in each case, as of the date of this Agreement. As of immediately prior to the Closing, following the consummation of the Pre-Closing Reorganization, the issued share capital of PubCo shall consist solely of 24,697,973 PubCo Class A Ordinary Shares with a nominal value of $0.0001 each, 16,465,315 PubCo Class B Ordinary Shares with a nominal value of $0.0001 each and 0 Deferred Shares with a nominal value of €1.00 each. As of the date of this Agreement, the applicable Persons set forth on Section 3.04(a) of the Blade Group Disclosure Schedules have good and valid title to all of the issued and outstanding Equity Securities of the members of the Blade Group as set forth on Section 3.04(a)

 

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of the Blade Group Disclosure Schedules. All of the issued and outstanding Equity Securities of the Blade Group (i) have been duly authorized and validly issued or transferred (as the case may be), including pursuant to payment of requisite stamp duties under applicable Laws, and are fully paid and nonassessable, (ii) were not issued or transferred (as the case may be) in violation of the Governing Documents of the Blade Group or any Contract to which any member of the Blade Group is party or bound, (iii) were not issued or transferred (as the case may be) in violation of any preemptive rights, call option, right of first refusal or first offer, subscription rights, transfer restrictions or similar rights of any Person, (iv) have been offered, transferred, sold and issued in compliance with applicable Law, including Securities Laws and (v) are free and clear of all Liens (other than transfer restrictions under applicable Securities Law). There are no outstanding (A) equity appreciation, phantom equity or profit participation rights or (B) options, restricted stock, restricted stock units, performance stock units, phantom stock, warrants, purchase rights, subscription rights, conversion rights, exchange rights, calls, puts, rights of first refusal or first offer or other Contracts that could require any member of the Blade Group to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem any Equity Securities or securities convertible into or exchangeable for Equity Securities of such member of the Blade Group (or any other member of the Blade Group), other than as contemplated by the Transaction Documents and the Transactions. There are no voting trusts, proxies or other Contracts with respect to the voting or Transfer of any of the Equity Securities of the members of the Blade Group to which any member of the Blade Group is party or by which it is bound, other than as contemplated by the Transaction Documents and the Transactions.

(b) There are no outstanding bonds, debentures, notes or other Indebtedness of the Blade Group having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter for which the holders of the Equity Securities of any member of the Blade Group may vote. Section 3.04(b) of the Blade Group Disclosure Schedules sets forth a list of all Indebtedness of the Blade Group for borrowed money as of the date of this Agreement, including, as applicable, the principal amount of such Indebtedness, the outstanding balance, and the debtor and the creditor thereof, as applicable.

(c) As of date of this Agreement, PubCo has entered into the Hunch Subscription Agreement with Hunch, pursuant to which, and on the terms and subject to the conditions of which, Hunch has agreed, in connection with the Transactions, to purchase PubCo Preferred Shares for an aggregate investment amount of $3,000,000. As of the date of this Agreement, the Hunch Subscription Agreement is in full force and effect with respect to, and binding on, PubCo and, to PubCo’s knowledge, on each other party thereto, in accordance with its terms.

Section 3.05 Subsidiaries.

Except for the Equity Securities of the members of the Blade Group set forth on Section 3.04(a) of the Blade Group Disclosure Schedules (and any changes to such Equity Securities expressly contemplated by the Pre-Closing Reorganization), no member of the Blade Group (i) owns, directly or indirectly, any ownership, equity, profits or voting interest in any Person, (ii) has any agreement or commitment to purchase any such interest (excluding, for the avoidance of doubt, in connection with the Transaction Documents and the Transactions, including the Pre-Closing Reorganization) or (iii) has agreed nor is obligated to make nor is bound by any written, oral or other Contract, binding understanding, option, warranty or undertaking of any nature, as of the date hereof to make, any future investment in or capital contribution to any other entity (excluding, for the avoidance of doubt, in connection with the Transaction Documents and the Transactions, including the Pre-Closing Reorganization in accordance with the terms herein).

 

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Section 3.06 Financial Statements.

(a) Copies of the unaudited consolidated balance sheets of Blade India as of March 31, 2022 and March 31, 2023, and the related unaudited consolidated statements of comprehensive income and cash flows of Blade India for the years then ended, and the related notes and schedules thereto (collectively, the “Financial Statements,” each of which are attached as Section 3.06 of the Blade Group Disclosure Schedules) are true, correct and complete. Each of the Financial Statements (including the notes thereto) (i) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and (ii) fairly presents, in all material respects, the financial position, results of operations and cash flows of Blade India and its Subsidiaries, as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein.

(b) The Blade Group maintains 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.

(c) Since April 1, 2020, (i) Blade India has not been made aware or notified in writing of any “material weaknesses” or “significant deficiencies” in the system of internal accounting controls utilized by Blade India and (ii) Blade India has not received any written complaint, allegation, assertion or claim of fraud, whether or not material, that involves management or other employees of Blade India who have a significant role in the internal controls over financial reporting of Blade India.

Section 3.07 Undisclosed Liabilities. Except for Liabilities (a) reflected or reserved for on the Most Recent Balance Sheet, (b) incurred in the ordinary course of business since the date of the Most Recent Balance Sheet (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law other than, for the avoidance of doubt, any such Liabilities that would be covered by clause (d) of this Section 3.07), or (c) incurred in connection with the negotiation, preparation or execution of this Agreement, any other Transaction Document, the performance of their respective covenants or agreements in this Agreement or any other Transaction Document or the consummation of the Transactions, the Blade Group does not have any Liabilities that are required by GAAP to be set forth on a consolidated balance sheet of the Blade Group. No member of the Blade Group is a party to any “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K promulgated by the SEC).

 

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Section 3.08 Litigation. There are, and since April 1, 2020, there have been, no Proceedings pending or, to the Blade Group’s knowledge, threatened in writing against or involving (a) any member of the Blade Group, (b) any of the Blade Group’s material assets or properties (which, in all events, shall include all Owned Real Property and all Leased Real Property), or (c) any of the Blade Group’s managers, officers or directors or, to the Blade Group’s knowledge, any of the Blade Group’s employees (in each case, in their capacities as such) (in the case of each of clauses (a) through (c), seeking material non-monetary relief or involving an amount in controversy that would reasonably be expected to be, individually or in the aggregate, material to the Blade Group) or (d) any of the foregoing in such capacity in a criminal Proceeding. Neither the Blade Group nor any of their properties, assets or businesses are subject to any Governmental Order, or, to the Blade Group’s knowledge, any continuing investigation by, any Governmental Authority, in each case that would reasonably be expected to be, individually or in the aggregate, material to the Blade Group. Since the Formation Date through the date of this Agreement, there have been no material Proceedings by any member of the Blade Group pending against any other Person.

Section 3.09 Compliance with Laws.

(a) Since April 1, 2020, the Blade Group (i) has in all material respects conducted its business in accordance with all Laws applicable to the Blade Group and has been (and presently is) in compliance in all material respects with all Laws and (ii) has not received any communications from a Governmental Authority that alleges that any member of the Blade Group is not in compliance with any such Law in all material respects.

(b) Since April 1, 2021, the Blade Group (i) has conducted its business in accordance with, and has been (and presently is) in compliance in all material respects with all Aviation Laws applicable to it and (ii) has not received any written communications from a Governmental Authority that alleges that any member of the Blade Group is not in compliance in any material respect with any Aviation Law. At the time of onboarding of the Operators, and to the knowledge of the Blade Group on the basis of periodic review of the Operator’s Permits by the Blade Group, all Operators have all requisite Permits required to perform their respective commitments towards, and obligations with respect to, the members of the Blade Group. To the knowledge of the Blade Group, no Operator has received any communication from (i) an Aviation Authority alleging such Operator of not being in compliance with any Aviation Law; or (ii) any other Person of a dispute or claim, in each case in connection with such Operators’ arrangements with the Blade Group.

(c) The Blade Group and, to the knowledge of the Blade Group, the Principal Shareholders (i) have complied in all material respects with Indian Foreign Exchange Control Laws and (ii) have not received any communications from a Governmental Authority that alleges that any member of the Blade Group or any Principal Shareholder is not in compliance with the Indian Foreign Exchange Control Laws in relation to the Principal Shareholders’ direct or indirect shareholding in the Blade Group.

(d) Since April 1, 2020, no member of the Blade Group nor any of their respective directors, officers, employees or, to the Blade Group’s knowledge, agents or other Persons acting on their behalf, has taken, directly or knowingly indirectly, any act in furtherance of an offer, payment, promise to offer or to pay, authorization, ratification, solicitation, receipt or acceptance of the payment, directly or indirectly, of any gift, money, payment, loan, reward, contribution or any other thing of value to or from any Person to influence any act or decision of such Person, to secure any other improper advantage or to obtain or retain business, or that would otherwise cause the Blade Group to be in material violation of Anti-Corruption Laws.

 

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(e) None of the members of the Blade Group, nor any director, officer or employee of any of the foregoing, nor, to the Blade Group’s knowledge, any Representative authorized to act for or on behalf of the Blade Group is or at any time since April 1, 2020 has been (i) a Person named on any Sanctions and Trade Control Laws-related list of designated Persons maintained by a relevant Governmental Authority (including the Specially Designated Nationals List maintained by the US Department of the Treasury’s Office of Foreign Assets Control), (ii) located, organized or resident in a country or territory (or government thereof) which is itself the subject of or target of comprehensive Sanctions and Trade Control Laws (at the time of this Agreement, the Crimea region of Ukraine, the so-called “Donetsk People’s Republic,” the so-called “Luhansk People’s Republic,” Cuba, Iran, North Korea, Venezuela and Syria) or (iii) an entity controlled or 50% or greater owned, directly or indirectly, by one or more Persons described in clause (i) or (ii).

(f) Since April 1, 2020, none of the members of the Blade Group or any director, officer or employee of any of the foregoing, or, to the Blade Group’s knowledge, any Representative, agent or any other Person authorized to act for or on behalf of any member of the Blade Group has (i) engaged in, and is not now engaging in, directly or knowingly indirectly, any dealings or transactions with or for the benefit of any Person referenced in any of clause (i) through (iii) of the preceding Section 3.09(e), or with or for the benefit of any other Person who is the subject or target of Sanctions and Trade Control Laws in violation of applicable Sanctions and Trade Control Laws or (ii) otherwise been in violation of any applicable Sanctions and Trade Control Laws.

(g) Since April 1, 2020, no member of the Blade Group (i) has been subjected to any action, Proceedings, investigation, written request for information or other inquiry by a Governmental Authority regarding any alleged noncompliance with Anti-Corruption Laws, (ii) has made a voluntary, directed or involuntary disclosure to any Governmental Authority regarding any alleged noncompliance with any Anti-Corruption Laws or Sanctions and Trade Control Laws or (iii) has received any written notice of any violations of applicable Anti-Corruption Laws or Sanctions and Trade Control Laws or Governmental Orders or Permits issued or required thereunder held by the Blade Group.

(h) The operations of the Blade Group have been since April 1, 2020 conducted at all times in compliance in all material respects with the requirements of applicable anti-money laundering Laws, including the Bank Secrecy Act of 1970, as amended by the USA Patriot Act of 2001, and the rules and regulations promulgated thereunder, and the anti-money laundering Laws of the various jurisdictions in which the Blade Group conducts business (collectively, the “Money Laundering Laws”). As of the date of this Agreement, no Proceeding involving any member of the Blade Group with respect to the Money Laundering Laws is pending or, to the Blade Group’s knowledge, threatened.

 

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Section 3.10 Material Contracts.

(a) Section 3.10(a) of the Blade Group Disclosure Schedules sets forth a list of the following Contracts to which a member of the Blade Group is, as of the date of this Agreement, a party to or bound by (each Contract required to be set forth on Section 3.10(a) of the Blade Group Disclosure Schedules, together with each Contract entered into after the date of this Agreement that would be required to be set forth on Section 3.10(a) of the Blade Group Disclosure Schedules if entered into prior to the date of this Agreement, collectively, the “Material Contracts”). True, complete and correct copies of the following Material Contracts in effect as of the date hereof have been made available to DSAQ:

(i) each of the 10 largest Contracts (determined based on aggregate consideration received by the Blade Group thereunder) of the Blade Group for the calendar years ended December 31, 2021 and December 31, 2022;

(ii) any Contract relating to Indebtedness for borrowed money of any member of the Blade Group or the placing of a Lien (other than Permitted Liens) on any material assets or properties of any member of the Blade Group;

(iii) any Contract for the disposition of any portion of the assets or business of the Blade Group or for the acquisition by the Blade Group or of the assets or business of any other Person (including through merger or consolidation or the purchase of a controlling equity interest in or substantially all of the assets of such Person or by any other manner) in each case (A) for an aggregate purchase price in excess of $100,000 or (B) under which the Blade Group has any continuing obligation (contingent or otherwise) with respect to an “earn out,” contingent purchase price, indemnification, backend payment or other contingent or deferred payment obligation;

(iv) any Contract under which a member of the Blade Group is a lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $100,000;

(v) any Contract under which a member of the Blade Group is a lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by any member of the Blade Group, except for any lease or agreement under which the aggregate annual rental payments do not exceed $100,000;

(vi) any Contract with outstanding obligations for the sale or purchase of personal property, fixed assets or real estate having a value in excess of $250,000, other than sales or purchases in the ordinary course of business and sales of obsolete equipment;

(vii) any Contract requiring any future capital expenditure (or series of capital expenditures) by the Blade Group in an amount in excess of (A) $200,000 annually or (B) $500,000 over the term of the agreement;

 

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(viii) any Contract that (A) limits or purports to limit, in any material respect, the freedom of any member of the Blade Group to engage or compete in any line of business or with any Person or in any area, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions, (C) contains “take or pay,” “requirements” or other similar provisions obligating any member of the Blade Group to provide the quantity of goods or services required by another Person or (D) contains any other provisions materially restricting or purporting to restrict the ability of any member of the Blade Group to sell, manufacture, develop, commercialize, directly or indirectly through third parties, or to solicit any potential employee or customer, in the case of each of the foregoing clauses (A), (B), (C) and (D), that would so limit or purports to limit, in any material respect, PubCo or any of its Affiliates after the Closing;

(ix) any Contract (A) pursuant to which (1) any third party grants any member of the Blade Group a license, right, permission, consent, non-assertion or release with respect to any Intellectual Property material to the Blade Group or (2) the Blade Group grants a license, right, permission, consent, non-assertion or release with respect to any Owned IP material to the Blade Group, (B) that relates to the ownership, development or use of any Intellectual Property material to the Blade Group or (C) that affects the Blade Group’s ability to use, enforce or disclose any Intellectual Property material to the Blade Group, excluding in the case of either (A) or (B), (x) non-exclusive end-user licenses granted to the Blade Group for unmodified, commercially available, off-the-shelf Software with aggregate fees of less than $50,000 and (y) non-exclusive licenses granted by any member of the Blade Group to its customers in the ordinary course of business;

(x) any Contract requiring any member of the Blade Group to guarantee the Liabilities of any Person (other than another member of the Blade Group) or pursuant to which any Person (other than another member of the Blade Group) has guaranteed the Liabilities of the Blade Group, in each case in excess of $100,000;

(xi) any Contract under which the Blade Group has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person (other than another member of the Blade Group), individually or in the aggregate, in an amount in excess of $100,000 or made any capital contribution to, or other investment in, any Person (other than another member of the Blade Group);

(xii) any material advertising, agency, joint marketing or other Contract the performance of which requires either (A) annual payments to or from the Blade Group in excess of $100,000 or (B) aggregate payments to or from the Blade Group in excess of $250,000 over the term of the agreement and, in each case, that is not terminable by the Blade Group without penalty upon less than sixty (60) days’ prior written notice;

(xiii) any collective bargaining agreement or other Contract with any labor union, works council or labor organization (each, a “Labor Agreement”);

(xiv) any Contract for the employment or engagement of any director, officer, employee or other service provider of the Blade Group that (A) provides for annual compensation in excess of $100,000, (B) provides for the payment and/or accelerated vesting of any compensation or benefits upon the consummation of the transactions contemplated by this Agreement, or (C) otherwise restricts the Blade Group’s ability to terminate the employment or engagement of such individual at any time for any reason or no reason without penalty or liability;

 

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(xv) any Contract with a third party establishing any joint venture, partnership, strategic alliance or other collaboration that is material to the business of the Blade Group;

(xvi) any Contract between (A) a member of the Blade Group, on the one hand, and any (B) current or former officer, director, employee, partner, member, manager, beneficial owner (within the meaning of Section 13(d) of the Exchange Act) of five percent (5%) or more of the Equity Securities of any member of the Blade Group or other Affiliate of the Blade Group or any immediate family member of the foregoing Persons, on the other hand (in each case, other than Contracts solely among members of the Blade Group) (each Person identified in this clause (B), a “Blade Group Related Party”);

(xvii) any Contract with a Governmental Authority involving annual payments in excess of $100,000;

(xviii) any settlement, conciliation or similar Contract (A) the performance of which would be reasonably expected to involve any payments in excess of $100,000 after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any continuing material obligations on the Blade Group (or PubCo or any of its Affiliates after the Closing); and

(xix) documents required to be filed with the Registration Statement/ Proxy Statement under applicable SEC requirements or would otherwise be required to be filed by a member of the Blade Group as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if such member of the Blade Group was the registrant.

(b) Each Material Contract is, as of the date of this Agreement, (i) in full force and effect, and (ii) a legal, valid and binding obligation of the applicable member of the Blade Group party thereto, enforceable in accordance with its terms against the applicable member of the Blade Group party thereto and, to the Blade Group’s knowledge, the other parties thereto, in each case, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting or relating to creditors’ rights generally and subject, as to enforceability, to general principles of equity, whether such enforceability is considered in a Proceeding in equity or at Law (the “Enforceability Exceptions”). As of the date of this Agreement, except, in each case, as would not reasonably be expected to be, individually or in the aggregate, material to the Blade Group, there is no breach or default by the Blade Group or, to the Blade Group’s knowledge, any third party under any Material Contract, and, to the Blade Group’s knowledge, (A) no event has occurred which (with or without notice or lapse of time or both) would constitute a breach or default or would permit termination of, or a modification or acceleration thereof by any party to, such Material Contract and (B) no party to a Material Contract has claimed a force majeure (or similar excuse in performance due to COVID-19) with respect thereto. Except, in each case, as would not reasonably be expected to be, individually or in the aggregate, material to the Blade Group, to the Blade Group’s knowledge, within the past twelve

 

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(12) months, the Blade Group has not received notice of (i) material breach or material default under any Material Contract or (ii) the intention of any third party under any Material Contract to cancel, terminate or materially modify the terms of any such Material Contract or accelerate the obligations of the Blade Group thereunder in any material respect. Except as would not reasonably be expected to have a Blade Group Material Adverse Effect, either PubCo or IndiaCo is party to each Contract that is material to the business of the Blade Group.

(c) Transhermes and Blade India (on behalf and for the benefit of Transhermes), have collectively made a payment of approximately €389,001, in accordance with the provisions of the purchase order #125-2214 placed with Airbus Helicopters for the purchase of 5 H125 and 10 optional H125 helicopters, amounting to 15% (fifteen percent) of the purchase price payable to Airbus Helicopters thereunder.

Section 3.11 Blade Group Benefit Plans.

(a) (i) Each Blade Group Benefit Plan is subject to Laws outside the United States (each, a “Non-U.S. Benefit Plan”) and has been established, maintained, funded, operated and administered in accordance with its terms and applicable Laws in all material respects, and if intended to qualify for special tax treatment, meets all the requirements for such treatment; (ii) all employer and employee contributions to each Non-U.S. Benefit Plan required by its terms or by applicable Law have been made or, if applicable, accrued in accordance with generally accepted accounting practices in the applicable jurisdiction; (iii) each Non-U.S. Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities; and (iv) no claim or Proceeding is pending or, to the Blade Group’s knowledge, threatened on behalf of or relating to a Non-U.S. Benefit Plan (other than routine claims for benefits thereunder). No Non-U.S. Benefit Plan is a defined benefit plan (as defined in ERISA), whether or not subject to ERISA. There are no unfunded or underfunded Liabilities with a present value exceeding $30,000 (measured as of March 31, 2023) with respect to any Non-U.S. Benefit Plans.

(b) No Blade Group Benefit Plan is and no member of the Blade Group or any ERISA Affiliate sponsors, maintains, contributes to, has any obligation to contribute to, or otherwise has any Liability under or with respect to any: (i) “employee pension benefit plan” (as defined in Section 3(2) of ERISA) that is or was subject to Title IV of ERISA or Section 412 of the Code, (ii) Multiemployer Plan; (iii) “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code; (iv) “defined benefit plan” (as defined in Section 3(35) of ERISA, whether or not subject thereto) or (v) “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA. No Blade Group Benefit Plan is intended to be qualified under Section 401(a) of the Code. No member of the Blade Group has any Liability as a consequence of at any time being considered a single employer with any other Person under Section 414 of the Code.

(c) Neither the execution and delivery of this Agreement nor the consummation of the Transactions could result in (whether alone or in connection with any subsequent event) (i) the creation of any rights of any Person to payments or benefits or increases in any payments or benefits under any Blade Group Benefit Plan, (ii) the acceleration of the time of payment, funding or vesting, or forfeiture, of any compensation or benefits to any Person under any Blade Group Benefit Plan, or (iii) any “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).

 

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(d) No member of the Blade Group maintains any obligations to gross-up or reimburse any individual for any Tax or related interest or penalties incurred by such individual, including under Sections 409A or 4999 of the Code.

(e) No Blade Group Benefit Plan is a “nonqualified deferred compensation plan” subject to Section 409A of the Code. No amounts paid or payable by any member of the Blade Group are subject to any Tax or penalty imposed under Section 457A of the Code.

Section 3.12 Labor Matters.

(a) No member of the Blade Group is a party to or bound by any Labor Agreement, and none of the Blade Group’s employees are represented by any labor union, works council or labor organization. To the Blade Group’s knowledge, there are no, and since the Formation Date, there have not been any, pending or threatened activities or Proceedings by any labor union, works council, group of employees, or other labor organization to organize any of the Blade Group’s employees. Since the Formation Date, no labor union, works council, other labor organization, or group of employees of the Blade Group has made a demand for recognition or certification, and there are no representation or certification proceedings presently pending or, to the Blade Group’s knowledge, threatened to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. There are no, and since the Formation Date, there have been no pending or to the Blade Group’s knowledge, threatened unfair labor practice charges, employment related investigations, disputes, audits, material labor grievances, labor arbitrations, strikes, lockouts, slowdowns, picketing, handbilling, work stoppages or other material labor disputes against or affecting the Blade Group. With respect to the transactions contemplated by this Agreement, the Blade Group has satisfied in all material respects any notice, consultation or bargaining obligations owed to its employees or its employees’ representatives under applicable Law, Labor Agreement, or other Contract. Transhermes has not engaged and currently does not engage any employees, independent contractors and/or contract laborers.

(b) The Blade Group is, and since April 1, 2020 has been, in compliance in all material respects with all applicable Laws respecting employment, labor, and employment practices, including all such Laws relating to terms and conditions of employment, employment contracts, wages, hours, worker classification (including but not limited to exempt and non-exempt employees and of independent contractors), the provision and administration of meal and rest periods/breaks, immigration (including with respect to work authorization and the proper confirmation of employee visas), collective bargaining, discrimination, harassment, retaliation, whistleblowing, disability rights or benefits, equal opportunity, civil rights, employee trainings and notices, unemployment insurance, labor relations, background checks and screenings, privacy and biometric screening Laws, paid sick days and leave entitlements, compensation for work-made-for-hire and benefits (including any applicable Laws concerning COVID-19), family and medical leave and other leaves of absence, safety and health (including applicable Laws concerning COVID-19-related health and safety issues), plant closures and layoffs (including any Laws relating thereto that require employee notice prior to such closures or layoffs (“Employee Notice Layoff Laws”)) or any similar state, local or foreign Laws, affirmative action, employment-related Taxes, and workers’ compensation. There are no and, since April 1, 2020, there have been no pending or threatened activities or Proceedings by any Governmental Authority involving Blade Group’s material non-compliance with applicable Laws relating to employment, labor and employment practices.

 

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(c) Except as would not be expected to be, individually or in the aggregate, material to the Blade Group, since the Formation Date, (i) each member of the Blade Group has fully and timely paid all wages (including overtime wages, salaries, wage premiums, commissions, bonuses, severance and termination payments, fees, and other compensation) and other statutory payments and contributions that have come due and payable to their current or former employees and independent contractors under applicable Law, Contract or company policy, and (ii) each individual who is providing or has provided services to the Blade Group and is or was classified as an (A) exempt employee or (B) independent contractor, consultant, leased employee, or other non-employee service provider is and has been properly classified and treated as such for all applicable purposes.

(d) Since the Formation Date, the Blade Group has promptly, thoroughly and impartially investigated all employment discrimination, retaliation, policy violation, and sexual harassment allegations of which any member of the Blade Group is or was aware. The Blade Group has taken prompt corrective action that is reasonably calculated to prevent further improper action with respect to each such allegation with potential merit. No member of the Blade Group has incurred, or reasonably expects to incur, any material Liability arising from any such allegations and no member of the Blade Group is aware of any allegations relating to officers, directors, employees, contractors, or agents of the Blade Group, that, if known to the public, would bring the Blade Group into material disrepute.

(e) To the Blade Group’s knowledge, no current or former employee or independent contractor of the Blade Group is in any material respect in violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, noncompetition agreement, nonsolicitation agreement, restrictive covenant or other obligation: (i) owed to the Blade Group; or (ii) owed to any third party with respect to such person’s right to be employed or engaged by the Blade Group.

(f) To the Blade Group’s knowledge, no current employee of the Blade Group with annualized compensation at or above $100,000, intends to terminate his or her employment prior to the one (1) year anniversary of the Closing.

Section 3.13 Taxes.

(a) All material Tax Returns required by Law to be filed by the Blade Group have been timely filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns are true, correct and complete in all material respects.

(b) All material amounts of Taxes due and owing by the Blade Group have been paid, other than Taxes which are not yet due and payable or are being contested in good faith by appropriate Proceedings and for which reserves have been established in accordance with GAAP or Indian Accounting Standards, as applicable. Except as set forth on Section 3.13(b) of the Blade Group Disclosure Schedules, no tax liability shall arise in India in connection with the Pre-Closing Reorganization or the Hunch Reorganization.

 

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(c) Each member of the Blade Group has (i) withheld all material amounts of Taxes required to have been withheld by it in connection with amounts paid or owed to any employee, independent contractor, creditor, shareholder or any other third party, (ii) remitted, or will remit on a timely basis, such amounts to the appropriate Governmental Authority and (iii) complied in all material respects with applicable Law with respect to Tax withholding, including all reporting and record keeping requirements.

(d) No written claim has been made by any Governmental Authority in a jurisdiction where either the Blade Group does not file Tax Returns of a particular type that the Blade Group is or may be subject to taxation of such type by, or required to file Tax Returns of such type in, such jurisdiction which claim has not been withdrawn or otherwise resolved.

(e) No member of the Blade Group is a party to, or bound by, any Tax allocation, Tax sharing, Tax indemnification or similar agreement that will remain in effect after the Closing Date (other than (i) any agreement solely among members of the Blade Group or (ii) customary provisions in agreements entered into in the ordinary course of business the primary purpose of which does not relate to Taxes).

(f) No member of the Blade Group is engaged in any material audit, administrative Proceeding or judicial Proceeding with respect to a material amount of Taxes. No member of the Blade Group has received any written notice from a Governmental Authority of a dispute or claim with respect to a material amount of Taxes, other than disputes or claims that have since been resolved.

(g) There are no Liens with respect to material Taxes on any of the assets of the Blade Group, other than Permitted Liens.

(h) No member of the Blade Group has any material liability for the Taxes of any Person (other than the Blade Group) (i) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), (ii) as a transferee or successor or (iii) by Contract (except, in each case of clause (i), (ii) and (iii), for liabilities pursuant to commercial Contracts not primarily relating to Taxes) or customary financing arrangements.

(i) No member of the Blade Group has taken any action (or permitted any action to be taken) or failed to take any action, nor is the Blade Group aware of any fact, plan or circumstance, which action, failure to act, fact, plan or circumstance would reasonably be expected to prevent the Merger, together with the Note Conversion and the Pre-Closing Reorganization, from qualifying for the U.S. Intended Tax Treatment, in each case other than as contemplated by this Agreement or any other Transaction Document.

(j) PubCo is, and as of the Closing will be, tax resident in Ireland. For U.S. federal income Tax purposes, (i) PubCo is treated as an association taxable as a corporation, and (ii) Merger Sub, IndiaCo and Transhermes are, and have been since the date of formation, treated as a disregarded entity separate from PubCo. Neither the Blade Group nor the Principal Shareholders have any plan or intention to cause Surviving SPAC to engage in any transaction or

 

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make any election that reasonably would be expected to result in the liquidation of Surviving SPAC for U.S. federal income Tax purposes. To the knowledge of the Blade Group, none of the Principal Shareholders have entered into, or has any current plan or intention to enter into, any contract, agreement, commitment or arrangement to dispose of any PubCo Ordinary Shares received pursuant to Section 2.01(a). Save for any amount required by applicable Law to be deducted and withheld from any interest payable pursuant to the Note Conversion (including any payment satisfied by the issuance of PubCo Ordinary Shares), no member of the Blade Group will be liable after the Closing for any material Taxes imposed on the Blade Group as result of the Hunch Reorganization, Pre-Closing Reorganization or Note Conversion.

(k) Blade India and/or qualified Subsidiaries of Blade India have been engaged in an active trade or business outside of the United States for the entire 36-month period immediately before the Closing Date, and neither the Blade Group nor the Principal Shareholders have any intention to substantially dispose of or discontinue such trade or business (all within the meaning of Treasury Regulation Section 1.367(a)-3(c)(3)(i)).

(l) None of the Blade Group will be required to pay any Tax after the Closing Date as a result of (i) the delay of payment of employment Taxes under any COVID-19 Measure or any similar notice or order or law, or (ii) the advance refunding or receipt of credits under any COVID-19 Measure.

Section 3.14 Insurance.

(a) Section 3.14 of the Blade Group Disclosure Schedules sets forth a true, correct and complete list, as of the date of this Agreement, of all material policies or programs of fire, liability, workers’ compensation, property, cyber, casualty and other forms of insurance owned or held by the Blade Group. True, correct and complete copies or summaries of such insurance policies have been made available to DSAQ. With respect to each such insurance policy required to be listed on Section 3.14 of the Blade Group Disclosure Schedules, except as would not reasonably be expected to be, individually or in the aggregate, material to the Blade Group, all such insurance policies as of the date of this Agreement are (i) legal, valid, binding, in full force and effect and are enforceable in accordance with its terms, and the consummation of the Transactions will not cause a cancellation or reduction in the coverage of such policies (ii) all premiums due and payable thereon as of the date of this Agreement have been paid in full as of the date of this Agreement, (iii) no member of the Blade Group is in material breach or default (including any such breach or default with respect to the payment of premiums or the giving of notice), and, to the Blade Group’s knowledge, no event has occurred which, with notice or the lapse of time or both, would constitute such a material breach or default, or permit termination or modification, under the policy, and to the Blade Group’s knowledge, no such action has been threatened, (iv) to the Blade Group’s knowledge, no written notice of cancellation, termination, non-renewal, disallowance or reduction in coverage has been received other than in connection with ordinary renewals, and (v) as of the date of this Agreement, no claims have been made by any member of the Blade Group under any of such policies.

(b) Except as would not be, individually or in the aggregate, material to the Blade Group, all insurable risks in respect of the business of the Blade Group are covered by the policies listed on Section 3.14 of the Blade Group Disclosure Schedules and the types and amounts of coverage provided therein are sufficient so as to comply with the requirement of any Material Contract to which any member of the Blade Group is a party.

 

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Section 3.15 Permits. Each member of the Blade Group holds all Permits that are required to own, lease or operate its properties and assets and to conduct its business as currently conducted, except any such Permits that if not held by the Blade Group would not have a Blade Group Material Adverse Effect (the “Material Permits”). Except as would not reasonably be expected to be, individually or in the aggregate, material to the Blade Group, (a) each Material Permit is in full force and effect in accordance with its terms, (b) no unresolved written notice of any violation, revocation, cancellation or termination of any Material Permit has been received by the Blade Group, (c) to the Blade Group’s knowledge, none of the Material Permits upon their expiration in the ordinary course of business will not be renewed upon terms and conditions substantially similar to such Material Permit’s existing terms and conditions, (d) there are no pending or, to the Blade Group’s knowledge, threatened, Proceedings that seek the revocation, cancellation, limitation, restriction or termination of any Material Permit and (e) each member of the Blade Group is, and since the Formation Date has been, in compliance with the terms of all the Material Permits, except where such suspension, Proceeding or cancellation would not reasonably be expected to have a Blade Group Material Adverse Effect.

Section 3.16 Property.

(a) Section 3.16(a) of the Blade Group Disclosure Schedules lists, as of the date of this Agreement, the address of each Owned Real Property. The Blade Group has good and marketable indefeasible fee simple title to the Owned Real Property, free and clear of all Liens except Permitted Liens. No member of the Blade Group has leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof. 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. No member of the Blade Group is a party to any agreement or option to purchase or sell any real property or interest therein.

(b) Section 3.16(b)(i) of the Blade Group Disclosure Schedules lists, as of the date of this Agreement, the address of each Leased Real Property (other than temporary construction site offices relating to individual projects). The Blade Group has made available to DSAQ true, correct and complete copies of the Contracts (including all modifications, amendments, restatements, amendments and restatements, guarantees, supplements, waivers, extensions, renewals, side letters and other agreements with respect thereto) pursuant to which members of the Blade Group use or occupy (or have been granted an option to use or occupy) or have rights with respect to the Leased Real Property or are otherwise a party with respect to the Leased Real Property (collectively, the “Leases”), and in the case of any oral Lease, a written summary of the material terms of such Lease. Section 3.16(b)(ii) of the Blade Group Disclosure Schedules sets forth a true, correct, and complete list of all Leases, including, without limitation, all amendments, guaranties, rent deferments (due to the COVID-19 pandemic or otherwise), and other modifications and agreements thereto. Except as set forth on Section 3.16(b)(iii) of the Blade Group Disclosure Schedules, (1) each Lease is in full force and effect and is a valid, legal and binding obligation of the member of the Blade Group, enforceable in accordance with its terms against such member of the Blade Group (as applicable), and to the knowledge of the Blade Group, each other party thereto, subject, in each case, to the Enforceability Exceptions, (2) the Blade

 

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Group has a valid and subsisting leasehold estate in, and enjoys peaceful and materially undisturbed possession of, all Leased Real Property, subject only to Permitted Liens, (3) the other party to such Lease is not an affiliate of, and otherwise does not have any economic interest in, any member of the Blade Group, and (4) no party to a Lease has claimed a force majeure (or similar excuse in performance due to COVID-19) with respect thereto. To the knowledge of Blade Group, neither the Blade Group nor any other party under any Lease is in breach or default under any Lease and no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute a breach or default under any Lease by the Blade Group, or permit an acceleration of rent under, or termination or modification of, such Lease. No member of the Blade Group has subleased, licensed, or otherwise granted to any Person the right to use or occupy any Leased Real Property or any portion thereof. No member of the Blade Group has collaterally assigned or granted any other security interest in such Lease or any interest therein. Except, in each case, as would not reasonably be expected to be, individually or in the aggregate, material to the Blade Group, within the past twelve (12) months, the Blade Group has not received notice of (i) material breach or material default under any Lease, or (ii) the intention of any third party under any Lease to cancel, terminate or materially modify the terms of any such Lease or accelerate the obligations of the Blade Group thereunder in any material respect. All Leases to which Blade Group is a party have been entered into in the ordinary course of business.

(c) To the Blade Group’s knowledge, (i) the Volupia Lease Deed is in full force and effect; and (ii) Volupia is not in breach or default under the Volupia Lease Deed and no event has occurred or circumstances exist which, with the delivery of notice, the passage of time or both, would constitute a breach or default under the Volupia Lease Deed, or permit an acceleration of rent under, or termination or modification of, the Transhermes Lease Deed.

(d) The Owned Real Property and the Leased Real Property (collectively, the “Real Property”) comprise all of the real property used or intended to be used in, or otherwise related to, the business of the Blade Group (other than Blade India and its Subsidiaries).

(e) Except as would not reasonably be expected to be, individually or in the aggregate, material to the Blade Group, the tangible assets and properties of the Blade Group are in good operating condition in all respects (normal wear and tear excepted) and are fit, in all respects, for use in the ordinary course of business, and no uninsurable damage has, since the Most Recent Balance Sheet, occurred with respect to such assets and properties. Except as would not reasonably be expected to be, individually or in the aggregate, material to the Blade Group, immediately after the Effective Time, the assets (which, for the avoidance of doubt, shall include Contracts, the Leases, and any assets held pursuant to valid leasehold interest, license or other similar interests or right to use any assets) of the Blade Group (other than Blade India and its Subsidiaries) will constitute all of the assets necessary to conduct the business of the Blade Group immediately after the Closing in all respects as it is conducted on the date of this Agreement. Except as would not reasonably be expected to be, individually or in the aggregate, material to the Blade Group, the Blade Group (other than Blade India and its Subsidiaries) owns, leases, licenses or has the legal right to use or otherwise hold good, valid and enforceable title to all of the properties and assets, tangible or intangible, of the Blade Group, as reflected on the Financial Statements (collectively, the “Blade Group Assets”), except for immaterial Blade Group Assets that have been sold or otherwise disposed of in the ordinary course of business.

 

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Section 3.17 Intellectual Property; IT Security; Data Privacy.

(a) Section 3.17(a) of the Blade Group Disclosure Schedules includes a complete and accurate list (along with the name of the applicable member of the Blade Group, against each listed Intellectual Property, owning or purporting to own the same) of any patent, patent application, trademark registration, trademark application, service mark registration, service mark application, copyright registration, application for copyright registration, and Internet domain name owned or purported to be owned by the Blade Group (the Intellectual Property listed or required to be listed on Section 3.17(a) of the Blade Group Disclosure Schedules, collectively, the “Registered Intellectual Property”). All Registered Intellectual Property is subsisting and, to the Blade Group’s knowledge, valid and enforceable. Any renewal, maintenance and other necessary filings and fees due and payable to any relevant Governmental Authority or Internet domain name registrar to maintain all Registered Intellectual Property in full force and effect have been timely submitted or paid in full.

(b) The Blade Group (i) solely and exclusively owns all rights, title and interest in and to all Owned IP, and (ii) has valid and enforceable rights to use, pursuant to a written license, sublicense, agreement or permission, all Licensed IP, in each case of (i) and (ii) (to the knowledge of Blade Group), free and clear of all Liens (other than Permitted Liens). To the Blade Group’s knowledge, the Owned IP and Licensed IP collectively constitute all Intellectual Property used in or necessary for the conduct and operation of the business of the Blade Group, as presently conducted; provided, however, that the foregoing is not a representation of non-infringement of Intellectual Property.

(c) To the knowledge of the Blade Group, none of the members of the Blade Group, or the conduct of the business of the Blade Group (i) is currently infringing upon, misappropriating, diluting or otherwise violating any Intellectual Property rights of any Person or (ii) has, in the past six (6) years, infringed upon, misappropriated, diluted or otherwise violated any Intellectual Property rights of any Person. Since the applicable member of the Blade Group’s respective Formation Date, no such member of the Blade Group has received any written communication (including cease and desist letters), and no action has been instituted, settled or, to the Blade Group’s knowledge, been threatened against the Blade Group that (1) alleges any such infringement, violation, dilution or misappropriation, (2) invites the Blade Group to take a license under any Intellectual Property of any Person in a manner that could reasonably be construed as a notice of infringement or (3) challenges the ownership, use, validity or enforceability of any Owned IP. To the Blade Group’s knowledge, no Person is infringing upon, misappropriating, diluting or otherwise violating any Owned IP or any Licensed IP exclusively licensed to the Blade Group, nor to the Blade Group’s knowledge, has any Person, since the applicable member of the Blade Group’s respective Formation Date, infringed upon, misappropriated, diluted or otherwise violated any Owned IP or any material Licensed IP exclusively licensed to the Blade Group. No such claims have been made in writing against any Person by any member of the Blade Group since the applicable member of the Blade Group’s respective Formation Date.

(d) To its knowledge, the Blade Group has complied with its obligations with regard to Licensed IP and has taken reasonable steps to maintain and protect all of the confidential information used in connection with the business of the Blade Group, including of any Person to whom the Blade Group has a confidentiality obligation with respect to such trade secrets or

 

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confidential information (in each case, including the value and confidentiality thereof). To the knowledge of the Blade Group, no trade secret or confidential information that is material to the business of the Blade Group has been authorized by the Blade Group to be disclosed (or, to the Blade Group’s actual knowledge, has been disclosed) to any Person other than (i) pursuant to a written agreement adequately restricting the disclosure and use of such trade secret or confidential information or (ii) to a Person who otherwise has a duty to protect such trade secret or confidential information. To the Blade Group’s actual knowledge, without having conducted any investigation no current or former employee, consultant or contractor of the Blade Group has been or is in breach of any such agreement.

(e) No funding, facilities or personnel of any Governmental Authority or any university, college, research institute or other educational institution has been or is being used to create, in whole or in part, any Owned IP or, to the Blade Group’s knowledge, any Licensed IP.

(f) The Blade Group owns or has a valid right to access and use pursuant to a written agreement all IT Systems in the manner in which they are currently accessed or used in the conduct of the businesses of the Blade Group. The IT Systems (i) are to the knowledge of the Blade Group adequate for and sufficient in all material respects for the operation of the businesses of the Blade Group as currently conducted and (ii) to the Blade Group’s actual knowledge, do not contain any viruses, worms, Trojan horses, bugs, faults or other devices, errors, Contaminants or effects that (A) materially and adversely disrupt the functionality of any IT Systems, except as disclosed in their documentation or (B) enable or assist any Person to access without authorization any IT Systems. To the knowledge of the Blade Group, any licensors or third parties who Process any Personal Information on behalf of the Blade Group, have taken commercially reasonable steps to maintain and safeguard the performance, confidentiality, security and internal and external integrity of the IT Systems, all Personal Information Processed by or for the Blade Group, and the information (including Personal Information) that are Processed by the IT Systems. Since the Formation Date, to the knowledge of the Blade Group, there has not been any failure, breakdown, continued substandard performance, data loss, outage, unscheduled downtime or other adverse event affecting any IT Systems (including, to the Blade Group’s knowledge, any security breach or unauthorized access to any IT Systems) that have been or could reasonably be expected to be material to the conduct and operation of the business of the Blade Group, and there has not been any material disruption to any IT System. The Blade Group has implemented reasonable back-up and disaster recovery arrangements in the event of a failure of the IT Systems.

(g) Neither the execution and delivery of this Agreement or any of the other Transaction Documents nor the consummation of the transactions contemplated hereby or thereby (either alone or in combination with any other event) will result in (i) the loss or impairment of, or any Lien on, any Owned IP or Licensed IP, (ii) the grant, assignment or transfer to any Person of any license or other right or interest under, to or in any Owned IP or Licensed IP, (iii) the payment of any additional consideration to, or the reduction of any payments from, any Person with respect to any Owned IP or Licensed IP or (iv) the breach of, or creation on behalf of any Person of the right to terminate or modify, any Contract relating to any Owned IP or Licensed IP.

 

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(h) The Blade Group and, to the Blade Group’s knowledge, any Person acting for or on behalf of the Blade Group is, and has since April 1, 2020, been, in compliance in all material respects with all Data Security Requirements. Each member of the Blade Group has implemented and maintained reasonable and appropriate policies, procedures and systems for receiving and appropriately responding to requests from individuals concerning their Personal Information. None of the public-facing privacy policies or notices of the Blade Group has contained any material omissions or been misleading or deceptive. Since the Formation Date, no member of the Blade Group has received any written notice of any claims (including notice from third parties acting on its behalf) of or investigations or regulatory inquiries related to, or been charged with, the violation by the Blade Group of any Data Security Requirements.

(i) Each member of the Blade Group has (i) implemented and, since the Formation Date, maintained reasonable and appropriate technical, physical and organizational safeguards to protect all Personal Information and other confidential data in its possession or under its control against loss, theft, misuse or unauthorized access, use, modification, alteration, destruction, transfer or disclosure, and (ii) since April 1, 2020, taken reasonable steps to ensure that all third parties who process any Personal Information for or on behalf of the Blade Group have taken reasonable steps to maintain the privacy and confidentiality of Personal Information and to protect and secure Personal Information from loss, theft, misuse or unauthorized access, use, modification, alteration, destruction or disclosure. To the knowledge of the Blade Group, any third party who has provided any Personal Information to the Blade Group has done so in material compliance with applicable Privacy Laws, including providing any notice and obtaining any consent required.

(j) Since April 1, 2020, to the knowledge to the Blade Group there have been no breaches, security incidents, misuse of or unauthorized or unlawful Processing of any (i) IT System or (ii) Personal Information in the possession or control of, or collected, used or Processed by or on behalf of, the Blade Group, and, the Blade Group has not provided or been required to provide any notices to any Person in connection with any unlawful or unauthorized Processing of any Personal Information. Neither the Blade Group nor, to the Blade Group’s knowledge, any third party acting at the direction or authorization of any member of the Blade Group, has paid any sum of money or other consideration to (i) any perpetrator of any data breach incident or cyber-attack or (ii) any third party with actual or alleged information about any data breach incident or cyber-attack, in each case, with respect to such incident or cyber-attack.

Section 3.18 Environmental Matters.

(a) The Blade Group is, and since the Formation Date has been, in compliance with all Environmental Laws applicable to it, which compliance includes obtaining, maintaining and complying with all Material Permits that are required under applicable Environmental Laws to own, lease or operate its properties and assets, to conduct its business and to construct any buildings on the Owned Real Property, except for any non-compliance (including any failure to obtain, maintain and comply with Material Permits) that would not reasonably be expected to have, individually or in the aggregate, a Blade Group Material Adverse Effect.

(b) No member of the Blade Group has received any unresolved written notice of any violations of, or liabilities arising under, Environmental Laws, or alleging liability from exposure to Hazardous Materials, except for such notices that would not reasonably be expected to have, individually or in the aggregate, a Blade Group Material Adverse Effect.

 

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(c) No member of the Blade Group has caused or arranged for the release, spill, disposal or discharge of any Hazardous Materials at concentrations in excess of those permitted under any Environmental Laws, except for such release, spill, disposal or discharge that would not reasonably be expected to have, individually or in the aggregate, a Blade Group Material Adverse Effect.

(d) No member of the Blade Group has been issued any unresolved Governmental Order arising under Environmental Laws or relating to Hazardous Materials, nor, to the Blade Group’s knowledge, are they subject to any pending investigations relating to or in connection with any violation or alleged violation of Environmental Laws, except for any Governmental Order or investigation that would not reasonably be expected to have, individually or in the aggregate, a Blade Group Material Adverse Effect.

Section 3.19 Absence of Changes. (a) Since December 31, 2022 and through the date of this Agreement, no Blade Group Material Adverse Effect has occurred and (b) since December 31, 2022 and through the date of this Agreement, except as expressly contemplated by this Agreement, any other Transaction Document or in connection with the Transactions, the Blade Group has (i) conducted their respective businesses in the ordinary course in all material respects, other than due to any actions taken due to any COVID-19 Measure and (ii) not taken any action that would require the consent of DSAQ pursuant to Section 5.01(b), if such action had been taken after the date hereof, other than, in each case, any action required to be taken pursuant to any Transaction Document.

Section 3.20 Transactions with Affiliates. Except for the Contracts set forth on Section 3.20 of the Blade Group Disclosure Schedules, there are no Contracts between (a) any member of the Blade Group, on the one hand, and any (b) Blade Group Related Party, other than (i) Contracts with respect to a Blade Group Related Party’s employment with (including Blade Group Benefit Plans and other ordinary course compensation from) the Blade Group entered into in the ordinary course of business, or (ii) Contracts entered into after the date of this Agreement that are either permitted pursuant to Section 5.01(b) or entered into in accordance with Section 5.01(b) (all such Contracts, arrangements, understandings, interests and other matters that are required to be disclosed pursuant to this Section 3.20 are referred to herein as “Blade Group Related Party Contracts”). All Blade Group Related Party Contracts set forth in Section 5.09 of the Blade Group Disclosure Schedules have been entered in the ordinary course of business, on an arm’s length basis and in accordance with the applicable Laws.

Section 3.21 Brokers. Other than Cohen & Company Capital Markets, no broker, finder, financial advisor, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions based upon arrangements made by or on behalf of the Blade Group or any of its Affiliates for which the Blade Group has any obligation.

Section 3.22 Business Activities. Merger Sub was organized solely for the purpose of entering into this Agreement, the other Transaction Documents and consummating the Transactions and has not engaged in any activities or business, and has no assets or liabilities other than those incident or related to or incurred in connection with its organization or formation, as applicable, or the negotiation, preparation or execution of this Agreement or any other Transaction Document, the performance of its covenants or agreements in this Agreement or any other Transaction Document or the consummation of the Transactions. Prior to the Hunch Reorganization, IndiaCo did not engage in any activities or business, nor had any assets or liabilities, other than those incident to or related to or incurred in connection with its organization or formation, as applicable.

 

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Section 3.23 Investment Company Act. PubCo is not an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of a Person subject to registration and regulation as an “investment company,” in each case, within the meaning of the Investment Company Act of 1940.

Section 3.24 Information Supplied. None of the information supplied by, or on behalf of, the Blade Group expressly for inclusion or incorporation by reference prior to the Closing in the Registration Statement/Proxy Statement or any other documents submitted or to be submitted to any other Governmental Authority or any announcement or public statement regarding the transactions contemplated hereby (including, without limitation, the Signing Press Release), at (a) the time such information is filed, submitted or made publicly available (provided, if such information is revised by any subsequently filed amendment or supplement to the Registration Statement/Proxy Statement prior to the time the Registration Statement/Proxy Statement is declared effective by the SEC, this clause (a) shall solely refer to the time of such subsequent revision or supplement); (b) the time the Registration Statement/Proxy Statement is declared effective by the SEC; (c) the time the Registration Statement/Proxy Statement is first mailed to Pre-Closing DSAQ Holders; (d) the time of the Special Meeting; (e) the time of the DSAQ Warrantholder Meeting; or (f) the Closing, 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; provided, however, that the Blade Group makes no representations or warranties as to the information contained in or omitted from the Registration Statement/Proxy Statement in reliance upon and in conformity with information furnished in writing to the Blade Group by or on behalf of DSAQ specifically for inclusion in the Registration Statement/Proxy Statement. All financial projections with respect to the Blade Group that were prepared and delivered by the Blade Group to DSAQ were prepared in good faith using management’s reasonable best estimates (it being understood that forecasts and other forward-looking information are not to be viewed as facts or a guarantee of performance and are subject to uncertainties and contingencies, many of which are beyond the control of the Blade Group, and that no assurance can be given that such forecasts or other forward-looking information will be realized and that actual results may differ from the projected results).

Section 3.25 Hunch Reorganization. Prior to the date hereof, the Blade Group has consummated a reorganization, in accordance with the following steps and transactions (such steps and transactions, the “Hunch Reorganization”):

(a) PubCo adopted a new constitution creating (1) PubCo Class A Ordinary Shares with a nominal value of $0.0001 each; and (2) PubCo Class B Ordinary Shares with a nominal value of $0.0001 each. The Principal Shareholders acquired PubCo, which involved (i) Hunch subscribing for 23,146,230 PubCo Class A Ordinary Shares at a total subscription price of $348,000 and 15,430,820 PubCo Class B Ordinary Shares at a total subscription price of $232,000 and (ii) Blade US subscribing for 1,551,743 PubCo Class A Ordinary Shares at a total subscription price of $23,318.82 and 1,034,495 PubCo Class B Ordinary Shares at a total subscription price of $15,545.88.

 

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(b) PubCo re-designated the 100 Ordinary Shares with a nominal value of €1.00 each in issue held by the Nominee Shareholder to Deferred Shares with a nominal value of €1.00 each. Following the re-designation, the Nominee Shareholder surrendered the 100 Deferred Shares in issue to PubCo for nil consideration and PubCo subsequently cancelled the 100 Deferred Shares by way of a deed of surrender and cancellation. Following the surrender and cancellation of the Deferred Shares, PubCo’s share capital is made up of PubCo Class A Ordinary Shares and PubCo Class B Ordinary Shares which are held by the Principal Shareholders.

(c) PubCo acquired IndiaCo and contributed the IndiaCo Consideration to IndiaCo;

(d) IndiaCo filed IRS form 8832 electing to be classified as a disregarded entity for US tax purposes, effective as of the date of issuance by IndiaCo to PubCo of all of the Equity Securities of IndiaCo;

(e) PubCo formed Merger Sub;

(f) Blade India transferred its business undertakings, including all of its assets and liabilities other than (i) the capital stock of Transhermes, which will be transferred subject to governmental approval for such transfer and (ii) certain excluded assets and excluded liabilities (as specified in the Business Transfer Agreement), to IndiaCo in exchange for an amount equal to the Slump Sale Consideration (the “Slump Sale”);

(g) Blade India filed IRS form 8832 electing to be classified as a partnership entity for US tax purposes, effective as of or prior to the date of the Slump Sale;

(h) Blade India passed board resolutions for its voluntary winding-up under applicable Indian Laws; and

(i) Blade US and IndiaCo executed an amendment agreement to amend the terms of the IP License Agreement in the form that has been presented to DSAQ.

The definitive documentation executed in respect of the Hunch Reorganization has been made available to DSAQ. The Hunch Reorganization has been carried out in accordance with applicable Law. The representations and warranties of the Blade Group expressly set forth in the definitive documentation with respect to the Hunch Reorganization are true and correct in all material respects as of the date on which such representations and warranties were made under the relevant definitive documentation.

 

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ARTICLE IV

REPRESENTATIONS AND WARRANTIES RELATING TO DSAQ

Except as set forth in (a) the DSAQ Disclosure Schedules (but subject to the terms of Section 10.08) or (b) DSAQ SEC Reports filed with the SEC on or prior to the date of this Agreement (excluding any disclosures in any DSAQ SEC Reports under the headlines “Risk Factors,” “Forward-Looking Statements” or “Qualitative Disclosures About Market Risk” and other disclosures that do not constitute statements of fact or that are generally cautionary, predictive or forward-looking in nature), DSAQ hereby represents and warrants to the Blade Group as follows:

Section 4.01 Corporate Organization. DSAQ is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware. The copies of DSAQ’s Governing Documents as in effect on the date of this Agreement previously made available by DSAQ to PubCo are true, correct and complete, are in full force and effect and have not been amended. DSAQ has the requisite corporate or other entity power and authority to own, operate and lease its properties, rights and assets and to conduct its business as presently conducted, except where the failure to have such power or authority would not reasonably be expected to be, individually or in the aggregate, material to DSAQ. DSAQ is duly licensed or qualified in each jurisdiction in which its ownership of property or the character of its activities is such as to require it to be so licensed or qualified, except where the failure to be so licensed or qualified would not reasonably be expected to be, individually or in the aggregate, material to DSAQ.

Section 4.02 Due Authorization.

(a) DSAQ has the requisite corporate power and authority to execute and deliver this Agreement and each other Transaction Document to which DSAQ is or will be a party and (subject to the approvals described in Section 4.03), upon receipt of the Required DSAQ Stockholder Approval, to perform its obligations hereunder and thereunder and to consummate the Transactions. Subject to obtaining the Required DSAQ Stockholder Approval at the Special Meeting and the approval of the DSAQ Warrant Amendment Proposal at the DSAQ Warrantholder Meeting, the execution and delivery of this Agreement, the other Transaction Documents to which DSAQ is or will be a party and the consummation of the Transactions, and the DSAQ Warrant Amendment have been (or, in the case of any other Transaction Document entered into after the date of this Agreement, will be upon execution thereof)duly authorized by all necessary corporate action on the part of DSAQ. This Agreement has been, and each other Transaction Document to which DSAQ is or will be a party upon execution thereof, duly and validly executed and delivered by DSAQ and constitutes or shall constitute, upon execution thereof, as applicable, assuming due power and authority of, and due execution and delivery by, the Principal Shareholders, the Blade Group and each other party hereto and thereto, a valid, legal and binding agreement of DSAQ (assuming this Agreement has been and the other Transaction Documents to which DSAQ is or will be a party are or will be upon execution thereof, as applicable, duly authorized, executed and delivered by the other Persons party hereto or thereto, as applicable), enforceable against DSAQ in accordance with their terms, subject to the Enforceability Exceptions.

Section 4.03 Consents and Requisite Government Approvals; No Violations.

(a) No action by, notice, consent, approval, waiver or authorization of, or designation, declaration or filing with, any Governmental Authority is required on the part of DSAQ with respect to DSAQ’s execution, delivery or performance of its obligations under this Agreement or the other Transaction Documents to which it is or will be party or the consummation of the Transactions, except for (i) compliance with and filings under the HSR Act, (ii) the filing

 

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with the SEC of (A) the Registration Statement/Proxy Statement and the declaration of the effectiveness thereof by the SEC and (B) such reports under Section 13(a) or 15(d) of the Exchange Act as may be required in connection with this Agreement, the other Transaction Documents or the Transactions, (iii) such filings with and approvals of the applicable Stock Exchange to permit PubCo Class A Ordinary Shares or, if applicable, PubCo Warrants to be issued in accordance with this Agreement to be listed on such Stock Exchange, (iv) the filing of the Certificate of Merger with the Secretary of State of Delaware in accordance with the DGCL and the DLLCA or (v) any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Transactions.

(b) Subject to the receipt of the Required DSAQ Stockholder Approval, neither the execution, delivery or performance by DSAQ of this Agreement nor the other Transaction Documents to which DSAQ is or will be a party nor the consummation by DSAQ of the Transactions shall (i) result in any breach of any provision of DSAQ’s Governing Documents, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of any Contract to which DSAQ is a party or by which DSAQ or any of its properties or assets are bound, (iii) assuming compliance with the matters referred to in Section 4.03(a), violate, or constitute a breach under, any Governmental Order or Law applicable to DSAQ or (iv) result in the creation of any Lien upon any of the assets or properties of DSAQ (other than any Permitted Liens) of DSAQ, except in the case of clauses (ii) and (iv) above, as would not reasonably be expected to (A) be, individually or in the aggregate, material to DSAQ or (B) prevent, materially delay or materially impair the consummation of the Transactions.

(c) To the knowledge of DSAQ, no prior approval is required to be procured on account of the existing holders of DSAQ Shares from the relevant Governmental Authority pursuant to Press Note 3 of 2020 dated April 17, 2020 issued by the Department for Promotion of Industry and Internal Trade read with Rule 6(a) of the Foreign Exchange Management (Non-debt Instruments) Rules, 2019 (“Press Note 3”), in order for DSAQ to consummate the Closing in accordance with the terms of this Agreement.

Section 4.04 Capitalization.

(a) The authorized capital stock of DSAQ consists of: (i) 1,000,000 shares of DSAQ preferred stock, par value $0.0001 per share, of which no shares are issued and outstanding as of the date of this Agreement; (ii) 400,000,000 shares of common stock, consisting of 380,000,000 DSAQ Class A Shares and 20,000,000 DSAQ Class B Shares, of which (A) 5,595,494 DSAQ Class A Shares are issued and outstanding as of the date of this Agreement and 5,750,000 DSAQ Class B Shares are issued and outstanding as of the date of this Agreement and (B) 23,200,000 DSAQ Warrants are issued and outstanding as of the date of this Agreement. All outstanding Equity Securities of DSAQ have been duly authorized and validly issued. Such Equity Securities (i) were issued in compliance in all material respects with applicable Law, (ii) were not issued in violation of the Governing Documents of DSAQ and (iii) were not issued in breach or violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any applicable Law, DSAQ’s Governing Documents or any Contract to which DSAQ is a party or is otherwise bound. Except (I) for this Agreement, (II) the

 

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other Transaction Documents and the Transactions, (III) as set forth in DSAQ’s Governing Documents and (IV) the DSAQ Warrants, there are no outstanding (x) equity appreciation, phantom equity, profit participation rights or (y) options, restricted stock, restricted stock units, performance stock units, phantom stock/share, warrants, purchase rights, subscription rights, conversion rights, exchange rights, calls, puts, rights of first refusal or first offer or other Contracts to which DSAQ is a party or by which DSAQ is bound obligating DSAQ to issue, deliver, sell, or cause to be issued, delivered or sold, any shares of capital stock of, other equity interests in or debt securities of, DSAQ.

(b) DSAQ has no Subsidiaries and does not own, directly or indirectly, any Equity Securities in any Person.

(c) As of date of this Agreement, DSAQ has entered into the Antara Subscription Agreement with Antara, pursuant to which, and on the terms and subject to the conditions of which, Antara has agreed, in connection with the Transactions, to purchase DSAQ Preferred Shares for an aggregate investment amount of $7,000,000. As of the date of this Agreement, the Antara Subscription Agreement is in full force and effect with respect to, and binding on, DSAQ and, to DSAQ’s knowledge, on each other party thereto, in accordance with its terms.

Section 4.05 Trust Account. As of the date of the Agreement, DSAQ has an amount in cash equal to at least $62,606,718.49 in a trust account (the “Trust Account”) for the benefit of DSAQ’s public stockholders, maintained by Continental Stock Transfer & Trust Company, a New York limited purpose trust company, acting as trustee (the “Trustee”), pursuant to the Investment Management Trust Agreement, dated September 23, 2021, between DSAQ and the Trustee (the “Trust Agreement”). The Trust Agreement is in full force and effect and is a legal, valid and binding obligation of DSAQ and, to the knowledge of DSAQ, the Trustee, enforceable in accordance with its terms, subject to Enforceability Exceptions. The Trust Agreement has not been terminated, repudiated, rescinded, amended or supplemented or modified, in any respect, and, to the knowledge of DSAQ, no such termination, repudiation, rescission, amendment, supplement or modification is contemplated. There are no side letters or other Contracts or understandings, (whether written or oral) that would (a) cause the description of the Trust Agreement in the DSAQ SEC Reports to be inaccurate in any material respect, (b) cause the DSAQ SEC Reports to be inaccurate in any material respect or (c) to DSAQ’s knowledge, entitle any Person to any portion of the funds in the Trust Account (other than (i) in respect of deferred underwriting commissions or Taxes, (ii) the Pre-Closing DSAQ Holders who shall have elected to redeem their DSAQ Class A Shares pursuant to the Governing Documents of DSAQ (including any excise Taxes payable in connection therewith) in connection with the Special Meeting or (iii) if DSAQ fails to complete a business combination within the allotted time period set forth in the Governing Documents of DSAQ and liquidates the Trust Account, subject to the terms of the Trust Agreement, DSAQ (in limited amounts to permit DSAQ to pay the expenses of the Trust Account’s liquidation, dissolution and winding up of DSAQ) and then the Pre-Closing DSAQ Holders). Prior to the Closing, none of the funds held in the Trust Account may be released except in the circumstances described in the Governing Documents of DSAQ and the Trust Agreement, DSAQ’s Governing Documents and DSAQ’s final prospectus dated September 23, 2021. Amounts in the Trust Account are invested in United States Government securities or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act of 1940 or in cash. DSAQ has performed all material obligations required to be performed by it to-date under,

 

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and complied in all material respects with the terms of, the Trust Agreement, and is not in default, breach or delinquent in performance in any material respect under the Trust Agreement, and, to the knowledge of DSAQ, no event has occurred which, with due notice or lapse of time or both, would constitute such a default or breach thereunder. There are no Proceedings pending or, to the knowledge of DSAQ, threatened with respect to the Trust Account. Since September 28, 2021, DSAQ has not released any money from the Trust Account (other than interest income earned on the principal held in the Trust Account as permitted by the Trust Agreement). As of the Effective Time, the obligations of DSAQ to dissolve or liquidate pursuant to DSAQ’s Governing Documents shall terminate, and, as of the Effective Time, DSAQ shall have no obligation whatsoever pursuant to DSAQ’s Governing Documents to dissolve and liquidate the assets of DSAQ by reason of the consummation of the transactions contemplated hereby. Following the Effective Time, no holder of DSAQ Shares shall be entitled to receive any amount from the Trust Account except to the extent such holder is a Redeeming Stockholder.

Section 4.06 SEC Filings. DSAQ has timely filed or furnished all required registration statements, forms, reports, schedules and other documents required to be filed or furnished by it prior to the date of this Agreement with the SEC pursuant to Federal Securities Laws since its initial public offering (collectively, and together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of filing through the date of this Agreement, the “DSAQ SEC Reports”), and, as of the Closing, shall have filed or furnished all other statements, forms, reports and other documents required to be filed or furnished by it subsequent to the date of this Agreement with the SEC pursuant to Federal Securities Laws through the Closing (collectively, and together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of filing, but excluding the Registration Statement/Proxy Statement, the “Additional DSAQ SEC Reports”). All DSAQ SEC Reports, Additional DSAQ SEC Reports, any correspondence from or to the SEC or the Current Stock Exchange (other than such correspondence in connection with the initial public offering of DSAQ) and all certifications and statements required by (i) Rule 13a-14 or 15d-14 under the Exchange Act or (ii) 18 U.S.C. § 1350 (Section 906) of the Sarbanes-Oxley Act with respect to any of the foregoing are, or will be, as applicable, available on the SEC’s Electronic Data-Gathering, Analysis and Retrieval system (EDGAR) in full without redaction. The DSAQ SEC Reports were, and the Additional DSAQ SEC Reports will be, prepared 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. The DSAQ SEC Reports did not, and the Additional DSAQ SEC Reports will not, as of their respective dates of filing with the SEC (or if amended or superseded by a filing prior to the date of this Agreement or the Closing Date, then on the date of such filing), 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 light of the circumstances under which they were or will be made, not misleading (for purposes of the Additional DSAQ SEC Reports, assuming that the representation and warranty set forth in Section 3.24 is true and correct in all respects with respect to all information supplied by or on behalf of the Blade Group expressly for inclusion or incorporation by reference therein). As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the DSAQ SEC Reports.

 

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Section 4.07 Internal Controls; Listing; Financial Statements.

(a) Except as is not required in reliance on exemptions from various reporting requirements by virtue of DSAQ’s status as an “emerging growth company” within the meaning of the Securities Act, as modified by the JOBS Act, or “smaller reporting company” within the meaning of the Exchange Act, since its initial public offering, (i) DSAQ has established and maintained a system of internal controls over financial reporting (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act), which are, to DSAQ’s knowledge, sufficient to provide reasonable assurance regarding the reliability of DSAQ’s financial reporting and the preparation of DSAQ’s Financial Statements for external purposes in accordance with GAAP and (ii) DSAQ has established and maintained disclosure controls and procedures as required under Rule 13a-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that material information relating to DSAQ is made known to DSAQ’s principal executive officer and principal financial officer by others within DSAQ.

(b) DSAQ has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.

(c) Since its initial public offering through the date of this Agreement, except as set forth in Section 4.07(c) of the DSAQ Disclosure Schedules, DSAQ has complied in all material respects with all applicable listing and corporate governance rules and regulations of the Current Stock Exchange. As of the date of this Agreement, (i) the DSAQ Units, DSAQ Class A Shares and DSAQ Warrants are registered pursuant to Section 12(b) of the Exchange Act, and (ii) the DSAQ Units and DSAQ Class A Shares are listed for trading on the Current Stock Exchange. As of the date of this Agreement, there is no Proceeding pending or, to DSAQ’s knowledge, threatened against DSAQ by the Current Stock Exchange or the SEC with respect to any intention by such entity to deregister the DSAQ Units, DSAQ Class A Shares or DSAQ Warrants, or prohibit or terminate the listing of DSAQ Units or DSAQ Class A Shares on the Current Stock Exchange. DSAQ has not taken any action that is designed to terminate the registration of DSAQ Units, DSAQ Class A Shares or DSAQ Warrants under the Exchange Act.

(d) The audited financial statements and unaudited interim financial statements (including, in each case, the notes and schedules thereto) included in the DSAQ SEC Reports (the “DSAQ Financial Statements”) (i) fairly present in all material respects the financial position of DSAQ as at the respective dates thereof, and the results of its operations, shareholders’ equity and cash flows for the respective periods then ended (subject, in the case of any unaudited interim financial statements, to normal year-end audit adjustments (none of which is expected to be material) and the absence of notes thereto), (ii) were prepared in conformity with GAAP applied on a consistent basis during the periods indicated (except, in the case of any audited financial statements, as may be indicated in the notes thereto and subject, in the case of any unaudited financial statements, to normal year-end audit adjustments (none of which is expected to be material) and the absence of notes thereto), (iii) in the case of the audited DSAQ Financial Statements, were audited in accordance with the standards of the standards of the Public Company Accounting Oversight Board (the “PCAOB”) and (iv) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).

 

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(e) DSAQ has established and maintains systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for DSAQ’s and its Subsidiaries’ assets. DSAQ maintains and, for all periods covered by the DSAQ Financial Statements, has maintained books and records of DSAQ in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of DSAQ in all material respects.

(f) Since its incorporation, neither DSAQ (including any employee thereof) nor DSAQ’s independent auditors have identified or been made aware of: (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by DSAQ; (ii) any fraud, whether or not material, that involves DSAQ’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by DSAQ; or (iii) any claim or allegation regarding any of the foregoing.

(g) Section 4.07(g) of the DSAQ Disclosure Schedules sets forth the principal amount of all of the outstanding Indebtedness for borrowed money, as of the date hereof, of DSAQ.

Section 4.08 No Undisclosed Liabilities. Except for the Liabilities (a) set forth or disclosed in the DSAQ Financial Statements included in the DSAQ SEC Reports, (b) that are DSAQ Transaction Expenses or that are or were otherwise incurred in connection with the negotiation, preparation or execution of this Agreement or any other Transaction Document, the performance of its covenants or agreements in this Agreement or any other Transaction Document or the consummation of the Transactions or (c) that have arisen since the date of DSAQ’s most recent consolidated balance sheets (and the notes thereto) included in the DSAQ SEC Reports, DSAQ does not have any Liabilities that are required by GAAP to be set forth on a consolidated balance sheet of DSAQ, whether or not accrued, contingent or otherwise.

Section 4.09 Litigation. There is no Proceeding pending or, to DSAQ’s knowledge, threatened against or involving DSAQ that, if adversely decided or resolved, would have a DSAQ Material Adverse Effect. As of the date of this Agreement, neither DSAQ nor any of its properties or assets is subject to any material Governmental Order. As of the date of this Agreement, there are no material Proceedings by DSAQ pending against any other Person.

Section 4.10 Compliance with Laws. DSAQ is (and since its incorporation has been) in compliance with all applicable Laws, except as would not reasonably be expected to be, individually or in the aggregate, material to DSAQ.

Section 4.11 Material Contracts.

(a) As of the date of this Agreement, other than this Agreement, the Transaction Documents and any Contracts related to DSAQ Transaction Expenses, there are no Contracts to which DSAQ is a party or by which any of its properties or assets may be bound, subject or affected, which creates or imposes a Liability greater than $250,000 (each, a “DSAQ Material Contract”).

 

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(b) With respect to each DSAQ Material Contract: (i) such DSAQ Material Contract was entered into at arms’ length and in the ordinary course of business, (ii) the DSAQ Material Contract is legal, valid, binding and enforceable in all material respects against DSAQ and, to the knowledge of DSAQ, the other parties thereto, and is in full force and effect; (iii) DSAQ is not in breach or default in any material respect, and no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default in any material respect by DSAQ, or permit termination or acceleration by the other party, under such DSAQ Material Contract; and (iv) to the Knowledge of DSAQ, no other party to any DSAQ Material Contract is in breach or default in any material respect, and no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default by such other party, or permit termination or acceleration by DSAQ under any DSAQ Material Contract.

Section 4.12 Business Activities.

(a) Since its incorporation, DSAQ has not conducted any business activities other than activities related to DSAQ’s initial public offering, existence as a public company, or directed toward the accomplishment of a business combination.

(b) DSAQ does not own or have a right to acquire, directly or indirectly, any interest or investment (whether equity or debt) in any corporation, partnership, joint venture, business, trust or other entity.

(c) DSAQ does not own or lease any real property or material personal property.

Section 4.13 Employee Benefit Plans. DSAQ has not ever had any employees. DSAQ does not maintain, sponsor or contribute to, any Benefit Plan or employee benefit plan (as defined in Section 3(3) of ERISA, whether or not subject to ERISA) or any other plan, policy, program, arrangement or agreement that provides compensation and/or benefits to any current or former employee, officer, director or individual independent contractor thereof (“DSAQ Benefit Plans”), nor does DSAQ have any obligation or commitment to create or adopt any such DSAQ Benefit Plan.

Section 4.14 Taxes.

(a) All material Tax Returns required by Law to be filed by DSAQ have been timely filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns are true, correct and complete in all material respects.

(b) All material amounts of Taxes due and owing by DSAQ have been paid, other than Taxes which are not yet due and payable or are being contested in good faith by appropriate Proceedings and for which reserves have been established in accordance with GAAP.

(c) DSAQ has (i) withheld all material amounts of Taxes required to have been withheld by it in connection with amounts paid or owed to any employee, independent contractor, creditor, shareholder or any other third party, (ii) remitted, or will remit on a timely basis, such amounts to the appropriate Governmental Authority and (iii) complied in all material respects with applicable Law with respect to Tax withholding, including all reporting and record keeping requirements.

 

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(d) No written claim has been made by any Governmental Authority in a jurisdiction where DSAQ does not file Tax Returns of a particular type that DSAQ is or may be subject to taxation of such type by, or required to file Tax Returns of such type in, such jurisdiction which claim has not been withdrawn or otherwise resolved.

(e) DSAQ is not a party to, or bound by, any Tax allocation, Tax sharing, Tax indemnification or similar agreement that will remain in effect after the Closing Date (other than customary provisions in agreements the primary purpose of which does not relate to Taxes).

(f) DSAQ is not engaged in any material audit, administrative Proceeding or judicial Proceeding with respect to a material amount of Taxes. DSAQ has not received any written notice from a Governmental Authority of a dispute or claim with respect to a material amount of Taxes, other than disputes or claims that have since been resolved.

(g) There are no Liens with respect to material Taxes on any of the assets of DSAQ, other than Permitted Liens.

(h) DSAQ does not have any material liability for the Taxes of any Person (i) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), (ii) as a transferee or successor or (iii) by Contract (except, in each case of clause (i), (ii) and (iii), for liabilities pursuant to commercial Contracts not primarily relating to Taxes or customary financing arrangements).

(i) DSAQ has not taken any action (or permitted any action to be taken) or failed to take any action, nor is DSAQ aware of any fact, plan or circumstance, which action, failure to act, fact, plan or circumstance would reasonably be expected to prevent the Merger, together with the Note Conversion and the Pre-Closing Reorganization, from qualifying for the U.S. Intended Tax Treatment, in each case other than as contemplated by this Agreement or any other Transaction Document.

(j) DSAQ will not be required to pay any Tax after the Closing Date as a result of (i) the delay of payment of employment Taxes under any COVID-19 Measure or any similar notice or order or law or (ii) the advance refunding or receipt of credits under any COVID-19 Measure.

Section 4.15 Absence of Changes. Since December 31, 2022 and through the date of this Agreement, (a) there has not been any event or occurrence that has had, or would reasonably be expected to have, individually or in the aggregate, a DSAQ Material Adverse Effect and (b) except as expressly contemplated by this Agreement, any other Transaction Document or in connection with the Transactions, DSAQ has conducted its business in the ordinary course in all material respects, other than due to any actions taken due to any COVID-19 Measure.

Section 4.16 Transactions with Affiliates. Except for the Contracts set forth on the DSAQ Disclosure Schedules, there are no Contracts between (a) DSAQ, on the one hand, and any (b) officer, director, employee, partner, member, manager, beneficial owner (within the meaning of Section 13(d) of the Exchange Act) of 5% or more of the capital stock or equity interests of any of DSAQ, any Affiliate of DSAQ or any immediate family member of the foregoing Persons, on the other hand (each Person identified in this clause (b), a “DSAQ Related Party”).

 

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Section 4.17 Investment Company Act. DSAQ is not an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of a Person subject to registration and regulation as an “investment company,” in each case, within the meaning of the Investment Company Act of 1940.

Section 4.18 DSAQ Recommendation. The DSAQ Board has, at a meeting duly called and held at which all directors of DSAQ were present, duly and unanimously adopted resolutions (a) determining that this Agreement and the transactions contemplated hereby, including the Merger, are advisable, and in the best interests of, DSAQ and the holders of DSAQ Shares, (b) approving and declaring advisable this Agreement and the transactions contemplated hereby, including the Merger, (c) directing that this Agreement be submitted to the holders of DSAQ Shares for their adoption and (d) resolving to make the DSAQ Recommendation, which resolutions have not been subsequently rescinded, modified or withdrawn in any way, except as may be permitted by Section 6.06(b).

Section 4.19 Brokers. No broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions based upon arrangements made by or on behalf of DSAQ for which DSAQ has any obligation.

Section 4.20 Information Supplied. None of the information supplied or to be supplied by, or on behalf of, DSAQ expressly for inclusion or incorporation by reference prior to the Closing in the Registration Statement/Proxy Statement, any other document submitted or to be submitted to any other Governmental Authority or any announcement or public statement regarding the transactions contemplated hereby (including, without limitation, the Signing Press Release), at (a) the time such information is filed, submitted or made publicly available (provided, if such information is revised by any subsequently filed amendment or supplement to the Registration Statement/Proxy Statement prior to the time the Registration Statement/Proxy Statement is declared effective by the SEC, this clause (a) shall solely refer to the time of such subsequent revision or supplement); (b) the time the Registration Statement/Proxy Statement is declared effective by the SEC; (c) the time the Registration Statement/Proxy Statement included is first mailed to DSAQ stockholders; (d) the time of the Special Meeting; (e) the time of the DSAQ Warrantholder Meeting or (f) the Closing, 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; provided, however, that DSAQ makes no representations or warranties as to the information contained in or omitted from the Registration Statement/Proxy Statement in reliance upon and in conformity with information furnished in writing to DSAQ by or on behalf of the Blade Group specifically for inclusion in the Registration Statement/Proxy Statement.

 

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ARTICLE V

COVENANTS OF THE BLADE GROUP

Section 5.01 Conduct of Business of the Blade Group During the Interim Period.

(a) From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms (the “Interim Period”), the Blade Group shall, use commercially reasonable efforts to (i) conduct and operate the business of the Blade Group in the ordinary course of business and maintain all assets of the Blade Group in the ordinary course of business, (ii) preserve intact the current business organization and ongoing business of the Blade Group and maintain the existing relations and goodwill of the Blade Group with customers, suppliers, joint venture partners, distributors and creditors of the Blade Group and (iii) keep available the services of their present officers and other key employees, in each case, except as otherwise contemplated by and in accordance with this Agreement or any other Transaction Document, including, for the avoidance of doubt, with respect to the Pre-Closing Reorganization or a Permitted Financing, as required by applicable Law or COVID-19 Measures (provided, that the Blade Group shall promptly inform DSAQ of any actions taken pursuant to COVID-19 Measures), as set forth on Section 5.01(a) of the Blade Group Disclosure Schedules, or as consented to in writing by DSAQ (such consent not to be unreasonably withheld, conditioned or delayed).

(b) Without limiting the generality of the foregoing, except as otherwise contemplated by and in accordance with this Agreement or any other Transaction Document, including, for the avoidance of doubt, with respect to the Pre-Closing Reorganization and any Permitted Financing, as required by applicable Law or COVID-19 Measures, as set forth on Section 5.01(b) of the Blade Group Disclosure Schedules or as consented to in writing by DSAQ (such consent not to be unreasonably withheld, conditioned or delayed), during the Interim Period, the Blade Group shall not, do any of the following:

(i) (A) merge, consolidate, combine or amalgamate any member of the Blade Group with any Person or (B) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a material portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof;

(ii) (A) authorize for issuance, issue, sell, transfer, pledge, encumber, dispose of or deliver any additional Equity Securities of any member of the Blade Group, or adjust, split, combine, subdivide, recapitalize, reclassify or otherwise effect any change in respect of any of the Equity Securities of any member of the Blade Group, or (B) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any Equity Securities of any member of the Blade Group, except with respect to the foregoing clauses (A) and (B), (1) for the acquisition by any member of the Blade Group of any Equity Securities of any member of the Blade Group in connection with the forfeiture or cancellation of such Equity Securities or (2) for transactions between PubCo and any of its wholly owned Subsidiaries or between wholly owned Subsidiaries of PubCo;

(iii) adopt any amendments, supplements, restatements or modifications to the Governing Documents of any member of the Blade Group, except, with respect to PubCo’s Subsidiaries, (A) in the ordinary course of business, (B) as would not materially restrict the operations of such Subsidiary and (C) as would not have an adverse impact on DSAQ;

 

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(iv) adopt any amendments, supplements, restatements or modifications to the Transaction Documents;

(v) other than the issuance of shares by a wholly owned Subsidiary of PubCo to PubCo or another wholly-owned Subsidiary of PubCo, (A) make, declare or pay any dividend or distribution (whether in cash, stock or property) to any Person, or (B) transfer, issue, sell, grant or otherwise directly or indirectly dispose of, or subject to a Lien (other than Permitted Liens), (1) any Equity Securities of any member of the Blade Group or (2) any options, warrants, stock units, rights of conversion or other rights, agreements, arrangements or commitments obligating any member of the Blade Group to issue, deliver or sell any Equity Securities of any member of the Blade Group;

(vi) (A) issue or sell any debt securities or rights to acquire any debt securities of any member of the Blade Group or guarantee any debt securities of another Person, or (B) incur, create, assume, refinance, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, other than ordinary course trade payables that are not past due;

(vii) make any loans, advances or capital contributions to, or guarantees for the benefit of, or any investments in, any Person, make any material change in its existing borrowing or lending arrangements relating to such loans, advances, capital contributions or investments for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of any other Person, other than (A) the reimbursement of expenses of employees in the ordinary course of business and (B) loans solely between or among any members of the Blade Group;

(viii) (A) sell, transfer, assign, abandon, lease, sublease, license, sublicense or convey or otherwise dispose of any material assets (excluding Intellectual Property), properties or business of any member of the Blade Group (which shall, in all events, include all Owned Real Property and all Leased Real Property), other than dispositions of obsolete or worthless assets and other than in the ordinary course of business or (B) create, subject or incur any Lien on any material assets, properties or business of any member of the Blade Group (other than a Permitted Lien or in connection with the incurrence of Indebtedness otherwise permitted by this Section 5.01(b));

(ix) (A) transfer, sell, assign, abandon, license or sublicense (other than grant non-exclusive licenses in the ordinary course of business), let expire (other than expiration of Intellectual Property rights in accordance with its maximum statutory term) or otherwise dispose of any Intellectual Property or (B) disclose any trade secrets (other than pursuant to a written confidentiality agreement entered into in the ordinary course of business);

(x) other than in the ordinary course of business, (A) materially amend, modify or terminate, or waive or release any material rights, claims or benefits under, any Material Contract (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any Material Contract pursuant to its terms or entering into additional work or purchase orders pursuant to, and in accordance with the terms of, any Material Contract) or (B) enter into any Contract that would constitute a Material Contract had it been entered into prior to the date of this Agreement, assuming, in each case, for the purposes of this subsection that the requisite dollar threshold for qualifying as a Material Contract, if applicable, is $400,000;

 

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(xi) except as required under the terms of any Blade Group Benefit Plan, (A) materially amend or modify, adopt, enter into, establish or terminate any Blade Group Benefit Plan or any benefit or compensation plan, policy, program, agreement, arrangement or Contract that would be a material Blade Group Benefit Plan if in effect as of the date of this Agreement, (B) materially increase or agree to materially increase the compensation or benefits payable to any current or former director, manager, officer, individual service provider or employee with annual base compensation exceeding $50,000 (in each case, other than ordinary course merit-based base compensation increases of up to 10% prior to such change, consistent with past practice), (C) take any action to accelerate any payment, right to payment or benefit, vesting of any right to payment or benefit, or the funding of any payment, right to payment or benefit, payable or to become payable to any current or former director, manager, officer, employee or other individual service provider of the Blade Group, or (D) issue, grant or promise to grant any Equity Securities to any current or former employee, director or other individual service provider;

(xii) (A) waive, release, compromise, settle or satisfy any pending or threatened Proceeding or (B) enter into any settlement, conciliation or similar Contract, in each case of clauses (A) and (B), the performance of which would involve the payment by any member of the Blade Group, in each case, in excess of $100,000, or that imposes, or by its terms shall impose at any point in the future, any material, non-monetary obligations on any member of the Blade Group;

(xiii) negotiate, modify, extend, terminate, or enter into any Labor Agreement or recognize or certify any labor union, labor organization, works council, or group of employees as the bargaining representative for any employees of the Blade Group;

(xiv) implement or announce any employee layoffs, plant closings, reductions in force, furloughs, temporary layoffs, salary or wage reductions, work schedule changes or other such actions that could implicate any Employee Notice Layoff Laws;

(xv) hire, engage, terminate (without cause), furlough, or temporarily layoff any employee or individual service provider with annual base compensation in excess of $100,000;

(xvi) waive or release any noncompetition, nonsolicitation, nondisclosure, noninterference, nondisparagement, or other restrictive covenant obligation of any current or former employee or independent contractor;

(xvii) make any capital expenditures (or commit to make any capital expenditures) that in the aggregate exceed $1,000,000, other than any capital expenditure (or series of related capital expenditures) consistent in all material respects with the Blade Group’s annual capital expenditure budget made available to DSAQ;

 

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(xviii) make any material change in financial accounting methods, principles or practices, except insofar as may have been required by a change in GAAP (including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization) or applicable Law;

(xix) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving any member of the Blade Group;

(xx) enter into any agreement that materially restricts the ability of any member of the Blade Group (including, following the Closing, PubCo and any of its Affiliates) to engage or compete in any material line of business, or enter into any agreement that restricts the ability of any member of the Blade Group (including, following the Closing, PubCo and any of its Affiliates) to enter a new material line of business;

(xxi) enter into, renew or amend in any material respect any Blade Group Related Party Contract;

(xxii) amend, modify, extend, renew or terminate any material Lease, or enter into any new lease, sublease, license or other agreement for the use or occupancy of any real property;

(xxiii) enter into any material new line of business outside of (A) the business currently conducted by the Blade Group as of the date of this Agreement or (B) any business contemplated to be conducted in accordance with the Blade Group’s annual budget made available to DSAQ;

(xxiv) make, change or rescind any material election relating to Taxes; settle any Proceeding relating to material Taxes; file any amended material Tax Return; change or request to change any method of accounting for Tax purposes; waive or extend any statute of limitations in respect of a period within which an assessment or reassessment of material Taxes may be issued or in respect of any material Tax attribute that would give rise to any claim or assessment of Taxes of or with respect to the Blade Group; or enter into any written agreement regarding Taxes with any Governmental Authority;

(xxv) knowingly take any action, or knowingly fail to take any action, where such action or failure to act would reasonably be expected to prevent the Merger, together with the Note Conversion and the Pre-Closing Reorganization, from qualifying for the U.S. Intended Tax Treatment; or

(xxvi) enter into any Contract to take, or cause to be taken, or resolve to take, any of the actions set forth in this Section 5.01(b).

(c) Notwithstanding anything in this Agreement to the contrary, nothing set forth in this Agreement shall give DSAQ, directly or indirectly, the right to control or direct the operations of any member of the Blade Group during the Interim Period.

 

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Section 5.02 Trust Account Waiver. Each of PubCo, IndiaCo, Blade India and Merger Sub acknowledges that DSAQ is a blank check company with the power and privileges to effect a business combination, and that such Party has read the IPO Prospectus, DSAQ SEC Reports, DSAQ’s Governing Documents and the Trust Agreement and understands that DSAQ has established the Trust Account described therein for the benefit of DSAQ’s public shareholders and that disbursements from the Trust Account are available only in the limited circumstances set forth in the Trust Agreement. Each of PubCo, IndiaCo, Blade India and Merger Sub further acknowledges that, if the Transactions, or, in the event this Agreement is terminated pursuant to its terms, another business combination is not consummated by the last date for DSAQ to consummate its business combination pursuant to DSAQ’s Governing Documents (as amended by an Extension, if applicable), DSAQ shall be obligated to return to its stockholders the amounts being held in the Trust Account. Accordingly, each of PubCo, IndiaCo, Blade India and Merger Sub (on behalf of itself and its Affiliates), notwithstanding anything to the contrary in this Agreement, hereby waives any past, present or future claim of any kind against, and any right to access, the Trust Account or to collect from the Trust Account any monies that may be owed to them by DSAQ or any of its Affiliates for any reason whatsoever, and shall not seek recourse against the Trust Account at any time for any reason whatsoever, including for any Willful Breach of this Agreement; provided, that nothing herein shall serve to limit or prohibit PubCo’s, IndiaCo’s, Blade India’s or Merger Sub’s right to pursue a claim against DSAQ or any of its Affiliates for legal relief against assets held outside of the Trust Account (including from and after the consummation of a business combination other than as contemplated by this Agreement) or pursuant to Section 10.14 for specific performance or other injunctive relief (so long as such claim would not affect DSAQ’s ability to fulfill its redemption obligations). This Section 5.02 shall survive the termination of this Agreement for any reason.

Section 5.03 DSAQ D&O Indemnification and Insurance.

(a) Each Party agrees that (i) all rights to indemnification or exculpation now existing in favor of the directors, officers, members, managers and employees of DSAQ, as provided in DSAQ’s Governing Documents or otherwise in effect as of the Closing Date, in either case, solely with respect to any matters occurring on or prior to the Closing, shall survive the Transactions and shall continue in full force and effect from and after the Closing for a period of six (6) years and (ii) PubCo shall, and shall cause the Surviving SPAC to, perform and discharge all obligations to provide such indemnity and exculpation during such six-year period in each case to the maximum extent permitted by applicable Law. To the maximum extent permitted by applicable Law, during such six-year period, PubCo shall, and shall cause the Surviving SPAC to, advance expenses in connection with such indemnification as provided in DSAQ’s Governing Documents. The indemnification and liability limitation or exculpation provisions of DSAQ’s Governing Documents shall not, during such six-year period, be amended, repealed or otherwise modified after the Closing in any manner that would adversely affect the rights thereunder of individuals who, as of the Closing or at any time prior to the Closing, were directors or officers of DSAQ (the “DSAQ D&O Persons”) to be so indemnified, have their liability limited or be exculpated with respect to any matters occurring on or prior to Closing and relating to the fact that such DSAQ D&O Person was a director or officer of DSAQ prior to the Closing, unless such amendment, repeal or other modification is required by applicable Law.

 

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(b) PubCo shall not have any obligation under this Section 5.03 to any DSAQ D&O Person when and if a court of competent jurisdiction shall ultimately determine (and such determination shall have become final and non-appealable) that the indemnification of such DSAQ D&O Person in the manner contemplated hereby is prohibited by applicable Law.

(c) If PubCo or any of its respective successors or assigns (i) shall merge or consolidate with or merge into any other corporation or entity and shall not be the surviving or continuing corporation or entity of such consolidation or merger or (ii) shall Transfer all or substantially all of their respective properties and assets as an entity in one or a series of related transactions to any Person, then in each such case, proper provisions shall be made so that the successors or assigns of PubCo shall assume all of the obligations set forth in this Section 5.03.

(d) The DSAQ D&O Persons entitled to the indemnification, liability limitation, exculpation and insurance set forth in this Section 5.03 are intended to be third-party beneficiaries of this Section 5.03. This Section 5.03 shall survive the consummation of the Transactions and shall be binding on all successors and assigns of the Blade Group.

Section 5.04 Blade Group D&O Indemnification and Insurance.

(a) Each Party agrees that (i) all rights to indemnification or exculpation now existing in favor of the directors, officers, members, managers and employees of any member of the Blade Group, as provided in such any member of the Blade Group’s Governing Documents or otherwise in effect as of the date of the Closing, in either case, solely with respect to any matters occurring on or prior to the Closing, shall survive the Transactions and shall continue in full force and effect from and after the Closing for a period of six (6) years and (ii) PubCo shall cause each other member of the Blade Group to perform and discharge all obligations to provide such indemnity and exculpation during such six-year period in each case to the maximum extent permitted by applicable Law. To the maximum extent permitted by applicable Law, during such six-year period, PubCo shall cause each member of the Blade Group to advance expenses in connection with such indemnification as provided in such member of the Blade Group’s Governing Documents. The indemnification and liability limitation or exculpation provisions of the Blade Group’s Governing Documents shall not, during such six-year period, be amended, repealed or otherwise modified after the Closing in any manner that would adversely affect the rights thereunder of individuals who, as of the Closing or at any time prior to the Closing, were directors or officers of any member of the Blade Group (the “Blade Group D&O Persons”) to be so indemnified, have their liability limited or be exculpated with respect to any matters occurring on or prior to Closing and relating to the fact that such Blade Group D&O Person was a director or officer of any member of the Blade Group prior to the Closing, unless such amendment, repeal or other modification is required by applicable Law.

(b) PubCo shall not have any obligation under this Section 5.04 to any Blade Group D&O Person when and if a court of competent jurisdiction shall ultimately determine (and such determination shall have become final and non-appealable) that the indemnification of such Blade Group D&O Person in the manner contemplated hereby is prohibited by applicable Law.

 

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(c) PubCo shall purchase, at or prior to the Closing, and maintain, or cause to be maintained, in effect for a period of six (6) years after the Closing Date, without any lapse in coverage, a “tail” policy providing directors’ and officers’ liability insurance coverage for the benefit of those Persons who are covered by any comparable insurance policies of DSAQ as of the date of this Agreement with respect to matters occurring on or prior to the Closing (the “DSAQ D&O Tail Policy”). Such “tail” policy shall provide coverage on terms (with respect to coverage and amount) that are substantially the same as (and no less favorable in the aggregate to the insured than) the coverage provided under DSAQ’s directors’ and officers’ liability insurance policies as of the date of this Agreement; provided, that PubCo shall not be obligated to pay a premium for such “tail” policy in excess of 300% of the most recent annual premium paid by DSAQ prior to the date of this Agreement and, in such event, PubCo shall purchase the maximum coverage available for 300% of the most recent annual premium paid by DSAQ prior to the date of this Agreement.

(d) If PubCo or any of its respective successors or assigns (i) shall merge or consolidate with or merge into any other corporation or entity and shall not be the surviving or continuing corporation or entity of such consolidation or merger or (ii) shall Transfer all or substantially all of their respective properties and assets as an entity in one or a series of related transactions to any Person, then in each such case, proper provisions shall be made so that the successors or assigns of PubCo shall assume all of the obligations set forth in this Section 5.04.

(e) The Blade Group D&O Persons entitled to the indemnification, liability limitation, exculpation and insurance set forth in this Section 5.04 are intended to be third-party beneficiaries of this Section 5.04. This Section 5.04 shall survive the consummation of the Transactions and shall be binding on all successors and assigns of the Blade Group.

Section 5.05 Financial Information.

(a) As soon as reasonably practicable following the date of this Agreement (and in any event no later than thirty (30) days following the date of this Agreement), the Blade Group shall use reasonable best efforts to deliver to PubCo and DSAQ the audited financial statements of Blade India and its Subsidiaries or PubCo, as applicable, as of and for the years ended March 31, 2022 (the “2022 Blade Group Audited Financial Statements”) and March 31, 2023 (the “2023 Blade Group Audited Financial Statements”) and the unaudited financial statements of Blade India and its Subsidiaries or PubCo, as applicable, as of and for the six (6) months ended September 30, 2023 (the “Interim Unaudited Financial Statements”). In addition, as soon as reasonably practicable following the end of the reportable period of such financial statements, the Blade Group shall use reasonable best efforts to deliver to PubCo and DSAQ, the audited financial statements of Blade India and its Subsidiaries or PubCo, as applicable, as of and for the year ended March 31, 2024, (the “2024 Blade Group Audited Financial Statements”) and any financial statements or similar reports of Blade India and its Subsidiaries, or PubCo, as applicable, required to be included in the Registration Statement/Proxy Statement, Form 6-K or Form 20-F filed in connection with and announcing the Closing or any other filings to be made with the SEC in connection with the transactions contemplated by this Agreement or any other Transaction Document (the “Other Blade Group Financial Statements”). The Other Blade Group Financial Statements, together with the 2022 Blade Group Audited Financial Statements, the 2023 Blade Group Audited Financial Statements, the Interim Unaudited Financial Statements and the 2024 Blade Group Audited Financial Statements (the “Closing Blade Group Financial Statements”) (i) shall be prepared in accordance with GAAP and Indian Accounting Standards, as applicable, applied on a consistent basis throughout the periods indicated (except, in the case of any audited financial statements, as may be specifically indicated in the notes thereto and subject, in the case of any unaudited financial

 

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statements, to normal year-end audit adjustments (none of which is expected to be, individually or in the aggregate, material) and the absence of notes thereto), (ii) shall fairly present, in all material respects, the financial position, results of operations, stockholders’ deficit and cash flows of IndiaCo and its Subsidiaries, or PubCo, as applicable, as at the date thereof and for the period indicated therein (subject to, in the case of any unaudited financial statements, normal year-end audit adjustments (none of which is expected to be, individually or in the aggregate, material)), (iii) in the case of any audited financial statements, shall be (A) certified as audited in accordance with GAAP and the standards of the PCAOB by a PCAOB qualified auditor upon the filing of the initial Registration Statement/Proxy, (B) shall contain an unqualified report of the Blade Group’s auditors, and PubCo’s auditors, if applicable, and (C) shall be substantially identical in all material respects to the unaudited Financial Statements from the same period that are attached as Section 3.06 of the Blade Group Disclosure Schedules and (iv) shall comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates of delivery (including Regulation S-X or Regulation S-K, as applicable).

(b) The members of the Blade Group shall use their respective reasonable best efforts (i) to assist, upon advance written notice, during normal business hours and in a manger such as to not unreasonably interfere with the normal operation of the Blade Group in causing to be prepared in a timely manner any other financial information or statements (including customary pro forma financial statements) that are required to be included in the Registration Statement/Proxy Statement and any other filings to be made by PubCo or DSAQ with the SEC in connection with the Transactions and (ii) to obtain the consents of PubCo’s auditors, if applicable, with respect thereto as may be required by applicable Law or requested by the SEC.

Section 5.06 Stock Exchange Listing. PubCo shall, use its reasonable best efforts to cause the PubCo Class A Ordinary Shares that constitute the DSAQ Share Consideration and, if applicable, the PubCo Warrants assumed in connection with the Merger to be approved for listing on the Stock Exchange (and DSAQ and Merger Sub shall reasonably cooperate in connection therewith), subject only to official notice of issuance, as promptly as practicable after the date of this Agreement, and in any event prior to the Closing Date and to cause PubCo to satisfy any applicable initial and continuing listing requirements of the applicable Stock Exchange.

Section 5.07 Pre-Closing Reorganization. Prior to the Closing and in connection with the Merger, PubCo shall complete a reorganization, in accordance with the steps and transactions set forth on Exhibit C attached hereto, with such modifications as PubCo and DSAQ may agree in writing (not to be unreasonably withheld, conditioned or delayed by either Party) (such transactions, the “Pre-Closing Reorganization”). The definitive documentation with respect to the Pre-Closing Reorganization shall be reasonably satisfactory to DSAQ. PubCo shall consider in good faith any comments to the definitive documentation with respect to the Pre-Closing Reorganization provided by or on behalf of DSAQ, and PubCo shall revise such definitive documentation to incorporate any changes PubCo and DSAQ determine are necessary or appropriate given such comments. In connection with the consummation of the Pre-Closing Reorganization, PubCo shall adopt new memorandum and articles of association to be in substantially the form attached hereto as Exhibit D (the “PubCo New Articles of Association”), as the same may be subject to further revisions or amendments as may be agreed between PubCo and DSAQ. Prior to the Pre-Closing Reorganization, Blade India shall procure, and following the Pre- Closing Reorganization, IndiaCo shall procure, that, in each such case, Transhermes shall not transfer, dispose of, forgive or otherwise waive the obligations of a counterparty under any of its assets, including prepaid amounts with respect to products or services.

 

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Section 5.08 Employee Matters. Prior to the Closing, the PubCo Board shall approve and adopt an incentive equity plan in a form mutually agreed upon between PubCo and DSAQ (the “Incentive Equity Plan”), reserving ten percent (10%) of the aggregate number of PubCo Ordinary Shares issued and outstanding immediately after the Closing on a fully-diluted, as converted and as exercised basis. As soon as reasonably practicable and permitted following the Closing Date and subject to stockholder approval of the Incentive Equity Plan, PubCo shall take commercially reasonable efforts to file an effective registration statement on Form S-8 (or other applicable form) with respect to the PubCo Class A Ordinary Shares issuable under the Incentive Equity Plan, and PubCo shall use commercially reasonable efforts to maintain the effectiveness of such registration statement(s) (and maintain the current status of the prospectus or prospectuses contained therein) for so long as awards granted pursuant to the Incentive Equity Plan remain outstanding.

Section 5.09 Termination of Blade Group Related Party Contracts. The Principal Shareholders and the Blade Group shall take, or cause to be taken, all actions necessary or advisable to terminate, effective as of the Closing, all Blade Group Related Party Contracts other than such Contracts set forth on Section 5.09 of the Blade Group Disclosure Schedules.

Section 5.10 Hunch Reorganization. During the Interim Period, Blade India, the Principal Shareholders and the members of the Blade Group shall execute such further documents, and perform such further acts, as may be reasonably necessary or appropriate to give full effect to the Hunch Reorganization, including by applying for and procuring the material registrations, licenses and permits required by IndiaCo in relation to the operation and conduct of the business undertakings transferred pursuant to the Slump Sale.

Section 5.11 Indian Foreign Exchange Control Laws. IndiaCo shall not conduct and/or engage in and/or undertake any business activity in which foreign direct investment of 100% under the automatic route (as understood under the extant Indian Foreign Exchange Control Laws) is not permitted. Transhermes shall not, and IndiaCo and Blade India, as applicable, shall procure that Transhermes shall not, conduct and/or engage in and/or undertake any business activity that is restricted or prohibited from receiving overseas direct investment in accordance with the extant Indian Foreign Exchange Control Laws.

Section 5.12 Re-Registration of PubCo. Prior to the Closing, PubCo shall re-register as an Irish public company limited by shares and change its name to “Hunch Technologies PLC” or such other name as agreed between the Parties.

Section 5.13 Approval of this Agreement. By virtue of its execution and delivery of this Agreement, PubCo, in its capacity as the holder of the requisite Equity Securities of each of Merger Sub and IndiaCo, hereby approves and adopts this Agreement and the transactions contemplated hereby and in the Transaction Documents.

 

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Section 5.14 Capital Reduction. PubCo shall, as soon as reasonably practicable following Closing and subject to the Irish High Court issuing a confirming order under Section 85 of Companies Act 2014, undertake an Irish High Court approved share capital reduction pursuant to Sections 84 to 86 of the Companies Act 2014 to create distributable reserves in PubCo in an amount up to the value of the share premium (and any other reserves capable of capitalisation) created by the Transactions (or such lower amount as may properly be approved by the PubCo Board).

Section 5.15 Intellectual Property and Data Protection. IndiaCo shall, as promptly as practicable after the date of this Agreement:

(a) appoint a point of contact, notify such appointment to the Indian Computer Emergency Response Team (“CERT-In”) and comply with the other requirements (including formulation of a policy) under the Directions (under Section 70B(6) of the Information Technology Act, 2000) issued by CERT-In on April 28, 2022;

(b) adopt (i) a privacy policy in compliance with the requirements under the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, (ii) a data retention policy allowing for retention of data, collected in connection with its business, solely for the purposes for which such information/data is collected, unless otherwise required under applicable Law, and (iii) a policy to collect Aadhaar numbers only in obscured or masked form or as virtual ID or collect alternative identity proof where practicable and where Aadhaar numbers are required to be submitted for provident fund purposes, the policy should provide for a process requiring their employees to directly submit their Aadhaar numbers to the employees provident fund organization; and

(c) apply for procurement of ISO 127001.

ARTICLE VI

COVENANTS OF DSAQ

Section 6.01 Conduct of DSAQ During the Interim Period.

(a) During the Interim Period, DSAQ shall not, except as otherwise contemplated by this Agreement or any other Transaction Document, as required by applicable Law or COVID-19 Measures, as set forth on Section 6.01 of the DSAQ Disclosure Schedules or as consented to in writing by PubCo (such consent not to be unreasonably withheld, conditioned or delayed), or as contemplated by the DSAQ Warrant Amendment, do any of the following:

(i) declare, set aside, make or pay a dividend on, or make any other distribution or payment in respect of, any Equity Securities of DSAQ, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding Equity Securities of DSAQ, other than, for the avoidance of doubt, in connection with the DSAQ Stockholder Redemptions;

(ii) (A) merge, consolidate, combine or amalgamate DSAQ with any Person or (B) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or any portion of the assets of any corporation, partnership, association or other business entity or organization or division thereof);

 

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(iii) adjust, split, combine, subdivide, recapitalize, reclassify or otherwise effect any change in respect of any of its Equity Securities;

(iv) adopt any amendments, supplements, restatements or modifications to the Trust Agreement or DSAQ’s Governing Documents;

(v) transfer, issue, sell, grant or otherwise directly or indirectly dispose of, or subject to a Lien (other than Permitted Liens) (A) any of its Equity Securities or (B) any options, warrants, rights of conversion or other rights, agreements, arrangements or commitments obligating DSAQ to issue, deliver or sell any of its Equity Securities;

(vi) incur, guarantee or otherwise become liable for any Indebtedness, other than the incurrence of Indebtedness pursuant to working capital loans in an aggregate amount not to exceed $750,000;

(vii) make any loans or advances to, or capital contributions to, or guarantees for the benefit of, or any investments in, any other Person;

(viii) enter into any Contract, except for Contracts contemplated by this Agreement or Contracts related to the Transactions;

(ix) engage in any activities or business, other than activities or business (A) conducted by DSAQ as of the date of this Agreement (B) in connection with or incident or related to DSAQ’s organization, incorporation or formation, as applicable, or continuing corporate (or similar) existence or as contemplated by the Additional DSAQ SEC Reports, (C) contemplated by, or incident or related to, this Agreement, the performance of covenants or agreements hereunder or thereunder or the consummation of the Transactions or (D) that are (1) administrative or ministerial and (2) immaterial in nature;

(x) adopt or enter into any material Benefit Plan or any material benefit or compensation plan, policy, program or Contract that would be a Benefit Plan if in effect as of the date of this Agreement;

(xi) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving DSAQ (other than as contemplated by this Agreement or any other Transaction Document);

(xii) take any action, or knowingly fail to take any action, where such action or failure to act would reasonably be expected to prevent the Merger, together with the Note Conversion and the Pre-Closing Reorganization, from qualifying for the U.S. Intended Tax Treatment; or

(xiii) enter into any agreement to do any of the action prohibited under this Section 6.01.

(b) Notwithstanding anything in this Section 6.01 or this Agreement to the contrary, nothing set forth in this Agreement shall give the Principal Shareholders or any member of the Blade Group, directly or indirectly, the right to control or direct the operations of DSAQ during the Interim Period.

 

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Section 6.02 Shareholder Litigation. In the event that any litigation related to the Transaction Documents or the Transactions is brought, or, to the knowledge of DSAQ, threatened in writing, against DSAQ or the DSAQ Board by any of DSAQ’s shareholders prior to the Closing, DSAQ shall promptly notify PubCo of any such litigation and keep PubCo reasonably informed with respect to the status thereof. DSAQ shall provide PubCo the opportunity to participate in (subject to a customary joint defense agreement), but not control, the defense of any such litigation (at PubCo’s sole cost and expense), and shall give due consideration to PubCo’s advice with respect to such litigation. Except as provided in Section 6.02 of the DSAQ Disclosure Schedules, DSAQ shall not settle any such litigation without the prior written consent of PubCo, such consent not to be unreasonably withheld, conditioned or delayed.

Section 6.03 DSAQ Public Filings. From the date of this Agreement through the Effective Time, DSAQ shall use reasonable best efforts to keep current and timely file all reports required to be filed or furnished with the SEC and otherwise comply in all material respects with its reporting obligations under applicable Laws.

Section 6.04 Trust Account Proceeds and Redemptions. Upon satisfaction or (to the extent permitted by applicable Law) waiver of the Transaction Conditions (other than any Transaction Conditions that by their terms or nature are to be satisfied at the Closing) and provision of notice thereof to the Trustee (which notice DSAQ shall provide to the Trustee in accordance with the terms of the Trust Agreement), (a) in accordance with and pursuant to the Trust Agreement, at the Closing, DSAQ (i) shall cause any documents, opinions and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered and (ii) shall cause the Trustee to, and the Trustee shall thereupon be obligated to (A) pay as and when due all amounts payable to holders of DSAQ Shares pursuant to the DSAQ Stockholder Redemptions (including any excise Taxes payable in connection therewith), (B) pay income and other Tax obligations from any interest income earned in the Trust Account and (C) pay all remaining amounts then available in the Trust Account to DSAQ for immediate use (or otherwise in accordance with DSAQ’s instructions), subject to this Agreement and the Trust Agreement and (b) thereafter, the Trust Account shall terminate, except as otherwise provided therein.

Section 6.05 De-Listing. Prior to the Closing, DSAQ shall reasonably cooperate with PubCo and use its reasonable best efforts to take, or cause to be taken, all actions reasonably necessary to de-list DSAQ Units and DSAQ Class A Shares from the applicable Stock Exchange on which such securities are trading and de-register such securities under the Exchange Act as soon as practicable following the Effective Time (and in no event later than five (5) Business Days thereafter).

 

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Section 6.06 No Change of Recommendation.

(a) Except as permitted by Section 6.06(b), the DSAQ Board, including any committee thereof, shall not:

(i) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the DSAQ Recommendation in a manner adverse to the Blade Group; or

(ii) fail to include the DSAQ Recommendation in the Registration Statement/Proxy Statement (any of the actions set forth in the foregoing clauses (i) and (ii), a “DSAQ Change of Recommendation”).

(b) Notwithstanding anything in this Agreement to the contrary, if, at any time prior to obtaining the Required DSAQ Stockholder Approval, the DSAQ Board determines in good faith, after consultation with its outside legal counsel that a Blade Group Material Adverse Effect has occurred on or after the date of this Agreement and as a result, the failure to make a DSAQ Change of Recommendation would be inconsistent with the DSAQ Board’s fiduciary duties under applicable Law, the DSAQ Board may, prior to obtaining the Required DSAQ Stockholder Approval, make a DSAQ Change of Recommendation; provided, however, that DSAQ shall not be entitled to make, or agree or resolve to make, a DSAQ Change of Recommendation unless (i) DSAQ delivers to PubCo a written notice (a “Material Adverse Effect Notice”) advising PubCo that the DSAQ Board proposes to take such action and containing the material facts underlying the DSAQ Board’s determination that a Blade Group Material Adverse Effect has occurred and that failure to make a DSAQ Change of Recommendation would be inconsistent with its fiduciary duties under applicable Law and (ii) at or after 5:00 p.m., New York time, on the fourth Business Day immediately following the day on which DSAQ delivered the Material Adverse Effect Notice (such period from the time the Material Adverse Effect Notice is provided until 5:00 p.m., New York time, on the fourth Business Day immediately following the day on which DSAQ delivered the Material Adverse Effect Notice (it being understood that any material development with respect to a Blade Group Material Adverse Effect require a new notice but with an additional three (3) Business Day (instead of four (4) Business Day) period from the date of such notice), the “Material Adverse Effect Notice Period”), the DSAQ Board reaffirms in good faith (after consultation with its outside legal counsel and financial advisor) that the failure to make a DSAQ Change of Recommendation would be inconsistent with its fiduciary duties under applicable Law. If requested by PubCo, DSAQ shall, and shall use its reasonable best efforts to cause its Representatives to, during the Material Adverse Effect Notice Period, engage in good faith negotiations with PubCo and its Representatives to make such adjustments in the terms and conditions of this Agreement so that the failure to make a DSAQ Change of Recommendation would not be inconsistent with the DSAQ Board’s fiduciary duties under applicable Law.

ARTICLE VII

JOINT COVENANTS

Section 7.01 Post-Closing PubCo Board. Prior to the Effective Time, PubCo shall take all actions necessary to cause, in each case, effective as of the Effective Time (a) the PubCo Board to be composed of seven (7) directors and (b) the initial directors of the PubCo Board to consist of (i) one (1) independent director as reasonably determined by Sponsor, (ii) the Chief Executive Officer of Hunch and (iii) five (5) independent directors as reasonably determined by Hunch, until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Governing Documents of PubCo.

 

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Section 7.02 Efforts to Consummate.

(a) Subject to the terms and conditions herein provided, each of DSAQ and PubCo shall, and, DSAQ shall cause its Affiliates, and PubCo shall cause its Subsidiaries to, (i) use reasonable best efforts to assemble, prepare and file notifications or any information (and, as needed, to supplement such notifications or information) as may be reasonably necessary to obtain as promptly as reasonably practicable all governmental and regulatory consents required to be obtained in connection with the Transactions, and, in the case of any notifications to be filed under the HSR Act, to submit such notifications no later than twenty (20) Business Days after the date of this Agreement, (ii) use reasonable best efforts to deliver the notices to, and/or obtain the consents of, the third parties set forth on Section 7.02(a) of the Blade Group Disclosure Schedules, in each case as set forth therein, in connection with the Transactions, (iii) use reasonable best efforts to take, or cause to be taken, and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as practicable the Transactions, including using reasonable best efforts to obtain all material approvals of Governmental Authorities that any of DSAQ, the Principal Shareholders, the Blade Group or their respective Affiliates are required to obtain in order to consummate the Transactions; provided, that in no event shall DSAQ or the Blade Group or any of their respective Affiliates be obligated to bear any expense, pay any fee (except as set forth in the last sentence of Section 7.02(b), and excluding any expenses or fees payable to the SEC in connection with the Transactions, including the Registration Statement/Proxy Statement) or grant any concession in connection with obtaining any such approvals, and that each Party shall bear its out-of-pocket costs and expenses in connection with obtaining any such approvals and (iv) take such other action as may reasonably be necessary or as any other Party may reasonably request to satisfy the conditions of the other Parties set forth in Article VIII or otherwise to comply with this Agreement.

(b) Each Party shall promptly inform the other Parties of any substantive communication between itself and any Governmental Authority regarding any of the Transactions. Without limiting the foregoing, no Party shall, and each Party shall cause its Affiliates not to, enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior consent of the other Parties. In connection with obtaining any such approvals, nothing in this Section 7.02 obligates any Party or any of its Affiliates to agree to, and PubCo, with respect to the Blade Group, shall not without DSAQ’s written consent, agree with any Governmental Authority to (i) sell, license or otherwise dispose of, or hold separate or agree to sell, license or otherwise dispose of, any entities, assets or facilities of any member of the Blade Group or any entity, facility or asset of DSAQ and any of its Affiliates, (ii) terminate, amend or assign existing relationships and contractual rights or obligations of any Party or any of its Affiliates, (iii) amend, assign or terminate existing licenses or other Contracts of any Party or any of its Affiliates or (iv) enter into new licenses or other Contracts in respect of any Party or any of its Affiliates. No Party shall agree to any of the foregoing measures with respect to any other Party or any of its Affiliates, except with such other Parties’ prior written consent (not to be unreasonably withheld, conditioned or delayed). Except to the extent otherwise constituting a Blade Group Transaction Expense hereunder, whether or not the Transactions are consummated, PubCo and DSAQ shall each be responsible for 50% of the filing fees paid or payable to any Governmental Authority (including filing fees under the HSR Act or any other applicable Law) in connection with the Transactions other than filing fees under the HSR Act for the acquisitions by PIPE Investors for the PIPE Investment (which shall be the sole responsibility of the PIPE Investors, as appropriate).

 

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(c) From and after the date of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, the Parties shall give legal counsel for the other Parties a reasonable opportunity to review in advance, and shall consider in good faith the views of the other in connection with, any proposed material written communication to any Governmental Authority relating to the Transactions. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person, videoconference, or by telephone with any Governmental Authority in connection with the Transactions unless, to the extent not prohibited by such Governmental Authority, it consults with the other Parties in advance. Notwithstanding the foregoing, any materials shared may be redacted before being provided to the other Parties (i) to remove references concerning the valuation of the Blade Group, (ii) as necessary to comply with contractual arrangements and (iii) as necessary to avoid disclosure of other competitively sensitive information or to address reasonable privilege or confidentiality concerns.

Section 7.03 PIPE Subscriptions.

(a) Unless otherwise approved in writing by PubCo, IndiaCo and DSAQ, and except for any actions that would not (i) increase conditionality of the Transactions or impose any new obligation on the Blade Group or DSAQ, (ii) reduce the amount of the Antara PIPE Investment or the Hunch PIPE Investment or (iii) reduce or impair the rights of DSAQ, IndiaCo or PubCo under the Antara Subscription Agreement or the Hunch Subscription Agreement, no member of the Blade Group nor DSAQ shall permit any amendment or modification to be made to, any waiver (in whole or in part) of, or provide consent to modify (including consent to terminate), any provision or remedy under, or any replacements of, the Antara Subscription Agreement or the Hunch Subscription Agreement, in each case, other than any assignment or transfer contemplated therein or expressly permitted thereby (without any further amendment, modification or waiver to such assignment or transfer provision) (the approval from PubCo, IndiaCo or DSAQ not to be unreasonably withheld, conditioned or delayed).

(b) Unless otherwise approved in writing by PubCo, IndiaCo and DSAQ, neither PubCo, IndiaCo, nor DSAQ shall (i) enter into any PIPE Subscription Agreement or (ii) following execution of any PIPE Subscription Agreement, permit any amendment or modification to be made to, any waiver (in whole or in part) of, or provide consent to modify (including consent to terminate), any provision or remedy under, or any replacements of, any PIPE Subscription Agreement, in each case, other than any assignment or transfer contemplated therein or expressly permitted thereby (without any further amendment, modification or waiver to such assignment or transfer provision) (the approval from PubCo or DSAQ, with respect to this clause (ii) not to be unreasonably withheld, conditioned or delayed).

(c) Each of PubCo, IndiaCo and DSAQ shall use its reasonable best efforts to take, or to cause to be taken, all actions required or necessary, or that it otherwise deems to be proper or advisable, to consummate the transactions contemplated by the Antara Subscription Agreement and the Hunch Subscription Agreement and, following the execution thereof, any PIPE Subscription Agreement on the terms described in the Antara Subscription Agreement, the Hunch Subscription Agreement or such PIPE Subscription Agreement, as applicable, including using its reasonable best efforts to enforce its rights, as applicable, under the Antara Subscription Agreement, the Hunch Subscription Agreement or such PIPE Subscription Agreement, as applicable, to cause the

 

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other parties thereto to pay to (or as directed by) DSAQ, as applicable, the applicable subscription price thereunder in accordance with its terms. Each of PubCo, IndiaCo and DSAQ, as applicable, shall give the other party prompt written notice (e-mail being acceptable): (i) of the receipt of any request from any other party to the Antara Subscription Agreement, the Hunch Subscription Agreement or any PIPE Subscription Agreement, as applicable, for an amendment to, modification of, supplement to, waiver under or termination thereof; (ii) of any breach or default to the knowledge of such Party that (or any event or circumstance that, to the knowledge of such party, with or without notice, lapse of time or both) would give rise to any breach or default, by any party to the Antara Subscription Agreement, the Hunch Subscription Agreement or any PIPE Subscription Agreement, as applicable; (iii) of the receipt by such Party of any written notice or other written communication with respect to any actual or potential threatened or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation of the Antara Subscription Agreement, the Hunch Subscription Agreement or any PIPE Subscription Agreement by another party thereto; and (iv) if such Party does not expect to receive all or any portion of the applicable purchase price under the Antara Subscription Agreement, the Hunch Subscription Agreement or any PIPE Subscription Agreement in accordance with its terms.

(d) During the Interim Period, DSAQ, on the one hand, and the Blade Group, on the other hand, shall use their respective reasonable best efforts to, and shall instruct their respective financial advisors to, keep the Parties reasonably informed with respect to the Antara PIPE Investment, the Hunch PIPE Investment and the PIPE Investment, including by (i) providing regular updates and (ii) consulting and cooperating with, and considering in good faith any feedback from, DSAQ, the Blade Group, or their respective financial advisors with respect to such matters; provided, that none of their respective financial advisors shall be entitled to any fees with respect to the Antara PIPE Investment, the Hunch PIPE Investment or the PIPE Investment unless otherwise mutually agreed by each of DSAQ, IndiaCo and PubCo in writing.

Section 7.04 Registration Statement/Proxy Statement; DSAQ Special Meeting; Warrantholder Meeting.

(a) Registration Statement/Proxy Statement.

(i) As promptly as practicable following the date of this Agreement, DSAQ, and PubCo shall prepare and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by any of the Parties), and PubCo shall file with the SEC, the Registration Statement/Proxy Statement. Each of DSAQ and PubCo shall use its reasonable best efforts to (A) cause the Registration Statement/Proxy Statement to comply in all material respects with the applicable rules and regulations promulgated by the SEC (including, with respect to PubCo, the provision of financial statements for the Blade Group for all periods, and in the form, required to be included in the Registration Statement/Proxy Statement under Securities Laws (after giving effect to any waivers received) or in response to any comments from the SEC), (B) promptly notify the other Parties of, reasonably cooperate with each other Party with respect to and respond promptly to, any comments of the SEC or its staff, (C) have the Registration Statement/Proxy Statement declared effective under the Securities Act as promptly as reasonably practicable after it is filed with the SEC and (D) keep the Registration Statement/Proxy Statement effective through the Closing in order to permit the consummation of the Transactions. Without limiting the generality of the foregoing, PubCo and DSAQ shall reasonably cooperate in connection with the preparation for inclusion in the Registration Statement/Proxy Statement of pro forma financial statements that comply with the requirements of Regulation S-X under the rules and regulations of the SEC (as interpreted by the staff of the SEC) to the extent such pro forma financial statements are required for the Registration Statement/Proxy Statement.

 

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(ii) DSAQ, on the one hand, and the Blade Group, on the other hand, shall promptly furnish to the other all information concerning such Party and its Representatives that may be required or reasonably requested in connection with any action contemplated by this Section 7.04(a) or for including in any other statement, filing, notice or application made by or on behalf of DSAQ or PubCo to the SEC or the applicable Stock Exchange in connection with the Transactions, including delivering customary Tax representation letters to counsel to enable counsel to deliver any Tax opinions requested or required by the SEC or to be submitted in connection therewith as described in Section 7.07(a). If any Party becomes aware of any information that should be disclosed in an amendment or supplement to the Registration Statement/Proxy Statement, then (A) such Party shall promptly inform, in the case of DSAQ, PubCo, or, in the case of the Principal Shareholders or a member of the Blade Group, DSAQ, thereof, (B) such Party shall prepare and mutually agree upon with, in the case of DSAQ, PubCo, or, in the case of the Principal Shareholders or any member of the Blade Group, DSAQ (such agreement not to be unreasonably withheld, conditioned or delayed by any Party), an amendment or supplement to the Registration Statement/Proxy Statement, (C) PubCo shall file such mutually agreed upon amendment or supplement with the SEC and (D) the Parties shall reasonably cooperate, if appropriate, in mailing such amendment or supplement to the Pre-Closing DSAQ Holders. PubCo shall promptly advise DSAQ of the time of effectiveness of the Registration Statement/Proxy Statement, the issuance of any stop order relating thereto or the suspension of the qualification of PubCo Class A Ordinary Shares and, if applicable, PubCo Warrants for offering or sale in any jurisdiction. Each of DSAQ and PubCo shall use its reasonable best efforts to have any such stop order or suspension lifted, reversed or otherwise terminated.

(iii) Each of the Parties shall use its reasonable best efforts to ensure that none of the information related to such Party or any of such Party’s Representatives, supplied by such Party or on such Party’s behalf for inclusion or incorporation by reference in the Registration Statement/Proxy Statement shall, at the time the Registration Statement/Proxy Statement is filed with the SEC, at each time at which it is amended, or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.

(b) DSAQ Special Meeting; Warrantholder Meeting. As promptly as practicable following the time at which the Registration Statement/Proxy Statement is declared effective under the Securities Act and, in any event within forty-five (45) days of the effectiveness of the Registration Statement/Proxy Statement, DSAQ shall (a) duly give notice of (x) a meeting of the Pre-Closing DSAQ Holders (the “Special Meeting”) and (y) a meeting of the holders of DSAQ Warrants (the “DSAQ Warrantholder Meeting”), (b) cause the Registration Statement/Proxy Statement to be mailed to the Pre-Closing DSAQ Holders and the holders of

 

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DSAQ Warrants and (c) duly convene and hold the Special Meeting and the DSAQ Warrantholder Meeting, in each case, in accordance with the Governing Documents of DSAQ and applicable Law, for the purposes of obtaining the Required DSAQ Stockholder Approval and the approval of the DSAQ Warrant Amendment Proposal, respectively, and, if applicable, any approvals related thereto and providing its stockholders with the opportunity to elect to effect the DSAQ Stockholder Redemptions. DSAQ shall, through the DSAQ Board, (A) recommend to its stockholders, except as permitted by Section 6.06(b), (i) the DSAQ Recommendation, and include such recommendation in the Registration Statement/Proxy Statement (the “Business Combination Proposal”), (ii) the approval of the issuance of the DSAQ Preferred Shares in connection with the Antara PIPE Investment as required by NYSE listing requirements (the “NYSE Proposal”), (iii) the adoption and approval of any other proposals as either the SEC or the applicable Stock Exchange (or the respective staff members thereof) may indicate are necessary in its comments to the Registration Statement/Proxy Statement or in correspondence related thereto, and of any other proposals reasonably agreed by DSAQ and PubCo as necessary or appropriate in connection with the consummation of the Transactions, (iv) the adjournment of the Special Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing, or to allow reasonable time for the DSAQ Board to accept reversals of elections to redeem DSAQ Class A Shares by the Pre-Closing DSAQ Holders (such proposals in clauses (i) through (iv) together, the “Transaction Proposals”), and (B) recommend to the holders of the DSAQ Warrants (1) the adoption and approval of an amendment to the DSAQ Warrant Agreement to provide that, effective immediately prior to the Effective Time, each DSAQ Warrant will automatically convert into one-fifth (1/5) of one DSAQ Class A Share (with no fractional shares being issued if less than five (5) DSAQ Warrants are held) (the “DSAQ Warrant Amendment”), and after giving effect to the DSAQ Warrant Amendment, no DSAQ Warrants will be outstanding, and the DSAQ Class A Shares resulting from such conversion will, at the Effective Time, be automatically cancelled and extinguished and converted into the right to receive PubCo Class A Ordinary Shares and CVRs in accordance with Section 2.01(b)(vi)(2), and (2) any other matters necessary or advisable to effect the DSAQ Warrant Amendment (such proposals in (B)(1) and (B)(2), together, the “DSAQ Warrant Amendment Proposal”), and include such recommendations in the Registration Statement/Proxy Statement; provided, that DSAQ may postpone or adjourn the Special Meeting or the DSAQ Warrantholder Meeting, as applicable, (A) to solicit additional proxies for the purpose of obtaining the Required DSAQ Stockholder Approval or the approval of the DSAQ Warrant Amendment Proposal, as applicable, (B) for the absence of a quorum, (C) to allow reasonable time for the filing or mailing of any supplemental or amended disclosures that DSAQ has determined, based on the advice of outside legal counsel, is reasonably likely to be required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Pre-Closing DSAQ Holders and holders of DSAQ Warrants prior to the Special Meeting or the DSAQ Warrantholder Meeting, as applicable or (D) to allow reasonable time for the DSAQ Board to accept reversals of elections to redeem DSAQ Class A Shares by the Pre-Closing DSAQ Holders; provided, further, that in no event shall DSAQ adjourn the Special Meeting or the DSAQ Warrantholder Meeting, as applicable, for more than fifteen (15) Business Days later than the most recently adjourned meeting or to a date more than thirty (30) Business Days after the original date of the Special Meeting or the DSAQ Warrantholder Meeting, as applicable, or, without the consent of the Principal Shareholders, to a date that is beyond the Termination Date.

 

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Section 7.05 Exclusive Dealing.

(a) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, each of PubCo, IndiaCo, Blade India and Merger Sub shall not, and shall cause their Representatives not to, directly or indirectly, (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), knowingly facilitate (including by commencing due diligence), discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Blade Alternate Transaction, (ii) furnish or disclose any non-public information to any Person in connection with, or that could reasonably be expected to lead to, a Blade Alternate Transaction, (iii) enter into any Contract or other arrangement or understanding regarding a Blade Alternate Transaction, (iv) make any filings with the SEC in connection with a public offering of any Equity Securities or other securities of the Blade Group (or any Affiliate or successor of the Blade Group) or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person (other than DSAQ) to do or seek to do any of the foregoing or seek to circumvent this Section 7.05(b) or further a Blade Alternate Transaction. Each of PubCo, IndiaCo, Blade India and Merger Sub also agree that, promptly following the execution of this Agreement, it shall, and shall cause each of its Subsidiaries to and shall use its reasonable best efforts to cause its and their Representatives to, (A) cease any solicitations, discussions or negotiations with any Person (other than the Parties and their respective Representatives) conducted prior to the execution of this Agreement in connection with any Blade Alternate Transaction or any inquiry or request for information that could reasonably be expected to lead to, or result in, a Blade Alternate Transaction and (B) terminate access to any physical or electronic data room maintained by or on behalf of the Principal Shareholder or the Blade Group and instruct each Person that has prior to the date hereof executed a confidentiality agreement in connection with its consideration of acquiring all or a portion of the Blade Group to return or destroy all confidential information furnished to such Person by or on behalf of the Blade Group prior to the date hereof.

(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, DSAQ shall not, and shall cause its Representatives not to, directly or indirectly (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), knowingly facilitate (including by commencing due diligence), discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to an DSAQ Alternate Transaction, (ii) furnish or disclose any non-public information to any Person in connection with, or that could reasonably be expected to lead to, a DSAQ Alternate Transaction, (iii) enter into any Contract or other arrangement or understanding regarding a DSAQ Alternate Transaction or (iv) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person (other than the Principal Shareholders and the Blade Group) to do or seek to do any of the foregoing or seek to circumvent this Section 7.05(b) or further a DSAQ Alternate Transaction. DSAQ agrees that, promptly following the execution of this Agreement, it shall, and shall cause its Representatives (in each such Person’s capacity as a Representative of DSAQ) to, (A) cease any solicitations, discussions or negotiations related to any DSAQ Alternate Transaction with any Person (other than the Parties and their respective Representatives) conducted prior to the execution of this Agreement in connection with any DSAQ Alternate Transaction or any inquiry or request for information that could reasonably be expected to lead to, or result in, a DSAQ Alternate Transaction and (B) instruct each Person that has prior to the date hereof executed a confidentiality agreement in connection with its consideration of a DSAQ Alternate Transaction to return or destroy all confidential information furnished to such Person by or on behalf of DSAQ or any of its Representatives prior to the date hereof.

 

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Section 7.06 Tax Matters.

(a) All transfer, documentary, sales, use, stamp, registration, excise, recording, registration, VAT and other such similar Taxes and fees (including any penalties and interest) that become payable in connection with or by reason of the execution of this Agreement and the Transactions (“Transfer Taxes”) (excluding, for the avoidance of doubt, the DSAQ Stockholder Redemptions) shall be borne and paid by the Blade Group. PubCo and DSAQ shall reasonably cooperate to minimize or reduce any Transfer Taxes to the extent permitted under applicable law. Blade Group shall also, at its own expense, file all necessary Tax Returns with respect to all such Taxes, and, if required by applicable Law, PubCo and DSAQ shall join in the execution of any such Tax Returns.

(b) The Parties intend that for U.S. federal (and applicable state and local) income Tax purposes the Merger, together with the Note Conversion and the Pre-Closing Reorganization, shall qualify for the U.S. Intended Tax Treatment. Each Party shall, and each Party shall cause its respective Affiliates to use best efforts to cause the Merger, together with the Note Conversion and the Pre-Closing Reorganization, to qualify for the U.S. Intended Tax Treatment. The Surviving SPAC shall not be liquidated for a period of twenty-four (24) months following the Closing Date, and the Surviving SPAC shall retain sufficient assets during such twenty-four (24) months such that the Surviving SPAC is not considered to be deemed to be liquidated for U.S. federal income tax purposes (which assets shall not be less than twenty-five percent (25%) of the cash in the Trust Account immediately following the deduction of amounts required to satisfy the DSAQ Stockholder Redemptions). For purposes of the immediately preceding sentence, the Surviving SPAC may make loans to other Persons and the obligations to the Surviving SPAC as a result of such loans shall be taken into account in determining the assets of the Surviving SPAC. Each Party shall file all Tax Returns relating to U.S. federal (and applicable state and local) income Tax consistent with, and no Party shall take any position for purposes of U.S. federal (and applicable state and local) income Tax inconsistent with (whether in audits, Tax Returns or otherwise), such treatment unless required to do so pursuant to a “determination” that is final within the meaning of Section 1313(a) of the Code. Each of the Parties agrees to promptly notify all other Parties of any challenge to the U.S. Intended Tax Treatment by any Governmental Authority. Notwithstanding anything to the contrary herein, if, after the date hereof DSAQ, in its sole discretion, determines that the Transaction is not reasonably expected to qualify for the U.S. Intended Tax Treatment, the parties shall use their commercially reasonable best efforts to restructure the Transactions contemplated hereby (such restructured transactions, the “Alternative Transaction Structure”) in a manner that is reasonably expected to cause the Alternative Transaction Structure to so qualify for a mutually preferred tax treatment.

(c) Following the Closing Date, PubCo shall, or shall cause Surviving SPAC to, comply with the Tax reporting obligations of Treasury Regulations Section 1.367(a)-3(c)(6), to the extent permitted under applicable Law. PubCo acknowledges that any historic DSAQ stockholder who owns five percent (5%) or more of PubCo shares immediately after the Closing, as determined under Section 367 of the Code and the Treasury Regulations promulgated thereunder, may enter into (and cause to be filed with the IRS) a gain recognition agreement in

 

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accordance with Treasury Regulations Section 1.367(a)-8. Upon the written request of any such historic DSAQ stockholder made following the Closing Date, PubCo shall (i) use reasonable efforts to furnish to such historic DSAQ stockholder such information as such historic DSAQ stockholder reasonably requests in connection with such historic DSAQ stockholder’s preparation of a gain recognition agreement, and (ii) use reasonable efforts to provide such historic DSAQ stockholder with the information reasonably requested by such historic DSAQ stockholder for purposes of determining whether there has been a gain “triggering event” under the terms of such historic DSAQ stockholder’s gain recognition agreement.

(d) If, in connection with the preparation and filing of the Registration Statement/Proxy Statement, the SEC requests or requires that Tax opinions be prepared and submitted in such connection, DSAQ, and PubCo, as applicable, shall use commercially reasonable efforts to deliver to Kirkland & Ellis LLP (or such other reputable law or accounting firm with expertise in U.S. federal income Tax matters mutually agreed by DSAQ and the Principal Shareholders (an “Alternative Advisor”)) customary Tax representation letters satisfactory to Kirkland & Ellis LLP (or such Alternative Advisor, as the case may be) dated and executed as of the date the Registration Statement/Proxy Statement shall have been 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 Registration Statement/Proxy Statement, and, if required, Kirkland & Ellis LLP (or such Alternative Advisor, as applicable) shall furnish an opinion to DSAQ, subject to customary assumptions and limitations, to the effect that the U.S. Intended Tax Treatment should apply to the Transactions.

(e) At or no more than thirty (30) days prior to the Closing, DSAQ shall deliver to PubCo a duly executed certificate and notice in compliance with Treasury Regulations Section 1.1445-2(c) and 1.897-2(h), certifying that DSAQ is not, and has not been at any time during the five (5) year period ending on the Closing Date, a U.S. real property holding corporation within the meaning of 897(c)(2) of the Code and the Treasury Regulations thereunder. After the Closing Date, DSAQ shall mail the notice referred to above to the IRS within the time frame provided in Treasury Regulations Section 1.897-2(h)(2)(v).

Section 7.07 Confidentiality; Access to Information; Publicity; Notification of Certain Matters.

(a) The Parties hereby acknowledge and agree that the information being provided in connection with this Agreement and the consummation of the Transactions is subject to the terms of the Confidentiality Agreement, the terms of which are hereby incorporated herein by reference mutatis mutandis and shall apply to such disclosures.

(b) From and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, upon reasonable advance written notice, the Blade Group shall provide, or cause to be provided, to DSAQ and its Representatives during normal business hours reasonable access to the directors, officers, books, records and properties of the Blade Group (in a manner so as to not interfere with the normal business operations of the Blade Group); provided, that such access shall not include any environmental sampling, monitoring, testing or other surface, subsurface or invasive investigation, assessment or analysis of soil, groundwater, building materials, air or other environmental media,

 

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and such access may be limited by PubCo in response to COVID-19 Measures to the extent reasonably necessary (i) to protect the health and safety of the managers, officers, directors, partners, members, equityholders, employees, advisors, consultants, agents or other Representatives, or customers, lessors, suppliers, vendors or other commercial partners of the Blade Group or (ii) in order to comply with any applicable COVID-19 Measures (provided, that, in case of each of clauses (i) and (ii), the Blade Group shall use reasonable best efforts to provide (x) such access as can reasonably be provided (or otherwise convey such information regarding the applicable matter as can reasonably be conveyed, including through remote communication) or (y) such information, in a manner without risking the health and safety of such Persons or violating such COVID-19 Measures). Notwithstanding the foregoing, the Blade Group shall not be required to provide to DSAQ or any of its Representatives any information (i) if and to the extent doing so would (A) violate any Law to which any member of the Blade Group is subject, (B) result in the disclosure of any trade secrets of third parties in breach of any Contract with such third party, (C) violate any legally binding obligation of the Blade Group with respect to confidentiality, nondisclosure or privacy or (D) jeopardize protections afforded to the Blade Group under the attorney-client privilege or the attorney work product doctrine (provided, that, in the case of each of clauses (A) through (D), the Blade Group shall use reasonable best efforts to provide (1) such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such privilege, doctrine, Contract, obligation or Law and (2) such information in a manner without violating such privilege, doctrine, Contract, obligation or Law) or (ii) if the Blade Group, on the one hand, and DSAQ or any of its Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto; provided, that PubCo shall, in the case of clause (i) or (ii), as promptly as practicable provide written notice of the withholding of access or information on any such basis unless such written notice is prohibited by applicable Law.

(c) From and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, upon reasonable advance written notice, DSAQ shall provide, or cause to be provided, to PubCo during normal business hours reasonable access to the directors, officers, books and records and properties of DSAQ (in a manner so as to not interfere with the normal business operations of DSAQ); provided, that such access may be limited by DSAQ, in response to COVID-19 Measures to the extent reasonably necessary (i) to protect the health and safety of DSAQ and its managers, officers, directors, partners, members, equityholders, employees, advisors, consultants, agents or other Representatives, or customers, lessors, suppliers, vendors or other commercial partners or (ii) in order to comply with any applicable COVID-19 Measures (provided, that in case of each of clauses (i) and (ii), DSAQ shall use reasonable best efforts to provide (i) such access as can reasonably be provided (or otherwise convey such information regarding the applicable matter as can reasonably be conveyed, including through remote communication) or (ii) such information, in a manner without risking the health and safety of such Persons or violating such COVID-19 Measures). Notwithstanding the foregoing, DSAQ shall not be required to provide to the Principal Shareholders, PubCo, the Blade Group or any of their respective Representatives any information (i) if and to the extent doing so would (A) violate any Law to which DSAQ is subject, (B) result in the disclosure of any trade secrets of third parties in breach of any Contract with such third party, (C) violate any legally binding obligation of DSAQ with respect to confidentiality, nondisclosure or privacy or (D) jeopardize protections afforded to DSAQ under the attorney-client privilege or the attorney work product doctrine (provided, that in the case of each of clauses (A)

 

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through (D), DSAQ shall use reasonable best efforts to provide (1) such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such privilege, doctrine, Contract, obligation or Law and (2) such information in a manner without violating such privilege, doctrine, Contract, obligation or Law) or (ii) if DSAQ, on the one hand, and any member of the Blade Group, any Principal Shareholder or any of their respective Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto; provided, that DSAQ shall, in the case of clause (i) or (ii), as promptly as practicable provide written notice of the withholding of access or information on any such basis unless such written notice is prohibited by applicable Law.

(d) None of the Parties or any of their respective Affiliates shall issue any press release or make any public announcement or other communication regarding this Agreement or the Transactions, or any matter related to the foregoing, without first obtaining the prior consent of, prior to the Closing, PubCo and DSAQ or, after the Closing, PubCo and Sponsor, as applicable (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that each Party, Sponsor and their respective Representatives may issue or make, as applicable, any such press release, public announcement or other communication (i) if such press release, public announcement or other communication is required by applicable Law, in which case, (A) prior to the Closing, the disclosing Party or its applicable Representatives shall, unless and to the extent prohibited by such applicable Law, (1) if the disclosing Person is DSAQ or a Representative of DSAQ, reasonably consult with PubCo in connection therewith and provide PubCo with an opportunity to review and comment on such press release, public announcement or communication and shall consider any such comments in good faith or (2) if the disclosing Party is a Principal Shareholder, any member of the Blade Group or any of their respective Representatives, reasonably consult with DSAQ in connection therewith and provide DSAQ with an opportunity to review and comment on such press release, public announcement or communication and shall consider any such comments in good faith or (B) after the Closing, the disclosing Party or its applicable Representatives shall, unless and to the extent prohibited by such applicable Law, (1) if the disclosing Person is Sponsor or a Representative of Sponsor, reasonably consult with PubCo in connection therewith and provide PubCo with an opportunity to review and comment on such press release, public announcement or communication and consider any such comments in good faith and (2) if the disclosing Person is a Principal Shareholder, PubCo or a Representative thereof, reasonably consult with Sponsor in connection therewith and provide Sponsor with an opportunity to review and comment on such press release, public announcement or communication and consider any such comments in good faith, (ii) to the extent such press release, public announcement or other communication contains only information previously disclosed in accordance with this Section 7.07(d) and (iii) to Governmental Authorities in connection with any consents required to be made under this Agreement, the other Transaction Documents or in connection with the Transactions; provided, further, that the DSAQ Board may issue or make, as applicable, any such press release, public announcement or other communication in connection with a DSAQ Change in Recommendation.

(e) The initial press release concerning this Agreement and the Transactions shall be a joint press release in the form agreed by PubCo and DSAQ prior to the execution of this Agreement and such initial press release (the “Signing Press Release”) shall be released as promptly as practicable after the execution of this Agreement on the day thereof or the first Business Day immediately thereafter. Promptly after the execution of this Agreement, DSAQ shall

 

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file a current report on Form 8-K (the “Signing Filing”) with the Signing Press Release and a description of this Agreement as required by, and in compliance with, the Securities Laws, which Signing Filing shall be mutually agreed upon by the Principal Shareholders and DSAQ. The Blade Group, on the one hand, and DSAQ, on the other hand, shall mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by either the Principal Shareholders or DSAQ, as applicable) a press release announcing the consummation of the Transactions (the “Closing Press Release”) prior to the Closing, and, on the Closing Date (or such other date as may be mutually agreed to in writing by DSAQ and PubCo prior to the Closing), the Parties shall cause the Closing Press Release to be released. Promptly after the Closing (but in any event within four (4) Business Days after the Closing), PubCo shall file a current report on Form 6-K or 20-F (the “Closing Filing”) with a description of the Closing as required by Securities Laws, which Closing Filing shall be mutually agreed upon by PubCo and DSAQ prior to the Closing (such agreement not to be unreasonably withheld, conditioned or delayed by either PubCo or DSAQ, as applicable). In connection with the preparation of each of the Signing Press Release, the Signing Filing, the Closing Press Release and the Closing Filing, each Party shall, upon written request by any other Party, furnish such other Party with all information concerning itself, its directors, officers and equityholders and such other matters as may be reasonably necessary for such press release or filing.

(f) The members of the Blade Group shall promptly notify DSAQ of: (i) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement and (ii) any breach of any covenant or agreement or the failure of any representation or warranty of a Principal Shareholder or a member of the Blade Group to be true and correct; provided, however, that no such notification or the failure to provide such notification shall in and of itself affect any of the representations, warranties, covenants, rights or remedies, or the conditions to the obligations of, the Parties hereunder or result, in and of itself, in the failure of a condition set forth in Article VIII.

(g) DSAQ shall promptly notify the Blade Group of: (i) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement and (ii) any breach of any covenant or agreement or the failure of any representation or warranty of DSAQ to be true and correct; provided, however, that no such notification or the failure to provide such notification shall in and of itself affect any of the representations, warranties, covenants, rights or remedies, or the conditions to the obligations of, the Parties hereunder or result, in and of itself, in the failure of a condition set forth in Article VIII.

Section 7.08 Post-Closing Cooperation; Further Assurances. Following the Closing, each Party shall, upon the request of any other Party, execute such further documents, and perform such further acts, as may be reasonably necessary or appropriate to give full effect to the allocation of rights, benefits, obligations and liabilities contemplated by this Agreement, the other Transaction Documents, the Transactions and the Hunch Reorganization.

Section 7.09 Extension. Following the date hereof, DSAQ shall, as necessary, use commercially reasonable efforts to prepare and file with the SEC a proxy statement (such proxy statement, together with any amendments or supplements to such proxy statement, the “Extension Proxy Statement”), pursuant to which it shall seek the approval of the holders of DSAQ Shares to

 

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amend DSAQ’s Governing Documents to extend the deadline by which DSAQ must complete a business combination in accordance with its Governing Documents as currently in effect (such date, the “Business Combination Deadline”) to June 28, 2024 or such other date as agreed to in writing by DSAQ and PubCo (an “Extension”). DSAQ shall use commercially reasonable efforts to cause the Extension Proxy Statement to be disseminated to holders of DSAQ Shares and convene and hold a meeting of such holders in accordance with DSAQ’s Governing Documents for purposes of approving such Extension.

ARTICLE VIII

CONDITIONS TO OBLIGATIONS

Section 8.01 Conditions to Obligations of the Parties. The obligations of the Parties to consummate the Transactions are subject to the satisfaction or, if permitted by applicable Law, waiver by the Party for whose benefit such condition exists of the following conditions:

(a) no Law or other legal restraint or prohibition issued by any court of competent jurisdiction or other Governmental Authority preventing the consummation of the Transactions shall be in effect;

(b) the Registration Statement/Proxy Statement shall have become effective in accordance with the provisions of the Securities Act, and no stop order shall have been issued by the SEC and remain in effect with respect to the Registration Statement/Proxy Statement;

(c) the Required DSAQ Stockholder Approval shall have been obtained;

(d) the PubCo Class A Ordinary Shares that constitute the DSAQ Share Consideration shall have been approved for listing on the Stock Exchange, subject only to notice of issuance;

(e) PubCo shall have entered into a composition agreement with the Revenue Commissioners of Ireland and a Special Eligibility Agreement for Securities with the Depository Trust Company in respect of PubCo Class A Ordinary Shares and, if the DSAQ Warrants are assumed pursuant to this Agreement, PubCo Warrants, both of which are in full force and effect and enforceable in accordance with their respective terms; and

(f) PubCo, Sponsor and the Principal Shareholders shall have executed the Registration Rights Agreement.

Section 8.02 Additional Conditions to the Obligations of PubCo, IndiaCo, Blade India and Merger Sub. The obligation of PubCo, IndiaCo, Blade India and Merger Sub to consummate the Transactions are subject to the satisfaction or, if permitted by applicable Law, waiver by PubCo of the following further conditions:

(a) (i) the DSAQ Fundamental Representations shall be true and correct in all material respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is expressly made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), (ii) the representations and warranties set forth in the first sentence of Section 4.04(a)

 

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shall be true and correct in all respects (except for de minimis inaccuracies) as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is expressly made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects (except for de minimis inaccuracies) as of such earlier date), (iii) the representation and warranty set forth in Section 4.15(a) shall be true and correct in all respects as of the Closing Date as though made on and as of the Closing Date and (iv) the other representations and warranties of DSAQ in Article IV (other than the DSAQ Fundamental Representations and the representations and warranties set forth in the first sentence of Section 4.04(a) and Section 4.15(a)) shall be true and correct (without giving effect to any limitations as to “materiality” or any similar limitation set forth herein) in all respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is expressly made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), except where the failure of such representations and warranties to be true and correct, individually and in the aggregate has not had a DSAQ Material Adverse Effect;

(b) the covenants and agreements of DSAQ contained in this Agreement to be performed prior to the Closing shall have been performed in all material respects;

(c) DSAQ shall have delivered, or caused to be delivered, to PubCo a certificate, duly executed by an authorized officer of DSAQ, dated as of the Closing Date, to the effect that the conditions specified in Section 8.02(a) and Section 8.02(b) are satisfied;

(d) the consummation of the Antara PIPE Investment, including, without limitation, the receipt of the proceeds of the Antara PIPE Investment by DSAQ; and

(e) immediately prior to the Closing, Antara shall be the beneficial owner of at least 955,100 DSAQ Class A Shares, and Antara will not have elected to have such DSAQ Class A Shares redeemed by DSAQ in connection with the Special Meeting.

Section 8.03 Additional Conditions to Obligations of DSAQ. The obligations of DSAQ to consummate the Transactions are subject to the satisfaction or, if permitted by applicable Law, waiver by DSAQ of the following further conditions:

(a) (i) the Blade Group Fundamental Representations shall be true and correct (without giving effect to any limitation as to “materiality” set forth therein) in all material respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is expressly made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), (ii) the representations and warranties set forth in the first and second sentences of Section 3.04(a) shall be true and correct in all respects (except for de minimis inaccuracies) as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is expressly made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects (except for de minimis inaccuracies) as of such earlier date), and (iii) the representations and warranties of the Blade Group, as applicable, set forth in Article III (other than the Blade Group Fundamental Representations and the representations and warranties set forth in the first and second sentences of Section 3.04(a)) shall

 

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be true and correct (without giving effect to any limitation as to “materiality” or “Blade Group Material Adverse Effect” or any similar limitation set forth herein) in all respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is expressly made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), except where the failure of such representations and warranties to be true and correct, individually and in the aggregate has not had a Blade Group Material Adverse Effect;

(b) the covenants and agreements of PubCo, IndiaCo, Blade India and Merger Sub contained in this Agreement to be performed prior to the Closing shall have been performed in all material respects;

(c) since the date of this Agreement, there shall not have been a Blade Group Material Adverse Effect;

(d) the Pre-Closing Reorganization shall have been completed;

(e) PubCo shall have delivered, or caused to be delivered, to DSAQ a certificate duly executed by an authorized officer of PubCo dated as of the Closing Date, to the effect that the conditions specified in Section 8.03(a), Section 8.03(b), Section 8.03(c) and Section 8.03(d) are satisfied; and

(f) the consummation of the Hunch PIPE Investment, including, without limitation, the receipt of the proceeds of the Hunch PIPE Investment by PubCo.

Section 8.04 Frustration of Conditions. No member of the Blade Group may rely on the failure of any condition set forth in this Article VIII to be satisfied if such failure was proximately caused by a member of the Blade Group’s failure to use reasonable best efforts to cause the Closing to occur, as required by Section 7.02, or another breach by any such Party of this Agreement. DSAQ may not rely on the failure of any condition set forth in this Article VIII to be satisfied if such failure was proximately caused by DSAQ’s failure to use reasonable best efforts to cause the Closing to occur, as required by Section 7.02, or another breach by DSAQ of this Agreement.

ARTICLE IX

TERMINATION

Section 9.01 Termination. This Agreement may be terminated and the Transactions may be abandoned at any time prior to the Closing:

(a) by mutual written consent of PubCo and DSAQ;

(b) by written notice to PubCo from DSAQ, if any of the representations or warranties set forth in Article III shall not be true and correct or if any member of the Blade Group have failed to perform any covenant or agreement on the part of any member of the Blade Group set forth in this Agreement (including an obligation to consummate the Closing) such that the condition to Closing set forth in either Section 8.03(a) or Section 8.03(b) would not be satisfied at the Closing and the breach or breaches causing such representations or warranties not to be true and correct, or the failures to perform any covenant or agreement, as applicable, is (or are) not cured or cannot be cured prior to the earlier of (i) thirty (30) days after written notice thereof is delivered to PubCo by DSAQ and (ii) the Termination Date; provided, however, that DSAQ is not then in material breach of this Agreement;

 

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(c) by written notice to DSAQ from PubCo, if any of the representations or warranties set forth in Article IV shall not be true and correct or if DSAQ has failed to perform any covenant or agreement on the part of DSAQ set forth in this Agreement (including an obligation to consummate the Closing) such that the condition to Closing set forth in either Section 8.02(a) or Section 8.02(b) would not be satisfied at the Closing and the breach or breaches causing such representations or warranties not to be true and correct, or the failures to perform any covenant or agreement, as applicable, is (or are) not cured or cannot be cured prior to the earlier of (i) thirty (30) days after written notice thereof is delivered to DSAQ and (ii) the Termination Date; provided, however, that no member of the Blade Group is then in material breach of this Agreement;

(d) by either DSAQ or PubCo, if the Transactions shall not have been consummated on or prior to March 28, 2024 (the “Termination Date”); provided, that the right to terminate this Agreement pursuant to this Section 9.01(d) shall not be available to (i) DSAQ if DSAQ’s breach of any of its covenants or obligations under this Agreement shall have been the primary cause of the failure to consummate the Transactions on or before the Termination Date or (ii) PubCo if the breach by any member of the Blade Group of any of their respective covenants or obligations under this Agreement shall have been the primary cause of the failure to consummate the Transactions on or before the Termination Date; provided, further, that if an Extension is obtained pursuant to Section 7.09, the Termination Date shall be automatically extended to the earlier of (I) June 28, 2024, and (II) the last date for DSAQ to consummate its business combination pursuant to such Extension;

(e) by either DSAQ or PubCo, if any Governmental Authority shall have issued a Governmental Order or taken any other action enjoining, restraining or otherwise prohibiting the Transactions and such Governmental Order or other action shall have become final and nonappealable; provided, that the right to terminate this Agreement pursuant to this Section 9.01(e) shall not be available to (i) DSAQ if DSAQ’s breach of any of its covenants or obligations under Section 7.02 shall have been the primary cause of the entry of such Governmental Order or (ii) PubCo if the breach by any member of the Blade Group of any of their respective covenants or obligations under Section 7.02 shall have been the primary cause of the entry of such Governmental Order; or

(f) by either DSAQ or PubCo, if the Special Meeting has been held (including any adjournment or postponement thereof) and has concluded, and the Pre-Closing DSAQ Holders have duly voted and the Required DSAQ Stockholder Approval was not obtained.

Section 9.02 Effect of Termination. Except as otherwise set forth in this Section 9.02 or Section 10.14, in the event of the termination of this Agreement pursuant to Section 9.01, this entire Agreement shall forthwith become void (and there shall be no Liability or obligation on the part of the Parties) with the exception of (a) Section 5.02 (No Claim Against the Trust Account), Section 7.07 (Confidentiality; Access to Information; Publicity), this Section 9.02 (Effect of Termination), Article X (Miscellaneous) and Section 1.01 (Definitions) (to the extent related to the foregoing), each of which shall survive such termination and remain valid and binding obligations of the Parties and (b) the Confidentiality Agreement, which shall survive such termination and remain valid and binding obligations of the parties thereto in accordance with its terms. Notwithstanding the foregoing or anything to the contrary herein, the termination of this Agreement pursuant to Section 9.01 shall not affect any Liability on the part of any Party for a Willful Breach of any covenant or agreement set forth in this Agreement prior to such termination or Actual Fraud with respect to the representations and warranties in Article III and Article IV.

 

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ARTICLE X

MISCELLANEOUS

Section 10.01 Waiver. No (a) extension of time for the performance of any of the obligations or other acts of a Party set forth herein may be granted or (b) provision of this Agreement may be waived, as applicable, unless such extension or waiver, as applicable, is in writing and signed by or on behalf of the Party or Parties granting such extension or waiver (which granting party shall be (i) DSAQ in the case of an extension or waiver granted to any other Party or (ii) PubCo in the case of an extension or waiver granted to DSAQ). Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement. The failure of DSAQ, on the one hand, or PubCo, on the other hand, to assert any of its rights hereunder shall not constitute a waiver of such rights.

Section 10.02 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given) by delivery in person, by email (having obtained electronic delivery confirmation thereof (i.e., an electronic record of the sender that the email was sent to the intended recipient thereof without an “error” or similar message that such email was not received by such intended recipient)), or by registered or certified mail (postage prepaid, return receipt requested) (upon receipt thereof) to the other Parties as follows:

 

  (a)

If to DSAQ:

5717 Legacy Drive, Suite 250

Plano, TX 75024

Attn: Ryan Bright

Email: jrb@directsellingcapital.com

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

Kirkland & Ellis LLP

2049 Century Park East, Suite 3700

Los Angeles, CA 90067

Attn: Dov Kogen

Email: dov.kogen@kirkland.com

Kirkland & Ellis LLP

601 Lexington Avenue

New York, NY 10022

Attn:    Christian O. Nagler, P.C.

            Peter S. Seligson, P.C.

            Marshall P. Shaffer, P.C.

 

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Email: cnagler@kirkland.com

            peter.seligson@kirkland.com

            marshall.shaffer@kirkland.com

 

  (b)

If to PubCo, Merger Sub, IndiaCo, Blade India or the Surviving SPAC:

5th Floor, The Circle, Millenium City Centre,

Gurugram Sec 29, Haryana 122002, India

Attn: Mr. Amit Dutta

Email: amit@flyblade.in

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

Ellenoff Grossman & Schole LLP

1345 Avenue of the Americas, 11th Floor

New York, NY 10105, U.S.A.

Attn:    Meredith Laitner, Esq.

            David H. Landau, Esq.

Facsimile No.: (212) 370-7889

Telephone No.: (212) 370-1300

E-mail: mlaitner@egsllp.com

             dlandau@egsllp.com

or to such other address or addresses as the Parties may from time to time designate in writing. Without limiting the foregoing, any Party may give any notice or other communication hereunder using any other means (including personal delivery, expedited courier, messenger service, ordinary mail or electronic mail), but no such notice or other communication shall be deemed to have been duly given unless and until it actually is received by the Party for whom it is intended.

Section 10.03 Assignment. No Party shall assign this Agreement or any part hereof without (a) in the case of any Party other than DSAQ, the prior written consent of DSAQ and (b) in the case of DSAQ, the prior written consent of PubCo, and any such assignment without such prior written consent shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.

Section 10.04 Rights of Third Parties. This Agreement shall be binding upon and inure solely to the benefit of each Party and its successors and permitted assigns and, except as provided in Section 5.03 and Section 5.04, the last two sentences of this Section 10.04, Section 10.15 and Section 10.16, nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement. Sponsor shall be an express third-party beneficiary of Section 7.01, Section 7.07(d) and Section 10.05. Legal counsel identified in Section 10.18 shall be express third-party beneficiaries of Section 10.18.

 

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Section 10.05 Expenses. Except as otherwise set forth in this Agreement, all fees and expenses incurred in connection with this Agreement, the other Transaction Documents, the Transactions and the Hunch Reorganization, including the fees and disbursements of counsel, financial advisors and accountants, shall be paid by the Party incurring such fees or expenses; provided, for the avoidance of doubt, that (a) if this Agreement is terminated in accordance with its terms, PubCo or the Principal Shareholders, as applicable, shall pay, or cause to be paid, all unpaid Blade Group Transaction Expenses and DSAQ shall pay, or cause to be paid, all unpaid DSAQ Transaction Expenses and (b) if the Closing occurs, then PubCo shall pay, or cause to be paid, all unpaid DSAQ Transaction Expenses and all unpaid Blade Group Transaction Expenses.

Section 10.06 Governing Law. This Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of, or relating to, any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement) or the Transactions, shall be governed by, and enforced in accordance with, the internal Laws of the State of Delaware, including its statutes of limitations, 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.

Section 10.07 Captions; Counterparts. The captions in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

Section 10.08 Exhibits and Schedules. All Exhibits and Schedules or documents expressly incorporated into this Agreement, are hereby incorporated into this Agreement and are hereby made a part hereof as if set out in full in this Agreement. The Schedules shall be arranged in Sections and subsections corresponding to the numbered and lettered Sections and subsections set forth in this Agreement. Any item disclosed in the Schedules corresponding to any Section or subsection of Article III (in the case of the Blade Group Disclosure Schedules) or Article IV (in the case of the DSAQ Disclosure Schedules) shall be deemed to have been disclosed with respect to every other Section and subsection of Article III (in the case of the Blade Group Disclosure Schedules) or Article IV (in the case of the DSAQ Disclosure Schedules), as applicable, where the relevance of such disclosure to such other Section or subsection is reasonably apparent on the face of the disclosure. The information and disclosures set forth in the Schedules that correspond to the section or subsections of Article III or Article IV may not be limited to matters required to be disclosed in the Schedules, and any such additional information or disclosure is for informational purposes only and does not necessarily include other matters of a similar nature.

Section 10.09 Entire Agreement. This Agreement (together with the Schedules and Exhibits to this Agreement), the other Transaction Documents and that certain Confidentiality Agreement, executed as of February 13, 2023, by and between DSAQ and Blade India (as amended, modified or supplemented from time to time, the “Confidentiality Agreement”), constitute the entire agreement among the Parties relating to the Transactions and supersede any other agreements, whether written or oral, that may have been made or entered into by or among any of the Parties or any of their respective Affiliates relating to the Transactions. No representations, warranties, covenants, understandings, agreements, oral or otherwise, relating to the Transactions exist between the Parties except as expressly set forth or referenced in this Agreement and the Confidentiality Agreement.

 

96


Section 10.10 Amendments. This Agreement may be amended or modified only by a written agreement executed and delivered by DSAQ, on the one hand, and PubCo and IndiaCo, on the other hand. This Agreement may not be modified or amended except as provided in the immediately preceding sentence and any purported amendment by any Party or Parties effected in a manner which does not comply with this Section 10.10 shall be void ab initio.

Section 10.11 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable Law, all other provisions of this Agreement shall remain in full force and effect so long as the economic or legal substance of the Transactions is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision of this Agreement is invalid, illegal or unenforceable under applicable Law, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the Transactions are consummated as originally contemplated to the greatest extent possible.

Section 10.12 Jurisdiction. Any Proceeding based upon, arising out of, or relating to, this Agreement or the Transactions must be brought in the Court of Chancery of the State of Delaware (or, to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), or, if it has or can acquire jurisdiction, in the United States District Court for the District of Delaware, and each of the Parties irrevocably (a) submits to the exclusive jurisdiction of each such court in any such Proceeding, (b) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum in such courts, (c) agrees that all claims in respect of the Proceeding shall be heard and determined only in any such court and (d) agrees not to bring any Proceeding based upon, arising out of or relating to, this Agreement or the Transactions in any other court. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by Law or to commence Proceedings or otherwise proceed against any other party in any other jurisdiction, in each case, to enforce judgments obtained in any Proceeding brought pursuant to this Section 10.12.

Section 10.13 Waiver of Jury Trial. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, PROCEEDING OR CAUSE OF ACTION BASED UPON, ARISING OUT OF, OR RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, PROCEEDING OR CAUSE OF ACTION 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

 

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OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.13.

Section 10.14 Enforcement. 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 obligations under the provisions of this Agreement (including failing to take such actions as are required of them hereunder to consummate the Transactions) or any other Transaction Document in accordance with its specified terms or otherwise breach such provisions. The Parties acknowledge and agree that (a) the Parties shall be entitled to an injunction, specific performance, or other equitable relief, to prevent breaches of this Agreement or any other Transaction Document and to enforce specifically the terms and provisions hereof and thereof, without proof of damages, prior to the valid termination of this Agreement in accordance with Section 9.01, this being in addition to any other remedy to which they are entitled under this Agreement or any other Transaction Document and (b) the right of specific enforcement is an integral part of the Transactions and without that right, none of the Parties would have entered into this Agreement. Each Party agrees that it shall not oppose the granting of specific performance and other equitable relief on the basis that the other Parties have an adequate remedy at Law or that an award of specific performance is not an appropriate remedy for any reason at Law or equity. The Parties acknowledge and agree that any Party seeking an injunction to prevent breaches of this Agreement or any other Transaction Document and to enforce specifically the terms and provisions of this Agreement or any other Transaction Document in accordance with this Section 10.14 shall not be required to provide any bond or other security in connection with any such injunction.

Section 10.15 Non-Recourse. Subject in all respects to the last sentence of this Section 10.15, this Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or relating to, this Agreement or the Transactions may only be brought against, the entities that are expressly named as Parties and then only with respect to the specific obligations set forth herein with respect to such Party. Except to the extent a Party (and then only to the extent of the specific obligations undertaken by such Party in this Agreement), (a) no past, present or future director, officer, employee, incorporator, member, partner, shareholder, Affiliate, agent, attorney, advisor or representative or Affiliate of any Party and (b) no past, present or future director, officer, employee, incorporator, member, partner, shareholder, Affiliate, agent, attorney, advisor or representative or Affiliate of any of the foregoing shall have any Liability (whether in contract, tort, equity or otherwise) for any of the representations, warranties, covenants, agreements or other obligations or liabilities of any Party under this Agreement of or for any claim based upon, arising out of, or relating to, this Agreement or the Transactions. Notwithstanding the foregoing, nothing in this Section 10.15 shall limit, amend or waive any rights or obligations of any party to any other Transaction Document with respect to the other parties thereto.

 

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Section 10.16 Nonsurvival of Representations, Warranties and Covenants. None of the representations, warranties, covenants, obligations or other agreements in this Agreement or in any certificate, statement or instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such representations, warranties, covenants, obligations, agreements or other provisions, shall survive the Closing, and all of the representations, warranties, covenants, obligations or other agreements in this Agreement or in any certificate, statement or instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such representations, warranties, covenants, obligations, agreements or other provisions, shall terminate and expire upon the occurrence of the Closing (and there shall be no Liability after the Closing in respect thereof), in each case, except for (a) those covenants and agreements contained herein that by their terms expressly apply in whole or in part at or after the Closing, and then only with respect to any breaches occurring at or after the Closing and (b) this Article X, which, in each case, shall surviving the Closing.

Section 10.17 Acknowledgements.

(a) Each of the Parties acknowledges and agrees (on its own behalf and on behalf of its respective Affiliates and its and their respective Representatives) that (i) it has conducted its own independent investigation of the financial condition, results of operations, assets, liabilities, properties and projected operations of the other Parties (and their respective Subsidiaries) and has been afforded satisfactory access to the books and records, facilities and personnel of the other Parties (and their respective Subsidiaries) for purposes of conducting such investigation, (ii) the representations and warranties of PubCo, IndiaCo, Blade India and Merger Sub in Article III constitute the sole and exclusive representations and warranties of the Principal Shareholders, PubCo, IndiaCo, Blade India and Merger Sub in connection with the Transactions, (iii) the representations and warranties of DSAQ in Article IV constitute the sole and exclusive representations and warranties of DSAQ in connection with the Transactions, (iv) except for the representations and warranties of the Principal Shareholders, PubCo, IndiaCo, Blade India and Merger Sub in Article III and the representations and warranties of DSAQ in Article IV, none of the Parties or any other Person makes, or has made, any other express or implied representation or warranty with respect to any Party (or any Party’s Subsidiaries), including any implied warranty or representation as to condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of such Party or its Subsidiaries or the Transactions and all other representations and warranties of any kind or nature expressed or implied (including (A) regarding the completeness or accuracy of, or any omission to state or to disclose, any information, including in the estimates, projections or forecasts or any other information, document or material provided to or made available to any Party or their respective Affiliates or Representatives in certain “data rooms,” management presentations or in any other form in expectation of the Transactions, including meetings, calls or correspondence with management of any Party (or any Party’s Subsidiaries) and (B) relating to the future or historical business, condition (financial or otherwise), results of operations, prospects, assets or liabilities of any Party (or its Subsidiaries), or the quality, quantity or condition of any Party’s or its Subsidiaries’ assets) are specifically disclaimed by all Parties and their respective Subsidiaries and all other Persons (including the Representatives and Affiliates of any Party or its Subsidiaries) and (v) each Party and its respective Affiliates are not relying on any representations and warranties in connection with the Transactions except the representations and warranties of PubCo, IndiaCo, Blade India and Merger Sub in Article III and the representations and warranties of DSAQ in Article IV. Except as otherwise expressly set forth in this Agreement, DSAQ understands and agrees that any assets, properties and business of the Blade Group are furnished “as is,” “where is” and subject to and except for the representations and warranties of PubCo, IndiaCo, Blade India and Merger Sub in Article III or as provided in any certificate delivered in accordance with Section 8.03(e) with all faults and without any other representation or warranty of any nature whatsoever. Nothing in this Section 10.17(a) shall relieve any Party of liability in the case of Actual Fraud committed by such Party.

 

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(b) The Blade Group acknowledge that any restatement, revision or other modification of the DSAQ SEC Reports or Additional DSAQ SEC Reports in connection with the review of any agreements, orders, comments or other guidance from the staff of the SEC, whether made prior to or following the date of this Agreement, regarding the accounting policies of DSAQ included in any DSAQ SEC Report or Additional DSAQ SEC Report shall be deemed not material for purposes of this Agreement.

(c) Effective upon Closing, each of the Parties waives, on its own behalf and on behalf of its respective Affiliates and Representatives, to the fullest extent permitted under applicable Law, any and all rights, Proceedings and causes of action it may have against any other Party or their respective Subsidiaries and any of their respective current or former Affiliates or Representatives relating to the operation of any Party or its Subsidiaries or their respective businesses prior to the Closing or relating to the subject matter of this Agreement, the Schedules or the Exhibits to this Agreement, whether arising under or based upon any federal, state, local or foreign Law or otherwise. Each Party acknowledges and agrees that it shall not assert, institute or maintain any Proceeding of any kind whatsoever, including a counterclaim, cross-claim, or defense, regardless of the legal or equitable theory under which such liability or obligation may be sought to be imposed, that makes any claim contrary to the agreements and covenants set forth in this Section 10.17. Notwithstanding anything herein to the contrary, nothing in this Section 10.17(c) shall preclude any Party from seeking any remedy for Actual Fraud by a Party solely and exclusively with respect to the making of any representation or warranty by it in Article III or Article IV (as applicable). Each Party shall have the right to enforce this Section 10.17 on behalf of any Person that would be benefitted or protected by this Section 10.17 if they were a party hereto. The foregoing agreements, acknowledgements, disclaimers and waivers are irrevocable. For the avoidance of doubt, nothing in this Section 10.17 shall limit, modify, restrict or operate as a waiver with respect to, any rights any Party may have under any written agreement entered into in connection with the transactions that are contemplated by this Agreement, including any other Transaction Document.

Section 10.18 Conflicts and Privilege.

(a) The Parties acknowledge and agree, on behalf of their respective successors and assigns (including, after the Closing, the Surviving SPAC), that, in the event a dispute with respect to this Agreement, the Transactions or the Hunch Reorganization arises after the Closing between or among (i) Sponsor, the former shareholders or holders of other equity interests of DSAQ or stockholders or holders of other equity interests of Sponsor and/or any of the foregoing persons respective directors, members, partners, officers, employees or Affiliates (other than the Principal Shareholder or the Blade Group) (collectively, the “DSAQ Group”), on the one hand, and (ii) PubCo and/or any member of the Principal Shareholder Group, on the other hand, any legal counsel, including Kirkland & Ellis LLP (“Kirkland”), that represented DSAQ and/or Sponsor prior to the Closing may represent Sponsor and/or any member of the DSAQ Group in such dispute even though the interests of such Persons may be directly adverse to PubCo or the Surviving SPAC, and even though such counsel may have represented PubCo and/or the Surviving SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for

 

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PubCo or the Surviving SPAC and/or the Sponsor. The Parties, on behalf of their respective successors and assigns (including, after the Closing, the Surviving SPAC), further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Proceeding based upon, arising out of, or relating to, this Agreement, any other Transaction Document, the Transactions or the Hunch Reorganization) between or among Sponsor and/or any other member of the DSAQ Group, on the one hand, and Kirkland, on the other hand (the “Kirkland Privileged Communications”), the attorney/client privilege and the expectation of client confidence shall survive the Transactions and belong to the DSAQ Group after the Closing, and shall not pass to or be claimed or controlled by PubCo. Notwithstanding the foregoing, any privileged communications or information shared by PubCo prior to the Closing with DSAQ or Sponsor under a common interest agreement shall remain the privileged communications or information of PubCo. PubCo, together with any of its Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Kirkland Privileged Communications, whether located in the records or email server of PubCo, the Surviving SPAC or their respective Subsidiaries, in any Proceeding against or involving any of the Parties after the Closing, and PubCo agree not to assert that any privilege has been waived as to the Kirkland Privileged Communications, by virtue of the Transactions.

(b) The Parties acknowledge and agree, on behalf of their respective successors and assigns (including, after the Closing, the Surviving SPAC), that, in the event a dispute with respect to this Agreement, the Transactions or the Hunch Reorganization arises after the Closing between or among (i) the Principal Shareholders, the former shareholders or holders of other equity interests of the Principal Shareholders and/or any of the foregoing persons respective directors, members, partners, officers, employees or Affiliates (other than the Blade Group) (collectively, the “Principal Shareholder Group”), on the one hand, and (ii) the Blade Group and/or any member of the DSAQ Group, on the other hand, any legal counsel, including Ellenoff Grossman & Schole LLP (“Ellenoff”) that represented the Blade Group or the Principal Shareholders prior to the Closing may represent any member of the Principal Shareholder Group in such dispute even though the interests of such Persons may be directly adverse to the Blade Group, and even though such counsel may have represented PubCo in a matter substantially related to such dispute, or may be handling ongoing matters for PubCo. The Parties, on behalf of their respective successors and assigns (including, after the Closing, the Surviving SPAC), further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Proceeding based upon, arising out of, or relating to, this Agreement, any other Transaction Document, the Transactions or the Hunch Reorganization) between or among the Principal Shareholder and/or the Blade Group and/or any other member of the Principal Shareholder Group, on the one hand, and Ellenoff, on the other hand (the “Ellenoff Privileged Communications”), the attorney/client privilege and the expectation of client confidence shall survive the Transactions and belong to the Principal Shareholder Group after the Closing, and shall not pass to or be claimed or controlled by PubCo. Notwithstanding the foregoing, any privileged communications or information shared by DSAQ prior to the Closing with PubCo under a common interest agreement shall remain the privileged communications or information of DSAQ. PubCo, together with any of its Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Ellenoff Privileged Communications, whether located in the records or email server of PubCo, the Surviving SPAC or their respective Subsidiaries, in any Proceeding against or involving any of the Parties after the Closing, and PubCo agrees not to assert that any privilege has been waived as to the Ellenoff Privileged Communications, by virtue of the Transactions.

[Signature pages follow]

 

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IN WITNESS WHEREOF, the Parties hereto have hereunto caused this Business Combination Agreement to be duly executed as of the date hereof.

 

DIRECT SELLING ACQUISITION CORP.
By:   /s/ Dave Wentz
  Name: Dave Wentz
  Title: Chief Executive Officer
AEROFLOW URBAN AIR MOBILITY PRIVATE LIMITED
By:   /s/ Vikram Singh
  Name: Vikram Singh
  Title: Director

HUNCH TECHNOLOGIES LIMITED

By:   /s/ Amit Dutta
  Name: Amit Dutta
  Title: Director

FLYBLADE (INDIA) PRIVATE LIMITED

By:   /s/ Brig Rajeev Varma
  Name: Brig Rajeev Varma
  Title: Director
HTL MERGER SUB LLC
By:   /s/ Amit Dutta
  Name: Amit Dutta
  Title: President

 

 

[Signature Page to Business Combination Agreement]


EXHIBIT A

FORM OF PRINCIPAL SHAREHOLDER SUPPORT AGREEMENT

[intentionally omitted]

 

A-1


EXHIBIT B

FORM OF SPONSOR SUPPORT AGREEMENT

[intentionally omitted]

 

B-1


EXHIBIT C

PRE-CLOSING REORGANIZATION

 

1.

Transhermes shall obtain as promptly as reasonably practicable the following governmental and regulatory consents in connection with the sale of entire shareholding of Transhermes to IndiaCo:

 

  (a)

approval for change of constitution / shareholding of Transhermes from the jurisdictional approval committee under the Special Economic Zones Act, 2005 read with the Special Economic Zones Rules, 2006; and

 

  (b)

approval from the International Financial Services Centres Authority under the Financial Services Centres Authority Act, 2019 read with the International Financial Services Centres Authority (Finance Company) Regulations, 2021.

 

2.

Upon obtaining the governmental regulatory consents set out above in (1):

 

  (a)

Blade India shall immediately transfer, and procure the transfer of, all of the outstanding Equity Securities of Transhermes free and clear of any and all Liens, and together with all rights, title and interest attached thereto, to IndiaCo (and its nominee, it being clarified that the nominee shall hold such minimum number of shares of Transhermes as required for complying with the minimum shareholders requirement under (Indian) Companies Act 2013; provided that any share held by such nominee shall be in the name of IndiaCo as the beneficial owner in accordance with (Indian) Companies Act 2013) in exchange for an amount equal to the Share Acquisition Consideration;

 

  (b)

PubCo and Blade India shall execute such documents as may be required by Airbus Helicopters, and PubCo shall transfer to Airbus Helicopters an amount of $260,000 being equal to the payments made by Blade India on behalf of Transhermes to Airbus Helicopters under purchase order purchase order #125-2214 placed with Airbus Helicopters for purchase of 5 H125 and 10 optional H125 helicopters, so that Airbus Helicopters may refund the advance amount paid by Blade India (on behalf of Transhermes); and

 

  (c)

IndiaCo shall transfer to Blade India an amount of $20,000 being equal to the expenses incurred by Blade India on behalf of Transhermes towards corporate-secretarial services and payment of annual fee to the International Financial Services Centres Authority and other compliance, contractual related expenses and requisite tax amounts thereof.

 

3.

Immediately upon the completion of transfer of all the Equity Securities of Transhermes from Blade India to IndiaCo as contemplated in (2) above, (a) if the time frame has expired with respect to the passing of a shareholders’ resolution for approving the voluntary liquidation/winding up of Blade India from the date of the initial resolutions of the board of directors with respect thereto (as noted in the Recitals to this Agreement), then Blade India’s board of directors shall pass another resolution approving the voluntary liquidation/winding

 

C-1


  up of Blade India in accordance with applicable Law; (b) Blade India’s shareholders shall pass a resolution approving the voluntary liquidation/winding up of Blade India in accordance with applicable Law; and (c) Blade India shall promptly undertake any and all other steps necessary to complete its voluntary liquidation/winding-up process in accordance with applicable Law, provided however that the completion of liquidation/voluntary winding-up of Blade India shall not be a condition of Closing.

 

4.

PubCo shall consummate a reverse stock split. At the effective time of the reverse stock split, the issued and unissued PubCo Ordinary Shares shall be automatically consolidated in a manner such that the total number of issued and outstanding PubCo Class A Ordinary Shares and PubCo Class B Ordinary Shares (excluding Equity Securities issued or issuable pursuant to the Bridge Investment), on a fully-diluted, as converted and as exercised basis, will be equal to the Pre-Closing Reorganization Consideration and will be owned in the proportions set forth on the PubCo Closing Statement.

 

C-2


EXHIBIT D

FORM OF PUBCO NEW ARTICLES OF ASSOCIATION

Companies Act 2014

PUBLIC LIMITED COMPANY

CONSTITUTION

OF

HUNCH TECHNOLOGIES LIMITED

MEMORANDUM OF ASSOCIATION

 

1.

The name of the Company is Hunch Technologies Limited.

 

2.

The Company is a public limited company, registered under Part 17 of the Companies Act 2014.

 

3.

The objects for which the Company is established are:

 

  3.1

To carry on the business of a holding company and to co-ordinate the administration, finances and activities of any subsidiary companies or associated companies, to do all lawful acts and things whatever that are necessary or convenient in carrying on the business of such a holding company and in particular to carry on in all its branches the business of a management services company, to act as managers and to direct or coordinate the management of other companies or of the business, property and estates of any company or person and to undertake and carry out all such services in connection therewith as may be deemed expedient by the Company’s board of directors and to exercise its powers as a shareholder of other companies.

 

  3.2

To carry on the businesses of manufacturer, distributor, wholesaler, retailer, service provider, investor, designer, trader and any other business (except the issuing of policies of insurance) which may seem to the Company’s board of directors capable of being conveniently carried on in connection with these objects or calculated directly or indirectly to enhance the value of or render more profitable any of the Company’s property.

 

  3.3

To carry on all or any of the businesses as aforesaid either as a separate business or as the principal business of the Company.

 

  3.4

To invest and deal with the property of the Company in such manner as may from time to time be determined by the Company’s board of directors and to dispose of or vary such investments and dealings.

 

  3.5

To borrow or raise money or capital in any manner and on such terms and subject to such conditions and for such purposes as the Company’s board of directors shall think fit or expedient, whether alone or jointly and/or severally with any other person or company, including, without prejudice to the generality of the foregoing, whether by the issue of debentures or debenture stock (perpetual or otherwise) or otherwise, and to secure, with or without consideration, the payment or repayment of any money borrowed, raised or owing or any debt, obligation or liability of the Company or of any other person or company

 

D-1


  whatsoever in such manner and on such terms and conditions as the Company’s board of directors shall think fit or expedient and, in particular by mortgage, charge, lien, pledge or debenture or any other security of whatsoever nature or howsoever described, perpetual or otherwise, charged upon all or any of the Company’s property, both present and future, and to purchase, redeem or pay off any such securities or borrowings and also to accept capital contributions from any person or company in any manner and on such terms and conditions and for such purposes as the Company’s board of directors shall think fit or expedient.

 

  3.6

To lend and advance money or other property or give credit or financial accommodation to any company or person in any manner either with or without security and whether with or without the payment of interest and upon such terms and conditions as the Company’s board of directors shall think fit or expedient.

 

  3.7

To guarantee, indemnify, grant indemnities in respect of, enter into any suretyship or joint obligation, or otherwise support or secure, whether by personal covenant, indemnity or undertaking or by mortgaging, charging, pledging or granting a lien or other security over all or any part of the Company’s property (both present and future) or by any one or more of such methods or any other method and whether in support of such guarantee or indemnity or suretyship or joint obligation or otherwise, on such terms and conditions as the Company’s board of directors shall think fit, the payment of any debts or the performance or discharge of any contract, obligation or liability of any person or company (including, without prejudice to the generality of the foregoing, the payment of any capital, principal, dividends or interest on any stocks, shares, debentures, debenture stock, notes, bonds or other securities of any person, authority or company) including, without prejudice to the generality of the foregoing, any company which is for the time being the Company’s holding company or another subsidiary (as defined by the Act) of the Company’s holding company or a subsidiary of the Company or otherwise associated with the Company (including any arrangements of the Company or any of its subsidiaries), in each case notwithstanding the fact that the Company may not receive any consideration, advantage or benefit, direct or indirect, from entering into any such guarantee or indemnity or suretyship or joint obligation or other arrangement or transaction contemplated herein.

 

  3.8

To grant, convey, assign, transfer, exchange or otherwise alienate or dispose of any property of the Company of whatever nature or tenure for such price, consideration, sum or other return whether equal to or less than the market value thereof or for shares, debentures or securities and whether by way of gift or otherwise as the Company’s board of directors shall deem fit or expedient and where the property consists of real property to grant any fee farm grant or lease or to enter into any agreement for letting or hire of any such property for a rent or return equal to or less than the market or rack rent therefor or at no rent and subject to or free from covenants and restrictions as the Company’s board of directors shall deem appropriate.

 

  3.9

To purchase, take on, lease, exchange, rent, hire or otherwise acquire any property and to acquire and undertake the whole or any part of the business and property of any company or person.

 

  3.10

To develop and turn to account any land acquired by the Company or in which it is interested and in particular by laying out and preparing the same for building purposes, constructing, altering, pulling down, decorating, maintaining, fitting out and improving buildings and conveniences and by planting, paving, draining, farming, cultivating, letting and by entering into building leases or building agreements and by advancing money to and entering into contracts and arrangements of all kinds with builders, contractors, architects, surveyors, purchasers, vendors, tenants and any other person.

 

D-2


  3.11

To construct, improve, maintain, develop, work, manage, carry out or control any property which may seem calculated directly or indirectly to advance the Company’s interest and to contribute to, subsidise or otherwise assist or take part in the construction, improvement, maintenance, working, management, carrying out or control thereof.

 

  3.12

To draw, make, accept, endorse, discount, execute and issue promissory notes, bills of exchange, bills of lading, warrants, debentures and other negotiable or transferable instruments.

 

  3.13

To engage in currency exchange, interest rate and commodity transactions including, but not limited to, dealings in foreign currency, spot and forward rate exchange contracts, futures, options, forward rate agreements, swaps, caps, floors, collars and any other foreign exchange, interest rate or commodity hedging arrangements and such other instruments as are similar to, or derived from, any of the foregoing whether for the purpose of making a profit or avoiding a loss or managing a currency, interest rate or commodity exposure or any other exposure or for any other purpose.

 

  3.14

As a pursuit in itself or otherwise and whether for the purpose of making a profit or avoiding a loss or managing a currency, interest rate or commodity exposure or any other exposure or for any other purpose whatsoever, to engage in any currency exchange transactions, interest rate transactions and commodity transactions, derivative and/or treasury transactions and any other financial or other transactions, including (without prejudice to the generality of the foregoing) securitisation, treasury and/or structured finance transactions, of whatever nature in any manner and on any terms and for any purposes whatsoever, including, without prejudice to the generality of the foregoing, any transaction entered into in connection with or for the purpose of, or capable of being for the purposes of, avoiding, reducing, minimising, hedging against or otherwise managing the risk of any loss, cost, expense, or liability arising, or which may arise, directly or indirectly, from a change or changes in any interest rate or currency exchange rate or in the price or value of any property, asset, commodity, index or liability or from any other risk or factor affecting the Company’s business, including but not limited to dealings whether involving purchases, sales or otherwise in foreign currency, spot and/or forward rate exchange contracts, futures, options, forward rate agreements, swaps, caps, floors, collars and/or any such other currency or interest rate or commodity or other hedging, treasury or structured finance arrangements and such other instruments as are similar to, or derived from any of the foregoing.

 

  3.15

To apply for, establish, create, purchase or otherwise acquire, sell or otherwise dispose of and hold any patents, trade marks, copyrights, brevets d’invention, registered designs, licences, concessions and the like conferring any exclusive or non-exclusive or limited rights to use or any secret or other information and any invention and to use, exercise, develop or grant licences in respect of or otherwise turn to account or exploit the property, rights or information so held.

 

  3.16

To enter into any arrangements with any governments or authorities, national, local or otherwise and to obtain from any such government or authority any rights, privileges and concessions and to carry out, exercise and comply with any such arrangements, rights, privileges and concessions.

 

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3.17

To establish, form, register, incorporate or promote any company or companies or person, whether inside or outside of Ireland.

 

3.18

To procure that the Company be registered or recognised whether as a branch or otherwise in any country or place.

 

3.19

To enter into partnership or into any arrangement for sharing profits, union of interests, co-operation, joint venture, reciprocal concession or otherwise with any person or company carrying on or engaged in or about to carry on or engage in any business or transaction and to engage in any transaction in connection with the foregoing.

 

3.20

To acquire or amalgamate with any other company or person.

 

3.21

To acquire and undertake the whole or any part of the business, good-will and assets of any person, firm or company carrying on or proposing to carry on any of the businesses which this Company is authorised to carry on, and as part of the consideration for such acquisition to undertake all or any of the liabilities of such person, firm or company, or to acquire an interest in, amalgamate with, or enter into any arrangement for sharing profits, or for co-operation, or for mutual assistance with any such person, firm or company and to give or accept by way of consideration for any of the acts or things aforesaid or property acquired, any shares, debentures, debenture stock or securities that may be agreed upon, and to hold and retain or sell, mortgage or deal with any shares, debentures, debenture stock or securities so received.

 

3.22

To promote freedom of contract, and to resist, insure against, counteract and discourage interference therewith, to join any lawful federation, union or association, or do any other lawful act or thing with a view to preventing or resisting directly or indirectly any interruption of or interference with the Company’s or any other trade or business or providing or safeguarding against the same, or resisting or opposing any strike, movement or organisation which may be thought detrimental to the interests of the Company or its employees and to subscribe to any association or fund for any such purposes.

 

3.23

To make gifts to any person or company including, without prejudice to the generality of the foregoing, capital contributions and to grant bonuses to the directors or any other persons or companies who are or have been in the employment of the Company including substitute directors and any other officer or employee.

 

3.24

To establish and support or aid in the establishment and support of associations, institutions, funds, trusts and conveniences calculated to benefit directors, ex-directors, employees or ex-employees of the Company or any subsidiary of the Company or the dependants or connections of such persons, and to grant pensions and allowances upon such terms and in such manner as the Company’s board of directors think fit, and to make payments towards insurance and to subscribe or guarantee money for charitable or benevolent objects or for any exhibition or for any public, general or useful object, or any other object whatsoever which the Company’s board of directors may think advisable.

 

3.25

To establish and contribute to any scheme for the purchase of shares or subscription for shares in the Company, its holding company or any of its or their respective subsidiaries, to be held for the benefit of the employees or former employees of the Company or any subsidiary of the Company including any person who is or was a director holding a salaried employment or office in the Company or any subsidiary of the Company and to lend or otherwise provide money to the trustees of such schemes or the employees or former

 

D-4


  employees of the Company or any subsidiary of the Company to enable them to purchase shares of the Company, its holding company or any of its or their respective subsidiaries and to formulate and carry into effect any scheme for sharing the profits of the Company, its holding company or any of its or their respective subsidiaries with its employees and/or the employees of any of its subsidiaries.

 

3.26

To remunerate any person or company for services rendered or to be rendered in placing or assisting to place or guaranteeing the placing of any of the shares of the Company’s capital or any debentures, debenture stock or other securities of the Company or in or about the formation or promotion of the Company or the conduct of its business.

 

3.27

To obtain any Act of the Oireachtas or provisional order for enabling the Company to carry any of its objects into effect or for effecting any modification of the Company’s constitution or for any other purpose which may seem expedient and to oppose any proceedings or applications which may seem calculated directly or indirectly to prejudice the Company’s interests.

 

3.28

To adopt such means of making known the products of the Company as may seem expedient and in particular by advertising in the press, by circulars, by purchase and exhibition of works of art or interest, by publication of books and periodicals and by granting prizes, rewards and donations.

 

3.29

To undertake and execute the office of trustee and nominee for the purpose of holding and dealing with any property of any kind for or on behalf of any person or company; to act as trustee, nominee, agent, executor, administrator, registrar, secretary, committee or attorney generally for any purpose and either solely or with others for any person or company; to vest any property in any person or company with or without any declared trust in favour of the Company.

 

3.30

To pay all costs, charges, fees and expenses incurred or sustained in or about the promotion, establishment, formation and registration of the Company.

 

3.31

To do all or any of the above things in any part of the world, and as principals, agents, contractors, trustees or otherwise and by or through trustees, agents or otherwise and either alone or in conjunction with any person or company.

 

3.32

To distribute the property of the Company in specie among the members or, if there is only one, to the sole member of the Company.

 

3.33

To do all such other things as the Company’s board of directors may think incidental or conducive to the attainment of the above objects or any of them.

NOTE: it is hereby declared that in this memorandum of association:

 

  (a)

the word “company”, except where used in reference to this Company, shall be deemed to include a body corporate, whether a company (wherever formed, registered or incorporated), a corporation aggregate, a corporation sole and a national or local government or other legal entity; and

 

  (b)

the word “person”, shall be deemed to include any individual, firm, body corporate, association or partnership, government or state or agency of a state, local authority or government body or any joint venture association or partnership (whether or not having a separate legal personality) and that person’s personal representatives, successors or permitted assigns; and

 

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  (c)

the word “property”, shall be deemed to include, where the context permits, real property, personal property including choses or things in action and all other intangible property and money and all estates, rights, titles and interests therein and includes the Company’s uncalled capital and future calls and all and every other undertaking and asset; and

 

  (d)

a word or expression used in this memorandum of association which is not otherwise defined and which is also used in the Companies Act 2014 shall have the same meaning here, as it has in the Companies Act 2014; and

 

  (e)

any phrase introduced by the terms “including”, “include” and “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms, whether or not followed by the phrases “but not limited to”, “without prejudice to the generality of the foregoing” or any similar expression; and

 

  (f)

words denoting the singular number only shall include the plural number and vice versa and references to one gender includes all genders; and

 

  (g)

it is intended that the objects specified in each paragraph in this clause shall, except where otherwise expressed in such paragraph, be separate and distinct objects of the Company and shall not be in any way limited or restricted by reference to or inference from the terms of any other paragraph or the order in which the paragraphs of this clause occur or the name of the Company.

 

4.

The liability of the members is limited.

 

5.

The authorised share capital of the Company is US$[ • ] divided into [ • ] A Ordinary Shares with a nominal value of US$0.0001 each, [ • ] B Ordinary Shares with a nominal value of US$0.0001] each, [ • ] Preferred Shares with a nominal value of US$0.0001 each, [ • ] Convertible Preferred Shares with a nominal value of US$0.0001 each and €[ • ] divided into [ • ] Deferred Shares with a nominal value of €1.00 each.

 

6.

The shares forming the capital may be increased or reduced and be divided into such classes and issued with any special rights, privileges and conditions or with such qualifications as regards preference, dividend, capital, voting or other special incidents, and be held upon such terms as may be attached thereto or as may from time to time be provided by the original or any substituted or amended articles of association and regulations of the Company for the time being, but so that where shares are issued with any preferential or special rights attached thereto such rights shall not be alterable otherwise than pursuant to the provisions of the Company’s articles of association for the time being.

 

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HUNCH TECHNOLOGIES LIMITED

ARTICLES OF ASSOCIATION

(as amended by Special Resolution dated [ • ] 2024)

Interpretation and general

 

1.

Sections 83, 84 and 117(9) of the Act shall apply to the Company but, subject to that, the provisions set out in these Articles shall constitute the whole of the regulations applicable to the Company and no other “optional provisions” as defined by section 1007(2) of the Act shall apply to the Company.

 

2.

In these Articles:

 

  2.1

A Ordinary Shares” means the A Ordinary Shares with a nominal value of US$0.0001 each in the capital of the Company;

 

  2.2

Act” means the Companies Act 2014 and every statutory modification and re-enactment thereof for the time being in force;

 

  2.3

Acting in Concert” has the meaning given to it in Rule 2.1(a) and Rule 3.3 of Part A of the Takeover Rules;

 

  2.4

Adoption Date” means the effective date of adoption of these Articles, being [ • ];

 

  2.5

Adjourned Meeting” has the meaning given in Article 130.1;

 

  2.6

Affiliate” means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, a specified Person;

 

  2.7

Agent” has the meaning given in Article 27.3;

 

  2.8

Approved Nominee” means a person appointed under contractual arrangements with the Company to hold shares or rights or interests in shares of the Company on a nominee basis;

 

  2.9

Article” means an article of these Articles;

 

  2.10

Articles” means these articles of association as from time to time and for the time being in force;

 

  2.11

as converted basis” means assuming the theoretical conversion of all outstanding Convertible Preferred Shares into A Ordinary Shares, at the then applicable Conversion Rate;

 

  2.12

Auditors” means the auditors for the time being of the Company;

 

  2.13

BCA” means the business combination agreement, dated as of December [•] 2023, by and among Direct Selling Acquisition Corp., Aeroflow Urban Air Mobility Private Limited, FlyBlade India, HTL Merger Sub LLC and the Company;

 

  2.14

B Ordinary Shares” means the B Ordinary Shares with a nominal value of US$0.0001 each in the capital of the Company;

 

D-7


  2.15

Board” means the board of Directors of the Company;

 

  2.16

Business Day” means a day (other than a Saturday or a Sunday or public holiday in Ireland or New York) on which clearing banks are open to the general public for business in Dublin or New York;

 

  2.17

Chairperson” means the person occupying the position of Chairperson of the Board from time to time;

 

  2.18

Chief Executive Officer” shall include any equivalent office;

 

  2.19

Clear Days” means, in relation to a period of notice, that period excluding the day when the notice is given or deemed to be given and excluding the day for which notice is being given or on which an action or event for which notice is being given is to occur or take effect;

 

  2.20

committee” has the meaning given in Article 202;

 

  2.21

Company” means the company whose name appears in the heading to these Articles;

 

  2.22

Company Change of Control” occurs if Quick Response Services Provider LLP, acting together with its Affiliates, ceases to hold more than 50% (fifty per cent) of the voting power represented by the voting shares in the Company;

 

  2.23

Company Secretary” means the person or persons appointed as company secretary or joint company secretary of the Company from time to time and shall include any assistant or deputy secretary;

 

  2.24

Concert Party” means, in relation to any person, a party who is deemed or presumed to be Acting in Concert with that person for the purposes of the Takeover Rules;

 

  2.25

contested election” has the meaning given in Article 174;

 

  2.26

Conversion Date” has the meaning given to such term under Article 26.10;

 

  2.27

Conversion Rate” means (A + B) ÷ C

Where:

A = USD10.00 per Convertible Preferred Share;

B = all unpaid arrears and accruals (if any) of the Preferred Dividend in respect of such Convertible Preferred Share whether or not such Preferred Dividends have been declared or become due and payable to be calculated down to and including the Conversion Date; and

C = USD12.00,

as adjusted from time to time as provided in sub-Articles 26.18 or 26.19;

 

  2.28

Convertible Preferred Shares” means the 10% (ten per cent) Convertible Preferred Shares of USD[•], each;

 

D-8


  2.29

CVR” means a contingent value right;

 

  2.30

Deferred Shares” means the Deferred Shares with a nominal value of €1.00 each in the capital of the Company;

 

  2.31

Directors” means the directors for the time being of the Company or any of them acting as the Board;

 

  2.32

Director’s Certified Email Address” has the meaning given in Article 205.3;

 

  2.33

disponee” has the meaning given in Article 61.1;

 

  2.34

elected by a plurality” has the meaning given in Article 174;

 

  2.35

electronic communication” has the meaning given to that word in the Electronic Commerce Act 2000 and in addition includes in the case of notices or documents issued on behalf of the Company, such documents being made available or displayed on a website of the Company (or a website designated by the Board);

 

  2.36

Event I Re-designated A Ordinary Shares” has the meaning given to such term under Article 15;

 

  2.37

Event II Re-designated A Ordinary Shares” has the meaning given to such term under Article 16;

 

  2.38

Event III Re-designated A Ordinary Shares” has the meaning given to such term under Article 17;

 

  2.39

Event I Restricted B Ordinary Shares” has the meaning given to such term under Article 8;

 

  2.40

Event II Restricted B Ordinary Shares” has the meaning given to such term under Article 9;

 

  2.41

Event III Restricted B Ordinary Shares” has the meaning given to such term under Article 10;

 

  2.42

Exchange” means any securities exchange or other system on which the shares of the Company may be listed or otherwise authorised for trading from time to time in circumstances where the Company has approved such listing or trading;

 

  2.43

Exchange Act” means the Securities Exchange Act of 1934 of the United States, as amended;

 

  2.44

First Measurement Period” has the meaning given to such term under the BCA;

 

  2.45

Group” means the Company and its subsidiaries from time to time and for the time being;

 

  2.46

Independent Directors” has the meaning given in Article 253.4;

 

  2.47

Institutional Investor” has the meaning given in Article 253.5

 

  2.48

Interested Person” has the meaning given in Article 253.6;

 

D-9


  2.49

member” means, in relation to any share, the member whose name is entered in the Register as the holder of the share or, where the context permits, the members whose names are entered in the Register as the joint holders of shares and shall include a member’s personal representatives in consequence of his or her death or bankruptcy;

 

  2.50

Memorandum” means the memorandum of association of the Company;

 

  2.51

Office” means the registered office for the time being of the Company;

 

  2.52

Ordinary Shares” means the A Ordinary Shares and the B Ordinary Shares;

 

  2.53

Person” means any individual, body corporate, partnership, unincorporated association, trust or other entity;

 

  2.54

Preferred Shares” means the Preferred Shares with a nominal value of US$0.0001 each in the capital of the Company;

 

  2.55

Proceedings” has the meaning given in Article 268;

 

  2.56

Redeemable Shares” means redeemable shares as defined by section 64 of the Act;

 

  2.57

Re-designation Event” means;

 

  (a)

the transfer of Restricted Voting Ordinary Shares from a Restricted Shareholder to a Shareholder or other person who is not a Restricted Shareholder;

 

  (b)

an event whereby a Restricted Shareholder ceases to be restricted from holding securities conferring voting rights in the Company without a Takeover Rules Event occurring by virtue of Rule 9 of the Takeover Rules, except in these circumstances the number of Restricted Voting Ordinary Shares which shall be re-designated as Ordinary Shares shall be the maximum number of Restricted Voting Ordinary Shares that can be re-designated without the former Restricted Shareholder becoming or remaining a Restricted Shareholder on the Re-designation Event; or

 

  (c)

a Restricted Shareholder of the Company undertaking a Takeover Rules Event and the Takeover Panel consenting to some or all of the Restricted Voting Ordinary Shares being re-designated as Ordinary Shares, in which case only those Restricted Voting Ordinary Shares the re-designation of which has been consented to by the Takeover Panel shall be re-designated as Ordinary Shares;

 

  2.58

Register” means the register of members of the Company to be kept as required by the Act;

 

  2.59

Reorganisation Event” means:

 

  (a)

any reclassification, statutory exchange, merger, consolidation or other similar business combination of the Company with or into another Person, in each case, pursuant to which at least a majority of the A Ordinary Shares are changed or converted into, or exchanged for, cash, securities or other property of the Company or another Person;

 

  (b)

any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition) or reclassification, recapitalization or reorganization of the A Ordinary Shares into other securities, in each case, other than the voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company;

 

D-10


  (c)

any consolidation or sub-division of the A Ordinary Shares; or

 

  (d)

any issue (other than an issue in lieu of cash dividends at the option of a holder of Ordinary Shares) of A Ordinary Shares by way of capitalisation of profits or reserves (including any share premium account and capital redemption reserve) to holders of A Ordinary Shares;

 

  2.60

Restricted B Ordinary Shares” means Event I Restricted B Ordinary Shares, Event II Restricted B Ordinary Shares and Event III Restricted B Ordinary Shares;

 

  2.61

Re-designated A Ordinary Shares” means Event I Re-designated A Ordinary Shares, Event II Re-designated A Ordinary Shares and Event III Re-designated A Ordinary Shares;

 

  2.62

Restricted Shareholder” means a member of the Company or other person who is restricted from holding securities conferring voting rights in the Company without a Takeover Rules Event occurring by virtue of Rule 9 of the Takeover Rules or a member or person who would be so restricted but for the limitations on voting rights set out under Article 21, provided that where two or more persons are deemed or presumed (and such presumption has not been rebutted) to be Acting in Concert for the purpose of Rule 9 of the Takeover Rules, only the person who acquired the securities conferring voting rights which, but for the application of Article 21, would trigger the Takeover Rules Event shall be deemed to be a Restricted Shareholder in respect only of such number of those securities conferring voting rights which, but for the application of Article 21, would trigger the Takeover Rules Event.

 

  2.63

Restricted Voting Ordinary Shares” means

 

  (a)

an Interest in Securities acquired by a Restricted Shareholder where the Restricted Shareholder has not elected for a Takeover Rules Event to occur; or

 

  (b)

Ordinary Shares the subject of a notification by a Shareholder by at least 10 Business Days’ notice in writing to the Company that such Shareholder wishes for such Ordinary Shares to be designated as Restricted Voting Ordinary Shares;

 

  2.64

Rights” has the meaning given in Article 257;

 

  2.65

Rights Plan” has the meaning given in Article 256;

 

  2.66

SEC” means the U.S. Securities and Exchange Commission;

 

  2.67

Second Measurement Period” has the meaning given to such term under the BCA;

 

  2.68

securities conferring voting rights” shall be construed in accordance with the definitions of “security” and “interest in a security” in section 1 of the Irish Takeover Panel Act 1997;

 

  2.69

Shareholder” means a holder of shares in the capital of the Company;

 

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  2.70

Takeover Panel” means the Irish Takeover Panel established under the Irish Takeover Panel Act 1997;

 

  2.71

Takeover Rules” means the Takeover Panel Act 1997, Takeover Rules 2022; and

 

  2.72

Takeover Rules Event” means either of the following events:

 

  (a)

a Restricted Shareholder and/or its Concert Parties (if any) extending an offer to the holders of each class of equity shares of the Company in accordance with Rule 9 of the Takeover Rules; or

 

  (b)

the Company obtaining approval of the Takeover Panel for a waiver of Rule 9 of the Takeover Rules in respect of a Restricted Shareholder or any of its Concert Parties (as applicable).

 

  2.73

Third Measurement Period” has the meaning given to such term under the BCA;

 

  2.74

Triggering Event I” has the meaning given to such term under the BCA;

 

  2.75

Triggering Event II” has the meaning given to such term under the BCA;

 

  2.76

Triggering Event III” has the meaning given to such term under the BCA;

 

  2.77

Triggering Event” means a Triggering Event I, Triggering Event II or a Triggering Event III;

NOTE: it is hereby declared that in these Articles:

 

  (a)

the word “company”, except where used in reference to this Company, shall be deemed to include a body corporate, whether a company (wherever formed, registered or incorporated), a corporation aggregate, a corporation sole and a national or local government or other legal entity; and

 

  (b)

the word “person”, shall be deemed to include any individual, firm, body corporate, association or partnership, government or state or agency of a state, local authority or government body or any joint venture association or partnership (whether or not having a separate legal personality) and that person’s personal representatives, successors or permitted assigns; and

 

  (c)

the word “property”, shall be deemed to include, where the context permits, real property, personal property including choses or things in action and all other intangible property and money and all estates, rights, titles and interests therein and includes the Company’s uncalled capital and future calls and all and every other undertaking and asset; and

 

  (d)

a word or expression used in the Articles which is not otherwise defined and which is also used in the Act shall have the same meaning here, as it has in the Act; and

 

  (e)

any phrase introduced by the terms “including”, “include” and “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms, whether or not followed by the phrases “but not limited to”, “without prejudice to the generality of the foregoing” or any similar expression; and

 

D-12


  (f)

words denoting the singular number only shall include the plural number and vice versa and references to one gender includes all genders.

AUTHORISED SHARE CAPITAL

 

3.

The authorised share capital of the Company is US$[ • ] divided into [•] A Ordinary Shares with a nominal value of US$0.0001 each, [•] B Ordinary Shares with a nominal value of US$0.0001 each, [ • ] Preferred Shares with a nominal value of US$0.0001 each, [ • ] Convertible Preferred Shares with a nominal value of US$0.0001 each and €[ • ] divided into [ • ] Deferred Shares with a nominal value of €1.00 each.

RIGHTS ATTACHING TO THE A ORDINARY AND B ORDINARY SHARES

 

4.

Subject to Articles 5 and 6, the A Ordinary Shares and B Ordinary Shares shall rank pari passu in all respects and shall:

 

  4.1

include the right to participate pro rata in all dividends declared by the Company; and

 

  4.2

include the right, in the event of the Company’s winding up, to participate pro rata in the total assets of the Company.

 

5.

Subject to the right of the Company to set record dates for the purposes of determining the identity of members entitled to notice of and/or to vote at a general meeting and the authority of the Board and chairperson of the meeting to maintain order and security:

 

  5.1

the A Ordinary Shares shall include the right to attend any general meeting of the Company and to exercise one vote per A Ordinary Share held at any general meeting of the Company;

 

  5.2

the B Ordinary Shares shall include the right to attend any general meeting of the Company and to exercise ten votes per B Ordinary Share held at any general meeting of the Company; and

 

  5.3

the holders of the A Ordinary Shares and the B Ordinary Shares shall vote at any general meeting as members of a single class.

 

6.

The B Ordinary Shares shall not be transferable and any member holding B Ordinary Shares shall not be entitled to transfer any of his B Ordinary Shares by any instrument of transfer.

 

7.

The rights attaching to the A Ordinary Shares and B Ordinary Shares may be subject to the terms of issue of any series or class of Preferred Shares allotted by the Directors from time to time in accordance with Article 23.

RESTRICTION OF ECONOMIC RIGHTS OF THE B ORDINARY SHARES

 

8.

In the event that at the end of the First Measurement Period, Triggering Event I has not occurred, 2,000,000 of the B Ordinary Shares (the “Event I Restricted B Ordinary Shares”) in issue shall automatically be subject to the following restrictions, without the requirement of any approval by the Board or any shareholders of the Company:

 

  8.1

the Event I Restricted B Ordinary Shares shall carry no right to participate in any dividend declared by the Company;

 

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  8.2

the Event I Restricted B Ordinary Shares shall carry no right, in the event of the Company’s winding up, to participate in any assets of the Company; and

but save as provided herein, the Event I Restricted B Ordinary Shares shall rank pari passu at all times and in all respects with all other B Ordinary Shares.

 

9.

In the event that at the end of the Second Measurement Period, Triggering Event II has not occurred, 2,000,000 of the B Ordinary Shares (the “Event II Restricted B Ordinary Shares”) in issue shall automatically be subject to the following restrictions, without the requirement of any approval by the Board or any shareholders of the Company:

 

  9.1

the Event II Restricted B Ordinary Shares shall carry no right to participate in any dividend declared by the Company;

 

  9.2

the Event II Restricted B Ordinary Shares shall carry no right, in the event of the Company’s winding up, to participate in any assets of the Company; and

but save as provided herein, the Event II Restricted B Ordinary Shares shall rank pari passu at all times and in all respects with all other B Ordinary Shares.

 

10.

In the event that at the end of the Third Measurement Period, Triggering Event III has not occurred, 2,000,000 of the B Ordinary Shares (the “Event III Restricted B Ordinary Shares”) in issue shall automatically be subject to the following restrictions, without the requirement of any approval by the Board or any shareholders of the Company:

 

  10.1

the Event III Restricted B Ordinary Shares shall carry no right to participate in any dividend declared by the Company;

 

  10.2

the Event III Restricted B Ordinary Shares shall carry no right, in the event of the Company’s winding up, to participate in any assets of the Company; and

but save as provided herein, the Event III Restricted B Ordinary Shares shall rank pari passu at all times and in all respects with all other B Ordinary Shares

 

11.

The number of Restricted B Ordinary Shares held by each member shall be in equal proportions to the total number of B Ordinary Shares held by such members.

 

12.

Subject to Articles 8 through 10, any Restricted B Ordinary Shares in issue shall comprise a single class with any other B Ordinary Shares in issue.

ISSUE OF A ORDINARY SHARES TO CVR HOLDERS

 

13.

Subject to the provisions of these Articles, the Directors may allot such number of A Ordinary Shares to the CVR holders pursuant to the terms of any agreement between the Company and the CVR holders.

RESTRICTION OF VOTING RIGHTS OF THE B ORDINARY SHARES

 

14.

Upon the earlier of (a) the tenth anniversary of the Adoption Date; and (b) Quick Response Services Provider LLP and their Affiliates collectively ceasing to hold 50% or more of such number of A Ordinary Shares held by Quick Response Services Provider LLP on Closing (as defined in the BCA), provided that, in each case, the date on which the determination of whether Triggering Event III has occurred or not has expired, all of the B Ordinary Shares (the “Restricted Voting B

 

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  Ordinary Shares”) in issue shall automatically be subject to the following restrictions and terms, without the requirement of any approval by the Board or any shareholders of the Company:

 

  14.1

the Restricted Voting B Ordinary Shares shall carry no rights to receive notice of or to attend or vote at any general meeting of the Company or otherwise; and

 

  14.2

the Restricted Voting B Ordinary Shares shall be deemed to be Redeemable Shares and any acquisition of such shares by the Company, save where acquired for nil consideration in accordance with the Act, shall constitute the redemption of a Redeemable Share in accordance with Chapter 6 of Part 3 of the Act.

REDESIGNATION OF THE B ORDINARY SHARES

 

15.

Where Triggering Event I occurs under the terms of the BCA, 2,000,000 of the B Ordinary Shares shall automatically re-designate as A Ordinary Shares (“Event I Re-designated A Ordinary Shares”), without the requirement of any approval by the Board or any shareholders of the Company.

 

16.

Where Triggering Event II occurs under the terms of the BCA, 2,000,000 of the B Ordinary Shares shall automatically re-designate as A Ordinary Shares (“Event II Re-designated A Ordinary Shares”), without the requirement of any approval by the Board or any shareholders of the Company.

 

17.

Where Triggering Event III occurs under the terms of the BCA, 2,000,000 of the B Ordinary Shares shall automatically re-designate as A Ordinary Shares (“Event III Re-designated A Ordinary Shares”), without the requirement of any approval by the Board or any shareholders of the Company.

 

18.

The Re-designated A Ordinary Shares shall rank pari passu in all respects with the A Ordinary Shares and comprise a single class with any other A Ordinary Shares in issue.

 

19.

The number of B Ordinary Shares held by each member that are re-designated as A Ordinary Shares pursuant to Article 15, 16 or 17 shall be in equal proportions to the total number of B Ordinary Shares held by such members at the time such shares are re-designated.

RESTRICTED VOTING ORDINARY SHARES

 

20.

If a Restricted Shareholder acquires securities conferring voting rights in the Company, unless the Restricted Shareholder elects to acquire such securities with a Takeover Rules Event occurring, the Ordinary Shares referable to such securities conferring voting rights in the Company shall be designated as Restricted Voting Ordinary Shares having the restrictions set out in Article 21 and any share certificates to be issued in respect of such Ordinary Shares shall bear a legend making reference to the shares as Restricted Voting Ordinary Shares. A Shareholder may also, by at least 10 Clear Days’ notice in writing to the Company or such shorter time as the Company may agree, request that the Company redesignate some or all of the Ordinary Shares that it holds as Restricted Voting Ordinary Shares.

 

21.

The following restrictions shall attach to Restricted Voting Ordinary Shares:

 

  21.1

until a Re-designation Event occurs, the rights attaching to such shares shall be restricted as set out in this Article 21;

 

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  21.2

the Restricted Voting Ordinary Shares shall carry no rights to receive notice of or to attend or vote at any general meeting of the Company;

 

  21.3

save as provided herein, the Restricted Voting Ordinary Shares shall rank pari passu at all times and in all respects with all other Ordinary Shares;

 

  21.4

forthwith upon a Re-designation Event, each holder of Restricted Voting Ordinary Shares that are to be re-designated shall send to the Company the certificates, if any, in respect of the Restricted Voting Ordinary Shares held immediately prior to the Re-designation Event and thereupon, but subject to receipt of such certificates, the Company shall issue to such holders respectively replacement certificates for the Ordinary Shares without a legend making reference to the shares as Restricted Voting Ordinary Shares; and

 

  21.5

re-designation of the Restricted Voting Ordinary Shares shall be effected by way of a deemed automatic re-designation of such shares as Ordinary Shares immediately upon and subject to a Re-designation Event, without the requirement of any approval by the Board or any shareholders of the Company.

 

22.

Any Restricted Voting Ordinary Shares in issue shall comprise a single class with any other Ordinary Shares in issue.

RIGHTS ATTACHING TO PREFERRED SHARES

 

23.

The Board is empowered to cause the Preferred Shares to be issued from time to time as shares of one or more series of Preferred Shares, and in the resolution or resolutions providing for the issue of Preferred Shares of each particular series, before issuance, the Board is expressly authorised to fix:

 

  23.1

the distinctive designation of such series and the number of shares which shall constitute such series, which number may be increased (except as otherwise provided by the Board in creating such series) or decreased (but not below the number of shares thereof then in issue) from time to time by resolution of the Board;

 

  23.2

the rate of dividends payable on shares of such series, if any, whether or not and upon what conditions dividends on shares of such series shall be cumulative and, if cumulative, the date or dates from which dividends shall accumulate and the preference or relation which such dividends shall bear to the dividends payable on any other class or classes or on any other series of share capital;

 

  23.3

the procedures for, and the terms, if any, on which shares of such series may be redeemed, including without limitation, the redemption price or prices for such series, which may consist of a redemption price or scale of redemption prices applicable only to redemption in connection with a sinking fund (which term as used herein shall include any fund or requirement for the periodic purchase or redemption of shares), and the same or a different redemption price or scale of redemption prices applicable to any other redemption;

 

  23.4

the terms and amount of any sinking fund provided for the purchase or redemption of shares of such series;

 

  23.5

the amount or amounts which shall be paid to the holders of shares of such series in case of liquidation, dissolution or winding up of the Company, whether voluntary or involuntary;

 

D-16


  23.6

the terms, if any, upon which the holders of shares of such series may convert shares thereof into shares of any other class or classes or of any one or more series of the same class or of another class or classes;

 

  23.7

the voting rights, full or limited, if any, of the shares of such series; and whether or not and under what conditions the shares of such series (alone or together with the shares of one or more other series having similar provisions) shall be entitled to vote separately as a single class, for the election of one or more additional Directors in case of dividend arrears or other specified events, or upon other matters;

 

  23.8

whether or not the holders of shares of such series, as such, shall have any pre-emptive or preferential rights to subscribe for or purchase shares of any class or series of shares of the Company, now or hereafter authorised, or any securities convertible into, or warrants or other evidences of optional rights to purchase or subscribe for, shares of any class or series of the Company, now or hereafter authorised;

 

  23.9

the limitations and restrictions, if any, to be effective while any shares of such series are outstanding upon the payment of dividends, or the making of other distributions on, and upon the purchase, redemption or other acquisition by the Company of, any other class or classes of shares ranking junior to the shares of such series either as to dividends or upon liquidation, dissolution or winding up;

 

  23.10

the conditions or restrictions, if any, upon the creation of indebtedness of the Company or upon the issuance of any additional shares (including additional shares of such series or of any other class) ranking on a parity with or prior to the shares of such series as to dividends or distribution of assets upon liquidation; and

 

  23.11

such other rights, preferences and limitations as may be permitted to be fixed by the Board of the Company under the laws of Ireland as in effect at the time of the creation of such series.

 

24.

The Board is authorised to change the designations, rights, preferences and limitations of any series of Preferred Shares theretofore established, no shares of which have been issued.

 

25.

The rights conferred upon the member of any pre-existing shares in the share capital of the Company shall be deemed not to be varied by the creation, issue and allotment of any series of Preferred Shares in accordance with these Articles.

RIGHTS ATTACHING TO CONVERTIBLE PREFERRED SHARES

 

26.

The Board is empowered to cause the Convertible Preferred Shares to be issued from time to time as shares of one or more series of Convertible Preferred Shares. The following are the rights of Convertible Preferred Shares and the limitations and restrictions to which they are subject:

Preferred Dividends

 

  26.1

Out of the profits available for distribution and resolved to be distributed, each holder of the Convertible Preferred Shares shall be entitled to:

 

  (a)

priority in any payment of any dividend or other distribution on any other class of shares in the capital of the Company;

 

D-17


  (b)

participate in the payment of any dividend paid to the holders of A Ordinary Shares (whether paid in cash or otherwise) as they would have been entitled to if all the Convertible Preferred Shares registered in their name had been converted into A Ordinary Shares at the Conversion Rate then applicable; and

 

  (c)

a cumulative preferred dividend at the rate of 10% (ten per cent) per annum (the “Preferred Dividend”) payable quarterly based on USD10.00 per Convertible Preferred Share and calculated on a daily basis from the date of issuance of the Convertible Preferred Share. At the option of the Board, the Preferred Dividend may be paid in respect of each quarter (i) where there are distributable reserves, in cash (in USD) and/or (ii) subject to the rules and regulations of any Exchange on which the A Ordinary Shares in the capital of the Company or other securities of the Company are listed or under the United States securities laws and regulations, as may be applicable, and applicable law, the Board may direct payment of the Preferred Dividend wholly or partly by the allotment of a number of Convertible Preferred Shares credited as fully-paid (a “PIK Dividend”). The number of Convertible Preferred Shares allotted pursuant to the PIK Dividend to each holder shall be (i) calculated on the basis of USD 10.00 per Convertible Preferred Share and (ii) as nearly as possible equal to (but not greater than) the relevant cash amount (disregarding any tax credit) of the Preferred Dividend that the relevant holder would have received, provided that (A) no holder of a Convertible Preferred Share shall be entitled to any fractions of A Ordinary Shares on payment of a PIK Dividend and shall instead be entitled to such number of A Ordinary Shares rounded down in the aggregate to the nearest whole A Ordinary Share; and (B) if a doubt or dispute arises concerning such calculation, the Board shall, if requested by the majority of the holders of the Convertible Preferred Shares, refer such matter to the auditors for the time being of the Company (the “Auditors”) (or such independent firm of accountants as the Board may decide) whose determination shall, in the absence of manifest error, be final and binding on all concerned (and the costs of the Auditors (or such independent firm of accountants) shall be borne by the Company). Payments of Preferred Dividends shall be made to holders on the register at any date selected by the Board up to [•] days prior to the payment of the Preferred Dividend.

 

  26.2

Subject to Article 26.1., the holders of Convertible Preferred Shares shall not be entitled to any further right of participation in the profits of the Company.

Transfer Rights

 

  26.3

Subject to the rules and regulations of any Exchange on which the shares in the capital of the Company or other securities of the Company are listed or under the United States securities laws and regulations, as may be applicable, and applicable law, any holder of a Convertible Preferred Share may transfer all or any of his Convertible Preferred Shares by an instrument of transfer in the usual common form or in any other form which the Board may from time to time approve.

Voting Rights

 

  26.4

Subject to Article 26.6, the Convertible Preferred Shares shall include the right to attend any general meeting of the Company and to exercise such number of votes per Convertible Preferred Share on an as converted basis at any general meeting of the Company.

 

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  26.5

The holders of the Convertible Preferred Shares shall have the right to vote with the holders of A Ordinary Shares at any general meeting of the Company, as if they were members of a single class.

 

  26.6

The holders of Convertible Preferred Shares shall be entitled to vote as a separate class to any other class of shares if a resolution is to be proposed abrogating, varying or modifying any of the rights or privileges of the holders of the Convertible Preference Shares, or for liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, in which case they shall only be entitled to vote on such resolution as a separate class.

Liquidation Rights

 

  26.7

On a return of capital on a liquidation, dissolution or winding up of the Company, whether voluntary or involuntary (other than on conversion, redemption or purchase of shares) of the Company prior to the third anniversary of Closing (as defined in the BCA), the holders of the Convertible Preferred Shares shall be entitled in priority to any payment to the holders of any other class of shares to the greater of:

 

  (a)

a sum equal to the aggregate of (i) USD10.00 per Convertible Preferred Share; and (ii) all unpaid arrears and accruals (if any) of the Preferred Dividend in respect of the Convertible Preferred Shares held by them respectively whether or not such Preferred Dividends have been declared or become due and payable to be calculated down to and including the date of the third anniversary of Closing (as defined in the BCA); and

 

  (b)

the amounts payable in respect of such number of A Ordinary Shares to which the holders of the Convertible Preferred Shares would have been entitled to on a conversion of such Convertible Preferred Shares into A Ordinary Shares at the Conversion Rate immediately prior to such liquidation, dissolution or winding up of the Company.

 

  26.8

On a return of capital on a liquidation, dissolution or winding up of the Company, whether voluntary or involuntary (other than on conversion, redemption or purchase of shares) of the Company after the third anniversary of Closing (as defined in the BCA), the holders of the Convertible Preferred Shares shall be entitled in priority to any payment to the holders of any other class of shares to such amounts payable in respect of such number of A Ordinary Shares to which the holders of the Convertible Preferred Shares would have been entitled to on a conversion of such Convertible Preferred Shares into A Ordinary Shares at the Conversion Rate immediately prior to such liquidation, dissolution or winding up of the Company.

Conversion

 

  26.9

Subject as hereinafter provided, each holder of Convertible Preferred Shares shall, at any time, be entitled to convert all or (subject as provided below) any of their Convertible Preferred Shares into fully-paid A Ordinary Shares at the Conversion Rate provided that if a Conversion Notice (as described in sub-paragraph 26.11 below) is given in respect of part only of a holding of Convertible Preferred Shares, treating holdings of the same holder or joint holders in uncertificated form as separate holdings unless the Directors otherwise determine, so that there would following the conversion remain a number of Convertible Preferred Shares in that holding smaller than that required to convert into one A Ordinary Share at the Conversion Rate then applicable, all the Convertible Preferred Shares in that holding shall be converted notwithstanding the figure inserted in the Conversion Notice.

 

D-19


  26.10

For the purposes of the following Articles, a “Conversion Date” shall be such date set out in the Conversion Notice provided that such date shall not fall on a Saturday, Sunday or a day which is a public holiday in Ireland or the United States, in which case the Conversion Date shall be the first business day following such day.

 

  26.11

The right to convert shall be exercisable on any Conversion Date by sending to the Company or its agent at any time a properly authenticated dematerialised instruction (or other notification specified by the Company) in such agreed form between the Company and the holder(s) of the Convertible Preferred Shares (the “Conversion Notice”). A Conversion Notice once given may not be withdrawn without consent in writing of the Company.

 

  26.12

The Directors may require all (but not only some) of the issued Convertible Preferred Shares to convert into fully paid up A Ordinary Shares:

 

  (a)

following the third anniversary of Closing (as defined in the BCA), at the Conversion Rate provided that the volume weighted average price of the A Ordinary Shares (on the Exchange on which the A Ordinary Shares are listed) exceeds USD18.00 (eighteen United States Dollars) for any twenty (20) trading days during a thirty (30) trading day period; and

 

  (b)

prior to the third anniversary of Closing (as defined in the BCA), at the Conversion Rate as adjusted to include a sum equal to all unpaid arrears and accruals (if any) of the Preferred Dividend in respect of the Convertible Preferred Shares whether or not such Preferred Dividend has been declared or earned or become due and payable, to be calculated down to and including the date of the third anniversary of Closing (as defined in the BCA), provided that the volume weighted average price of the A Ordinary Shares (on the Exchange on which the A Ordinary Shares are listed) exceeds USD18.00 (eighteen United States Dollars) for any twenty (20) trading days during a thirty (30) trading day period.

 

  26.13

Upon a Company Change of Control, the Convertible Preferred Shares shall all automatically convert into fully-paid A Ordinary Shares at the Conversion Rate.

 

  26.14

Conversion of any Convertible Preferred Shares shall be effected in such manner as the Directors shall from time to time determine in accordance with the Articles 26.15 through 26.18 or otherwise as may be authorised by law (and by the requirements of the relevant system concerned in the case of uncertificated shares).

 

  26.15

No holder of a Convertible Preferred Share shall be entitled to any fractions of A Ordinary Shares on conversion of any Convertible Preferred Shares and shall instead be entitled to such number of A Ordinary Shares rounded down in the aggregate to the nearest whole A Ordinary Share.

 

  26.16

The Preferred Dividend on any Convertible Preferred Shares converted (whatever the manner of conversion) shall cease to accrue with effect from the Business Day last preceding the relevant Conversion Date. The A Ordinary Shares arising on such conversion shall rank pari passu in all respects with the A Ordinary Shares then in issue and shall entitle the holder to all dividends and (unless an adjustment shall have been made in respect thereof under sub-Article 26.18) other distributions payable on the A Ordinary Shares in respect of the financial year of the Company in which the Conversion Date falls, but not any dividends or distributions in respect of any earlier financial year.

 

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  26.17

Allotments of A Ordinary Shares arising from conversion (whatever the manner of conversion) shall be effected within 14 days of the Conversion Date. Unless the Directors otherwise determine, or unless the regulations or the rules of the relevant system concerned otherwise require, A Ordinary Shares arising on conversion of uncertificated Convertible Preferred Shares shall be in uncertificated form. Transfers shall be certified against the Register.

 

  26.18

If, whilst any Convertible Preferred Shares remain capable of being converted into A Ordinary Shares, a Reorganisation Event occurs, the number of A Ordinary Shares to be issued on any subsequent conversion of Convertible Preferred Shares shall be reduced or increased pro rata and, if any doubt shall arise as to the number thereof, the certificate of the Auditors or such independent firm of accountants (as the Board may decide) shall be conclusive and binding on all concerned.

 

  26.19

In the event the A Ordinary Shares are replaced or substituted with another security or class of security in the capital of the Company, the Convertible Preferred Shares shall be convertible into such other security or class of security. If, whilst any Convertible Preferred Shares remain capable of being converted into such other security or class of security, a Reorganisation Event occurs, the number of such other security or class of security to be issued on any subsequent conversion of Convertible Preferred Shares shall be (a) reduced or increased pro rata; and (b) no less than the number of A Ordinary Shares to which the holders of the Convertible Preferred Shares would have been entitled to had the A Ordinary Shares not been replaced or substituted with such other security or class of security, and, if any doubt shall arise as to the number thereof, the certificate of the Auditors or such independent firm of accountants (as the Board may decide) shall be conclusive and binding on all concerned. For the purposes of this Article 26.19, all references to the A Ordinary Shares in the definition of a “Reorganisation Event” shall be replaced with such other security or class of security, as applicable.

 

  26.20

The Company may offer to redeem any Convertible Preferred Share and any Convertible Preferred Share shall be deemed to be a Redeemable Share on, and from the time of, the existence or creation of an agreement, transaction or trade between the Company and any person (who may or may not be a member) pursuant to which the Company acquires or will acquire such Convertible Preferred Share in the capital of the Company, save for an acquisition for nil consideration pursuant to section 102(1)(a) of the Act. In these circumstances, the acquisition of such Convertible Preferred Share by the Company, save where acquired for nil consideration in accordance with the Act, shall constitute the redemption of a Redeemable Share in accordance with Chapter 6 of Part 3 of the Act. No resolution, whether special or otherwise, shall be required to be passed to deem any Convertible Preferred Share in the capital of the Company a Redeemable Share.

RIGHTS ATTACHING TO DEFERRED SHARES

 

27.

The Deferred Shares shall have the rights and privileges and be subject to the restrictions set out in this Article 27:

 

  27.1

the Deferred Shares are non-voting shares and do not convey upon the holder the right to be paid a dividend or to receive notice of or to attend, vote or speak at a general meeting;

 

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  27.2

the Deferred Shares confer the right on a return of capital, on a winding-up or otherwise, only to the repayment of the nominal value paid up on the Deferred Shares after repayment of the nominal value of the Ordinary Shares and the Convertible Preferred Shares; and

 

  27.3

any Director (the “Agent”) is appointed the attorney of the holder of a Deferred Share, with an irrevocable instruction to the Agent to execute all or any forms of transfer and/or renunciation and/or surrender and/or other documents in the Agent’s discretion in relation to the Deferred Shares in favour of the Company or as it may direct and to deliver such forms of transfer and/or renunciation and/or surrender and/or other documents together with any certificate(s) and/or other documents for registration and to do all such other acts and things as may in the reasonable opinion of the Agent be necessary or expedient for the purpose of, or in connection with, the surrender of the Deferred Shares, the purchase by the Company of the Deferred Shares for nil consideration or such other consideration as the Board may determine and to vest the said Deferred Shares in the Company.

 

28.

Without prejudice to any special rights conferred on the members of any existing shares or class of shares and subject to the provisions of the Act, any share may be issued with such rights or restrictions as the Company may by ordinary resolution determine.

ALLOTMENT AND ACQUISITION OF SHARES

 

29.

The following provisions shall apply:

 

  29.1

Subject to the provisions of these Articles relating to new shares, the shares shall be at the disposal of the Directors, and they may (subject to the provisions of the Act) allot, grant options over or otherwise dispose of them to such persons, on such terms and conditions and at such times as they may consider to be in the best interests of the Company and its members, but so that no share shall be issued at a discount and so that, in the case of shares offered to the public for subscription, the amount payable on application on each share shall not be less than one-quarter of the nominal amount of the share and the whole of any premium thereon.

 

  29.2

Without prejudice to the generality of the powers conferred on the Directors by other paragraphs of these Articles, and subject to any requirement to obtain the approval of the members under any laws, regulations or the rules of any Exchange, the Directors may grant from time to time options to subscribe for the unallotted shares in the capital of the Company to Directors and other persons in the service or employment of the Company or any subsidiary or associate company of the Company on such terms and subject to such conditions as may be approved from time to time by the Directors or by any committee thereof appointed by the Directors for the purpose of such approval and on the terms and conditions required to obtain the approval of any statutory authority in any jurisdiction.

 

  29.3

Subject to the provisions of these Articles including but not limited to Article 20, the Directors are hereby generally and unconditionally authorised to exercise all the powers of the Company to allot relevant securities within the meaning of section 1021 of the Act. The maximum amount of relevant securities which may be allotted under the authority hereby conferred shall be the amount of the authorised but unissued share capital of the Company at the Adoption Date. The authority hereby conferred shall expire on the date which is five (5) years after the Adoption Date unless and to the extent that such authority is renewed, revoked or extended prior to such date. The Company may before such expiry make an offer or agreement which would or might require relevant securities to be allotted after such expiry and the Directors may allot relevant securities in pursuance of such offer or agreement, notwithstanding that the authority hereby conferred has expired.

 

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  29.4

The Directors are hereby empowered pursuant to sections 1022 and 1023 of the Act to allot equity securities (within the meaning of the said section 1023) for cash pursuant to the authority conferred by Article 29.3 as if section 1022(1) of the Act did not apply to any such allotment. The authority conferred by this Article 29.4 shall expire on the date which is five (5) years after the Adoption Date, unless previously renewed, varied or revoked; provided that the Company may before the expiry of such authority make an offer or agreement which would or might require equity securities to be allotted after such expiry and the Directors may allot equity securities in pursuance of such an offer or agreement as if the power conferred by this Article 29.4 had not expired.

 

  29.5

The Company may issue permissible letters of allotment (as defined by section 1019 of the Act) to the extent permitted by the Act.

 

  29.6

Unless otherwise determined by the Directors or the rights attaching to or by the terms of issue of any particular shares, or to the extent required by the Act, any Exchange, depository or any operator of any clearance or settlement system, no person whose name is entered as a member in the Register shall be entitled to receive a share certificate for any shares of any class held by him or her in the capital of the Company (nor on transferring part of a holding, to a certificate for the balance).

 

  29.7

Any share certificate, if issued, shall specify the number of shares in respect of which it is issued and the amount paid thereon or the fact that they are fully paid, as the case may be, and may otherwise be in such form as shall be determined by the Directors. Such certificates may be under seal. All certificates for shares in the capital of the Company shall be consecutively numbered or otherwise identified and shall specify the shares in the capital of the Company to which they relate. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered in the Register. All certificates surrendered to the Company for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares in the capital of the Company shall have been surrendered and cancelled. The Directors may authorise certificates to be issued with the seal and authorised signature(s) affixed by some method or system of mechanical process. In respect of a share or shares in the capital of the Company held jointly by several persons, the Company shall not be bound to issue a certificate or certificates to each such person, and the issue and delivery of a certificate or certificates to one of several joint holders shall be sufficient delivery to all such holders. If a share certificate is defaced, worn out, lost or destroyed, it may be renewed on such terms (if any) as to evidence and indemnity and on the payment of such expenses reasonably incurred by the Company in investigating such evidence, as the Directors may prescribe, and, in the case of defacement or wearing out, upon delivery of the old certificate.

 

30.

The Company:

 

  30.1

may give financial assistance for the purpose of an acquisition of its shares or, where the Company is a subsidiary, its holding company where permitted by sections 82 and 1043 of the Act, and

 

  30.2

is authorised, for the purposes of section 105(4)(a) of the Act, but subject to section 1073 of the Act, to acquire its own shares.

 

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31.

The Directors (and any committee established under Article 201 and so authorised by the Directors and any person so authorised by the Directors or such committee) may without prejudice to Article 183:

 

  31.1

allot, issue, grant options over and otherwise dispose of shares in the Company; and

 

  31.2

exercise the Company’s powers under Article 29,

on such terms and subject to such conditions as they think fit, subject only to the provisions of the Act and these Articles.

 

32.

Unless the Board determines otherwise, any share in the capital of the Company shall be deemed to be a Redeemable Share on, and from the time of, the existence or creation of an agreement, transaction or trade between the Company and any person (who may or may not be a member) pursuant to which the Company acquires or will acquire a share in the capital of the Company, or an interest in shares in the capital of the Company, from the relevant person, save for an acquisition for nil consideration pursuant to section 102(1)(a) of the Act. In these circumstances, the acquisition of such shares by the Company, save where acquired for nil consideration in accordance with the Act, shall constitute the redemption of a Redeemable Share in accordance with Chapter 6 of Part 3 of the Act. No resolution, whether special or otherwise, shall be required to be passed to deem any share in the capital of the Company a Redeemable Share.

VARIATION OF CLASS RIGHTS

 

33.

Without prejudice to the authority conferred on the Directors pursuant to Article 23 to issue Preferred Shares in the capital of the Company, where the shares in the Company are divided into different classes, the rights attaching to a class of shares may only be varied or abrogated if (a) the holders of 75% in nominal value of the issued shares of that class consent in writing to the variation, or (b) a special resolution, passed at a separate general meeting of the holders of that class, sanctions the variation. The quorum at any such separate general meeting, other than an Adjourned Meeting, shall be two persons holding or representing by proxy at least one-third in nominal value of the issued shares of the class in question and the quorum at an Adjourned Meeting shall be one person holding or representing by proxy shares of the class in question or that person’s proxy. The rights conferred upon the holders of any class of shares issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be varied by a purchase or redemption by the Company of its own shares or by the creation or issue of further shares ranking pari passu therewith or subordinate thereto.

 

34.

The redemption or purchase of Preferred Shares or any class or series of Preferred Shares shall not constitute a variation of rights of the holders of Preferred Shares.

 

35.

The issue, redemption or purchase of any of the Preferred Shares shall not constitute a variation of the rights of the holders of Ordinary Shares and Convertible Preference Shares.

 

36.

The issue of Preferred Shares or any class or series of Preferred Shares which rank pari passu with, or junior to, any existing Preferred Shares or class of Preferred Shares shall not constitute a variation of the existing Preferred Shares or class of Preferred Shares.

 

37.

The rights conferred upon the holders of the shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be varied by the creation or issue of further shares ranking pari passu therewith.

 

D-24


TRUSTS NOT RECOGNISED

 

38.

Except as required by law, no person shall be recognised by the Company as holding any share upon any trust, and the Company shall not be bound by or be compelled in any way to recognise (even when having notice thereof) any equitable, contingent, future or partial interest in any share or any interest in any fractional part of a share or (except only as by these Articles or by law otherwise provided) any other rights in respect of any share except an absolute right to the entirety thereof in the member. This shall not preclude (i) the Company from requiring the members or a transferee of shares to furnish the Company with information as to the beneficial ownership of any share when such information is reasonably required by the Company, or (ii) the Directors, where they consider it appropriate, providing the information given to the members of shares to the holders of depositary instruments in such shares.

CALLS ON SHARES

 

39.

The Directors may from time to time make calls upon the members in respect of any consideration unpaid on their shares in the Company (whether on account of the nominal value of the shares or by way of premium), provided that in the case where the conditions of allotment or issuance of shares provide for the payment of consideration in respect of such shares at fixed times, the Directors shall only make calls in accordance with such conditions.

 

40.

Each member shall (subject to receiving at least thirty days’ notice specifying the time or times and place of payment, or such lesser or greater period of notice provided in the conditions of allotment or issuance of the shares) pay to the Company, at the time or times and place so specified, the amount called on the shares.

 

41.

A call may be revoked or postponed, as the Directors may determine.

 

42.

Subject to the conditions of allotment or issuance of the shares, a call shall be deemed to have been made at the time when the resolution of the Directors authorising the call was passed and may be required to be paid by instalments if specified in the call.

 

43.

The joint holders of a share shall be jointly and severally liable to pay all calls in respect of it.

 

44.

If the consideration called in respect of a share or in respect of a particular instalment is not paid in full before or on the day appointed for payment of it, the person from whom the sum is due shall pay interest in cash on the unpaid value from the day appointed for payment of it to the time of actual payment of such rate, not exceeding five per cent per annum or such other rate as may be specified by an order under section 2(7) of the Act, as the Directors may determine, but the Directors may waive payment of such interest wholly or in part.

 

45.

Any consideration which, by the terms of issue of a share, becomes payable on allotment or issuance or at any fixed date (whether on account of the nominal value of the share or by way of premium) shall, for the purposes of these Articles, be deemed to be a call duly made and payable on the date on which, by the terms of issue, that consideration becomes payable, and in the case of non-payment of such a consideration, all the relevant provisions of these Articles as to payment of interest and expenses, forfeiture or otherwise, shall apply as if such consideration had become payable by virtue of a call duly made and notified.

 

46.

The Directors may, on the issue of shares, differentiate between the holders of different classes as to the amount of calls to be paid and the times of payment.

 

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47.

The Directors may, if they think fit:

 

  (a)

receive from any member willing to advance such consideration, all or any part of the consideration uncalled and unpaid upon any shares held by him or her; and/or

 

  (b)

pay, upon all or any of the consideration so advanced (until the amount concerned would, but for such advance, become payable) interest at such rate (not exceeding, unless the Company in a general meeting otherwise directs, five per cent per annum or such other rate as may be specified by an order under section 2(7) of the Act) as may be agreed upon between the Directors and the member paying such consideration in advance.

 

48.

The Company may:

 

  (a)

acting by its Directors, make arrangements on the issue of shares for a difference between the members in the amounts and times of payment of calls on their shares;

 

  (b)

acting by its Directors, accept from any member the whole or a part of the amount remaining unpaid on any shares held by him or her, although no part of that amount has been called up;

 

  (c)

acting by its Directors and subject to the Act, pay a dividend in proportion to the amount paid up on each share where a larger amount is paid up on some shares than on others; and

 

  (d)

by special resolution determine that any portion of its share capital which has not been already called up shall not be capable of being called up except in the event and for the purposes of the Company being wound up; upon the Company doing so, that portion of its share capital shall not be capable of being called up except in that event and for those purposes.

LIEN

 

49.

The Company shall have a first and paramount lien on every share (not being a fully paid share) for all consideration (whether immediately payable or not) called, or payable at a fixed time, in respect of that share.

 

50.

The Directors may at any time declare any share in the Company to be wholly or in part exempt from Article 49.

 

51.

The Company’s lien on a share shall extend to all dividends payable on it.

 

52.

The Company may sell, in such manner as the Directors think fit, any shares on which the Company has a lien, but no sale shall be made unless (i) a sum in respect of which the lien exists is immediately payable; and (ii) the following conditions are satisfied:

 

  52.1

a notice in writing, stating and demanding payment of such part of the amount in respect of which the lien exists as is immediately payable, has been given to the registered holder of the share for the time being, or the person entitled thereto by reason of his or her death or bankruptcy; and

 

  52.2

a period of 14 days after the date of giving of that notice has expired.

 

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53.

The following provisions apply in relation to a sale referred to in Article 52:

 

  53.1

to give effect to any such sale, the Directors may authorise some person to transfer the shares sold to the purchaser of them;

 

  53.2

the purchaser shall be registered as the holder of the shares comprised in any such transfer;

 

  53.3

the purchaser shall not be bound to see to the application of the purchase consideration, nor shall his or her title to the shares be affected by any irregularity or invalidity in the proceedings in reference to the sale; and

 

  53.4

the proceeds of the sale shall be received by the Company and applied in payment of such part of the amount in respect of which the lien exists as is immediately payable, and the residue, if any, shall (subject to a like lien for sums not immediately payable as existed upon the shares before the sale) be paid to the person entitled to the shares at the date of the sale.

FORFEITURE

 

54.

If a member of the Company fails to pay any call or instalment of a call on the day appointed for payment of it, the Directors may, at any time thereafter during such time as any part of the call or instalment remains unpaid, serve a notice on the member requiring payment of so much of the call or instalment as is unpaid, together with any interest which may have accrued.

 

55.

The notice referred to in Article 54 shall:

 

  55.1

specify a further day (not earlier than the expiration of 14 days after the date of service of the notice) on or before which the payment required by the notice is to be made; and

 

  55.2

state that, if the amount concerned is not paid by the day so specified, the shares in respect of which the call was made will be liable to be forfeited.

 

56.

If the requirements of the notice referred to in Article 55 are not complied with, any share in respect of which the notice has been served may at any time after the day so specified (but before, should it occur, the payment required by the notice has been made) be forfeited by a resolution of the Directors to that effect.

 

57.

On the trial or hearing of any action for the recovery of any money due for any call, it shall be sufficient to prove that the name of the member sued is entered in the Register as the holder, or one of the holders, of the shares in the capital of the Company in respect of which such debt accrued, that the resolution making the call is duly recorded in the minute book and that notice of such call was duly given to the member sued, in pursuance of these Articles, and it shall not be necessary to prove the appointment of the Directors who made such call nor any other matters whatsoever, but the proof of the matters aforesaid shall be conclusive evidence of the debt.

 

58.

A forfeited share may be sold or otherwise disposed of on such terms and in such manner as the Directors think fit, and at any time before a sale or disposition the forfeiture may be cancelled on such terms as the Directors think fit.

 

59.

A person whose shares have been forfeited shall cease to be a member of the Company in respect of the forfeited shares, but shall, notwithstanding, remain liable to pay to the Company all consideration which, at the date of forfeiture, were payable by him or her to the Company in respect of the shares, but his or her liability shall cease if and when the Company shall have received payment in full of all such consideration in respect of the shares.

 

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60.

A statement in writing that the maker of the statement is a Director or the Company Secretary, and that a share in the Company has been duly forfeited on a date stated in the statement, shall be conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the share.

 

61.

The following provisions apply in relation to a sale or other disposition of a share referred to in Article 58:

 

  61.1

the Company may receive the consideration, if any, given for the share on the sale or other disposition of it and may execute a transfer of the share in favour of the person to whom the share is sold or otherwise disposed of (the “disponee”);

 

  61.2

upon such execution, the disponee shall be registered as the holder of the share; and

 

  61.3

the disponee shall not be bound to see to the application of the purchase consideration, if any, nor shall his or her title to the share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the share.

 

62.

The provisions of these Articles as to forfeiture shall apply in the case of non-payment of any sum which, by the terms of issue of a share in the capital of the Company, becomes payable at a fixed time, whether on account of the nominal value of the share in the capital of the Company or by way of premium, as if the same had been payable by virtue of a call duly made and notified.

 

63.

The Directors may accept the surrender of any share in the capital of the Company which the Directors have resolved to have been forfeited upon such terms and conditions as may be agreed and, subject to any such terms and conditions, a surrendered share in the capital of the Company shall be treated as if it has been forfeited.

VARIATION OF COMPANY CAPITAL

 

64.

Subject to the provisions of these Articles, the Company may, by ordinary resolution and in accordance with section 83 of the Act, do any one or more of the following, from time to time:

 

  64.1

consolidate and divide all or any of its classes of shares into shares of a larger nominal value than its existing shares;

 

  64.2

subdivide its classes of shares, or any of them, into shares of a smaller nominal value, so however, that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived;

 

  64.3

increase the nominal value of any of its shares by the addition to them of any undenominated capital;

 

  64.4

reduce the nominal value of any of its shares by the deduction from them of any part of that value, subject to the crediting of the amount of the deduction to undenominated capital, other than the share premium account;

 

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  64.5

without prejudice or limitation to Articles 104 to 109 and the powers conferred on the Directors thereby, convert any undenominated capital into shares for allotment as bonus shares to holders of existing shares;

 

  64.6

increase its share capital by new shares of such amount as it thinks expedient; or

 

  64.7

cancel shares of its share capital which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled.

 

65.

Subject to the provisions of these Articles, the Company may:

 

  65.1

Without prejudice to Article 32, by special resolution, and subject to the provisions of the Act governing the variation of rights attached to classes of shares and the amendment of these Articles, convert any of its shares into Redeemable Shares; or

 

  65.2

by special resolution, and subject to the provisions of the Act (or as otherwise required or permitted by applicable law) alter or add to the Memorandum with respect to any objects, powers or other matters specified therein or alter or add to these Articles.

REDUCTION OF COMPANY CAPITAL

 

66.

The Company may, in accordance with the provisions of sections 84 to 87 of the Act, reduce its company capital in any way it thinks expedient and, without prejudice to the generality of the foregoing, may thereby:

 

  66.1

extinguish or reduce the liability on any of its shares in respect of share capital not paid up;

 

  66.2

either with or without extinguishing or reducing liability on any of its shares, cancel any paid up company capital which is lost or unrepresented by available assets; or

 

  66.3

either with or without extinguishing or reducing liability on any of its shares, pay off any paid up company capital which is in excess of the wants of the Company.

Unless the special resolution provides otherwise, a reserve arising from the reduction of company capital is to be treated for all purposes as a realised profit in accordance with section 117(9) of the Act. Nothing in this Article 66 shall, however, prejudice or limit the Company’s ability to perform or engage in any of the actions described in section 83(1) of the Act by way of ordinary resolution only.

TRANSFER OF SHARES

 

67.

Subject to the Act and to the provisions of these Articles as may be applicable, any member may transfer all or any of his shares (of any class) by an instrument of transfer in the usual common form or in any other form which the Board may from time to time approve. The instrument of transfer may be endorsed on the certificate.

 

68.

The instrument of transfer of a share shall be signed by or on behalf of the transferor and, if the share is not fully paid, by or on behalf of the transferee. The transferor shall be deemed to remain the holder of the share until the name of the transferee is entered in the Register in respect of it. All instruments of transfer may be retained by the Company.

 

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69.

The instrument of transfer of any share may be executed for and on behalf of the transferor by the Company Secretary or any other party designated by the Board for such purpose, and the Company Secretary or any other party designated by the Board for such purpose shall be deemed to have been irrevocably appointed agent for the transferor of such share or shares with full power to execute, complete and deliver in the name of and on behalf of the transferor of such share or shares all such transfers of shares held by the members in the share capital of the Company. Any document which records the name of the transferor, the name of the transferee, the class and number of shares agreed to be transferred, the date of the agreement to transfer shares and the price per share, shall, once executed by the transferor or the Company Secretary or any other party designated by the Board for such purpose as agent for the transferor, be deemed to be a proper instrument of transfer for the purposes of the Act. The transferor shall be deemed to remain the member holding the share until the name of the transferee is entered on the Register in respect thereof, and neither the title of the transferee nor the title of the transferor shall be affected by any irregularity or invalidity in the proceedings in reference to the sale should the Directors so determine.

 

70.

Subject to the Act, the Company, at its absolute discretion, may, or may procure that a subsidiary of the Company shall, pay Irish stamp duty arising on a transfer of shares on behalf of the transferee of such shares of the Company. If stamp duty resulting from the transfer of shares in the Company which would otherwise be payable by the transferee is paid by the Company or any subsidiary of the Company on behalf of the transferee, then in those circumstances, the Company shall, on its behalf or on behalf of its subsidiary (as the case may be), be entitled to (i) reimbursement of the stamp duty from the transferee, (ii) set-off the stamp duty against any dividends payable to the transferee of those shares and (iii) to the extent permitted by section 1042 of the Act, claim a first and paramount lien on the shares on which stamp duty has been paid by the Company or its subsidiary for the amount of stamp duty paid. The Company’s lien shall extend to all dividends paid on those shares.

 

71.

The Directors shall have power to permit any class of shares to be held in uncertificated form and to implement any arrangements they think fit for such evidencing and transfer which accord with such regulations and in particular shall, where appropriate, be entitled to disapply or modify all or part of the provisions in these Articles with respect to the requirement for written instruments of transfer and share certificates (if any), in order to give effect to such regulations.

 

72.

The Board may, in its absolute discretion and without assigning any reason for its decision, decline to register any transfer of any share which is not a fully-paid share. The Board may also decline to register any transfer if:

 

  72.1

the instrument of transfer is not duly stamped, if required, and lodged at the Office or any other place as the Board may from time to time specify for the purpose, accompanied by the certificate (if any) for the shares to which it relates and such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer;

 

  72.2

the instrument of transfer is in respect of more than one class of share;

 

  72.3

the instrument of transfer is in favour of more than four persons jointly;

 

  72.4

it is not satisfied that all applicable consents, authorisations, permissions or approvals of any governmental body or agency in Ireland or any other applicable jurisdiction required to be obtained under relevant law prior to such transfer have been obtained; or

 

  72.5

it is not satisfied that the transfer would not violate the terms of any agreement to which the Company (or any of its subsidiaries) and the transferor are party or subject.

 

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73.

Subject to any directions of the Board from time to time in force, the Company Secretary or any other party designated by the Board for such purpose may exercise the powers and discretions of the Board under Article 72, Article 96, Article 103 and Article 105.

 

74.

If the Board declines to register a transfer it shall, within one month after the date on which the instrument of transfer was lodged, send to the transferee notice of such refusal.

 

75.

No fee shall be charged by the Company for registering any transfer or for making any entry in the Register concerning any other document relating to or affecting the title to any share (except that the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed on it in connection with such transfer or entry).

TRANSMISSION OF SHARES

 

76.

In the case of the death of a member, the survivor or survivors, where the deceased was a joint holder, and the personal representatives of the deceased where he or she was a sole holder, shall be the only persons recognised by the Company as having any title to his or her interest in the shares.

 

77.

Nothing in Article 76 shall release the estate of a deceased joint holder from any liability in respect of any share which had been jointly held by him or her with other persons.

 

78.

Any person becoming entitled to a share in consequence of the death or bankruptcy of a member may, upon such evidence being produced as may from time to time properly be required by the Directors and subject to Article 79, elect either: (a) to be registered himself or herself as holder of the share; or (b) to have some person nominated by him or her (being a person who consents to being so registered) registered as the transferee thereof.

 

79.

The Directors shall, in either of those cases, have the same right to decline or suspend registration as they would have had in the case of a transfer of the share by that member before his or her death or bankruptcy, as the case may be.

 

80.

If the person becoming entitled as mentioned in Article 78: (a) elects to be registered himself or herself, the person shall furnish to the Company a notice in writing signed by him or her stating that he or she so elects; or (b) elects to have another person registered, the person shall testify his or her election by executing to that other person a transfer of the share.

 

81.

All the limitations, restrictions and provisions of Articles 76 to 80 shall be applicable to a notice or transfer referred to in Article 80 as if the death or bankruptcy of the member concerned had not occurred and the notice or transfer were a transfer signed by that member.

 

82.

Subject to Article 83 and Article 84, a person becoming entitled to a share by reason of the death or bankruptcy of the holder shall be entitled to the same dividends and other advantages to which he or she would be entitled if he or she were the registered holder of the share.

 

83.

A person referred to in Article 82 shall not, before being registered as a member in respect of the share, be entitled in respect of it to exercise any right conferred by membership in relation to meetings of the Company.

 

84.

The Directors may at any time serve a notice on any such person requiring the person to make the election provided for by Article 78 and, if the person does not make that election (and proceed to do, consequent on that election, whichever of the things mentioned in Article 80 is appropriate) within ninety days after the date of service of the notice, the Directors may thereupon withhold payment of all dividends, bonuses or other moneys payable in respect of the share until the requirements of the notice have been complied with.

 

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85.

The Company may charge a fee not exceeding €10 on the registration of every probate, letters of administration, certificate of death, power of attorney, notice as to stock or other instrument or order.

 

86.

The Directors may determine such procedures as they shall think fit regarding the transmission of shares in the Company held by a body corporate that are transmitted by operation of law in consequence of a merger or division.

CLOSING REGISTER OR FIXING RECORD DATE

 

87.

For the purpose of determining members entitled to notice of or to vote at any meeting of members or any adjournment thereof, or members entitled to receive payment of any dividend, or in order to make a determination of members for any other proper purpose, the Board may provide, subject to the requirements of section 174 of the Act, that the Register shall be closed for transfers at such times and for such periods, not exceeding in the whole thirty days in each year. If the Register shall be so closed for the purpose of determining members entitled to notice of, or to vote at, a meeting of members, such Register shall, subject to applicable law and Exchange rules, be so closed for at least five days immediately preceding such meeting and the record date for such determination shall be the date of the closure of the Register.

 

88.

In lieu of, or apart from, closing the Register, the Board may fix in advance a date as the record date (a) for any such determination of members entitled to notice of or to vote at a meeting of the members, which record date shall not, subject to applicable law and Exchange rules, be more than sixty days before the date of such meeting, and (b) for the purpose of determining the members entitled to receive payment of any dividend or other distribution, or in order to make a determination of members for any other proper purpose, which record date shall not, subject to applicable law and Exchange rules, be more than sixty days prior to the date of payment of such dividend or other distribution or the taking of any action to which such determination of members is relevant.

 

89.

If the Register is not so closed and no record date is fixed for the determination of members entitled to notice of or to vote at a meeting of members, the date immediately preceding the date on which notice of the meeting is deemed given under these Articles shall be the record date for such determination of members. Where a determination of members entitled to vote at any meeting of members has been made as provided in these Articles, such determination shall apply to any adjournment thereof; provided, however, that the Directors may fix a new record date of the Adjourned Meeting, if they think fit.

DIVIDENDS

 

90.

The Company in a general meeting may declare dividends, but no dividends shall exceed the amount recommended by the Directors. Any general meeting declaring a dividend and any resolution of the Directors declaring an interim dividend may direct payment of such dividend or interim dividend wholly or partly by the distribution of specific assets including paid up shares, debentures or debenture stocks of any other company or in any one or more of such ways, and the Directors shall give effect to such resolution.

 

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91.

The Directors may from time to time:

 

  91.1

pay to the members such dividends (whether as either interim dividends or final dividends) as appear to the Directors to be justified by the profits of the Company, subject to section 117 and Chapter 6 of Part 17 of the Act;

 

  91.2

before declaring any dividend, set aside out of the profits of the Company such sums as they think proper as a reserve or reserves which shall, at the discretion of the Directors, be applicable for any purpose to which the profits of the Company may be properly applied, and pending such application may, at the like discretion either be employed in the business of the Company or be held as cash or cash equivalents or invested in such investments as the Directors may lawfully determine; and

 

  91.3

without placing the profits of the Company to reserve, carry forward any profits which they may think prudent not to distribute.

 

92.

Unless otherwise specified by the Directors at the time of declaring a dividend, the dividend shall be a final dividend.

 

93.

Where the Directors specify that a dividend is an interim dividend at the time it is declared, such interim dividend shall not constitute a debt recoverable against the Company and the declaration may be revoked by the Directors at any time prior to its payment provided that the holders of the same class of share are treated equally on any revocation.

 

94.

Subject to the rights of persons, if any, entitled to shares with special rights as to dividend (and to the rights of the Company under Articles 49 to 53 and Article 96) all dividends shall be declared and paid such that shares of the same class shall rank equally irrespective of the premium credited as paid up on such shares.

 

95.

If any share is issued on terms providing that it shall rank for a dividend as from a particular date, such share shall rank for dividend accordingly.

 

96.

The Directors may deduct from any dividend payable to any member, all sums of money (if any) immediately payable by him or her to the Company on account of calls or otherwise in relation to the shares of the Company.

 

97.

The Directors when declaring a dividend or bonus may direct payment of such dividend or bonus wholly or partly by the distribution of specific assets and, in particular, paid up shares, debentures or debenture stock of any other company or in any one or more of such ways.

 

98.

Where any difficulty arises in regard to a distribution, the Directors may settle the matter as they think expedient and, in particular, may:

 

  98.1

issue fractional certificates (subject always to the restriction on the issue of fractional shares) and fix the value for distribution of such specific assets or any part of them;

 

  98.2

determine that cash payments shall be made to any members upon the footing of the value so fixed, in order to adjust the rights of all the parties; and

 

  98.3

vest any such specific assets in trustees as may seem expedient to the Directors.

 

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99.

Any dividend, interest or other moneys payable in cash in respect of any shares may be paid:

 

  99.1

by cheque or negotiable instrument sent by post directed to or otherwise delivered to the registered address of the holder, or where there are joint holders, to the registered address of that one of the joint holders who is first named on the register or to such person and to such address as the holder or the joint holders may in writing direct; or

 

  99.2

by transfer to a bank account nominated by the payee or where such an account has not been so nominated, to the account of a trustee nominated by the Company to hold such moneys,

provided that the debiting of the Company’s account in respect of the relevant amount shall be evidence of good discharge of the Company’s obligations in respect of any payment made by any such methods.

 

100.

Any such cheque or negotiable instrument referred to in Article 99 shall be made payable to the order of the person to whom it is sent.

 

101.

Any one of two or more joint holders may give valid receipts for any dividends, bonuses or other moneys payable in respect of the shares held by them as joint holders, whether paid by cheque or negotiable instrument or direct transfer.

 

102.

No dividend shall bear interest against the Company.

 

103.

If the Directors so resolve, any dividend or distribution which has remained unclaimed for twelve years from the date of its declaration shall be forfeited and cease to remain owing by the Company. The payment by the Directors of any unclaimed dividend, distribution or other moneys payable in respect of a share into a separate account shall not constitute the Company a trustee in respect thereof.

BONUS ISSUE OF SHARES

 

104.

Any capitalisation provided for in Articles 105 to 109 inclusive will not require approval or ratification by the members.

 

105.

The Directors may resolve to capitalise any part of a relevant sum (within the meaning of Article 106) by applying such sum in paying up in full unissued shares of a nominal value or nominal value and premium, equal to the sum capitalised, to be allotted and issued as fully paid bonus shares, to those members of the Company who would have been entitled to that sum if it were distributed by way of dividend (and in the same proportions).

 

106.

For the purposes of Article 105, “relevant sum” means: (a) any sum for the time being standing to the credit of the Company’s undenominated capital; (b) any of the Company’s profits available for distribution; (c) any sum representing unrealised revaluation reserves; or (d) a merger reserve or any other capital reserve of the Company.

 

107.

The Directors may in giving effect to any resolution under Article 105 make: (a) all appropriations and applications of the undivided profits resolved to be capitalised by the resolution; and (b) all allotments and issues of fully paid shares, if any, and generally shall do all acts and things required to give effect to the resolution.

 

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108.

Without limiting Article 107, the Directors may:

 

  108.1

make such provision as they think fit for the case of shares becoming distributable in fractions (and, again, without limiting the foregoing, may sell the shares represented by such fractions and distribute the net proceeds of such sale amongst the members otherwise entitled to such fractions in due proportions);

 

  108.2

authorise any person to enter, on behalf of all the members concerned, into an agreement with the Company providing for the allotment to them, respectively credited as fully paid up, of any further shares to which they may become entitled on the capitalisation concerned or, as the case may require, for the payment by the application thereto of their respective proportions of the profits resolved to be capitalised of the amounts remaining unpaid on their existing shares,

and any agreement made under such authority shall be effective and binding on all the members concerned.

 

109.

Where the Directors have resolved to approve a bona fide revaluation of all the fixed assets of the Company, the net capital surplus in excess of the previous book value of the assets arising from such revaluation may be: (a) credited by the Directors to undenominated capital, other than the share premium account; or (b) used in paying up unissued shares of the Company to be issued to members as fully paid bonus shares.

GENERAL MEETINGS – GENERAL

 

110.

Subject to Article 111, the Company shall in each year hold a general meeting as its annual general meeting in addition to any other meeting in that year, and shall specify the meeting as such in the notices calling it; and not more than 15 months shall elapse between the date of one annual general meeting of the Company and that of the next.

 

111.

The Company will hold its first annual general meeting within eighteen months of its incorporation.

 

112.

The annual general meeting shall be held in such place and at such time as the Directors shall determine.

 

113.

All general meetings of the Company other than annual general meetings shall be called extraordinary general meetings.

 

114.

The Directors may, whenever they think fit, convene an extraordinary general meeting. An extraordinary general meeting shall also be convened by the Directors on the requisition of members, or if the Directors fail to so convene an extraordinary general meeting, such extraordinary general meeting may be convened by the requisitioning members, in each case in accordance with section 178(3) to (7) of the Act.

 

115.

If at any time the number of Directors is less than two, any Director or any member that satisfies the criteria under section 178 of the Act may convene an extraordinary general meeting in the same manner as nearly as possible as that in which meetings may be convened by the Directors.

 

116.

An annual general meeting or extraordinary general meeting of the Company may be held outside of Ireland. The Company shall make, at its expense, all necessary arrangements to ensure that members can by technological means participate in any such meeting without leaving Ireland.

 

D-35


117.

A general meeting of the Company may be held in two or more venues (whether inside or outside of Ireland) at the same time using any technology that provides members, as a whole, with a reasonable opportunity to participate, and such participation shall be deemed to constitute presence in person at the meeting.

NOTICE OF GENERAL MEETINGS

 

118.

The only persons entitled to notice of general meetings of the Company are:

 

  118.1

the members;

 

  118.2

the personal representatives of a deceased member, which member would but for his death be entitled to vote;

 

  118.3

the assignee in bankruptcy of a bankrupt member of the Company (being a bankrupt member who is entitled to vote at the meeting);

 

  118.4

the Directors and Company Secretary; and

 

  118.5

unless the Company is entitled to and has availed itself of the audit exemption under the Act, the Auditors (who shall also be entitled to receive other communications relating to any general meeting which a member is entitled to receive).

 

119.

Subject to the provisions of the Act allowing a general meeting to be called by shorter notice, an annual general meeting and an extraordinary general meeting called for the passing of a special resolution shall be called by at least twenty-one days’ notice. Any other extraordinary general meeting shall also be called by at least twenty-one days’ notice, except that it may be called by fourteen days’ notice where:

 

  119.1

all members, who hold shares that carry rights to vote at the meeting, are permitted to vote by electronic means at the meeting; and

 

  119.2

a special resolution reducing the period of notice to fourteen days has been passed at the immediately preceding annual general meeting, or at a general meeting held since that meeting.

 

120.

Any notice convening a general meeting shall specify the time and place of the meeting and, in the case of special business, the general nature of that business and, in reasonable prominence, that a member entitled to attend, speak, ask questions and vote is entitled to appoint a proxy to attend, speak, ask questions and vote in his place and that a proxy need not be a member of the Company. Every notice shall specify such other details as are required by applicable law or the relevant code, rules and regulations applicable to the listing of the shares on any Exchange. Subject to any restrictions imposed on any shares, the notice shall be given to all the members and to the Directors and Auditors.

 

121.

The accidental omission to give notice of a meeting to, or the non-receipt of notice of a meeting by, any person entitled to receive notice shall not invalidate the proceedings at the meeting.

 

122.

In cases where instruments of proxy are sent out with notices, the accidental omission to send such instrument of proxy to, or the non-receipt of such instrument of proxy by, any person entitled to receive such notice shall not invalidate any resolution passed or any proceeding at any such meeting. A member present, either in person or by proxy, at any general meeting of the Company or of the holders of any class of shares in the Company will b