SBC Medical Group Holdings Inc 8-K, filed Jun 22, 2023

SBC Medical Group Holdings Inc (SBC)

8-K 2023-06-22 For: 2023-06-21

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Added on April 09, 2026

About this 8-K

SBC Medical Group Holdings Inc filed this 8-K on June 22, 2023, reporting on events of June 21, 2023.

Items reported

Item 1.01: Entered into a material agreement
Item 9.01: Financial statements and exhibits

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	☐	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))

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 Redeemable Warrant	PTWOU	The Nasdaq Stock Market LLC
Class A Common Stock, $0.0001 par value per share	PTWO	The Nasdaq Stock Market LLC
Redeemable Warrants, each warrant exercisable for one share of Class A Common Stock at an exercise price of $11.50 per share	PTWOW	The Nasdaq Stock Market LLC

Exhibit No.		Description
2.1†		Amended and Restated Agreement and Plan of Merger, dated June 21, 2023, by and among Pono, Merger Sub, SBC, Yoshiyuki Aikawa, and the Seller Representative.
104		Cover Page Interactive Data File (embedded within the Inline XBRL document)

	PONO CAPITAL TWO, INC.

Date: June 22, 2023	By:	/s/ Darryl Nakamoto
		Darryl Nakamoto
		Chief Executive Officer

Article I.	Merger.		3
Section 1.01		Merger.	3
Section 1.02		Effective Time.	3
Section 1.03		Effect of the Merger.	3
Section 1.04		Tax Treatment.	3
Section 1.05		Certificate of Incorporation and Bylaws.	4
Section 1.06		Directors and Officers of the Surviving Corporation.	4
Section 1.07		Merger Consideration.	4
Section 1.08		Conversion of Company Stock and Exchange of Other Company Securities.	4
Section 1.09		Treasury Stock.	5
Section 1.10		Rights Cease to Exist.	5
Section 1.11		Dissenting Shares.	5
Section 1.12		Surrender of Company Securities and Disbursement of Merger Consideration.	5
Section 1.13		Effect of Transaction on Merger Sub Stock.	7
Section 1.14		Closing Calculations.	7
Section 1.15		Merger Consideration Adjustment.	8
Section 1.16		Taking of Necessary Action; Further Action.	10
Section 1.17		Appraisal and Dissenter’s Rights.	10
Section 1.18		Escrow.	11
Section 1.19		Amended Purchaser Certificate of Incorporation.	11
Section 1.20		Withholding.	12

Article II.	Closing		12
Section 2.01		Closing.	12

Article III.	Representations and Warranties of the Purchaser		12
Section 3.01		Organization and Standing.	12
Section 3.02		Authorization; Binding Agreement.	13
Section 3.03		Governmental Approvals.	13
Section 3.04		Non-Contravention.	14
Section 3.05		Capitalization.	14
Section 3.06		SEC Filings and Purchaser Financials.	15
Section 3.07		Absence of Certain Changes.	16
Section 3.08		Compliance with Laws.	16
Section 3.09		Actions; Orders; Permits.	16
Section 3.10		Litigation.	16
Section 3.11		Taxes and Returns.	17
Section 3.12		Employees and Employee Benefit Plans.	17
Section 3.13		Properties.	17
Section 3.14		Material Contracts.	17
Section 3.15		Transactions with Affiliates.	18
Section 3.16		Merger Sub Activities.	18
Section 3.17		Investment Company Act.	18
Section 3.18		Finders and Brokers.	18
Section 3.19		Ownership of Stockholder Merger Consideration.	19
Section 3.20		Certain Business Practices.	19

Section 3.21		Insurance.	19
Section 3.22		Purchaser Trust Account.	20
Section 3.23		Independent Investigation.	20

Article IV.	Representations and Warranties of the Company		20
Section 4.01		Organization and Standing.	20
Section 4.02		Authorization; Binding Agreement.	21
Section 4.03		Capitalization.	21
Section 4.04		Subsidiaries and Target Companies.	23
Section 4.05		Governmental Approvals.	23
Section 4.06		Non-Contravention.	24
Section 4.07		Financial Statements.	24
Section 4.08		Absence of Certain Changes.	26
Section 4.09		Compliance with Laws.	26
Section 4.10		Company Permits.	26
Section 4.11		Litigation.	26
Section 4.12		Material Contracts.	27
Section 4.13		Intellectual Property.	29
Section 4.14		Taxes and Returns.	32
Section 4.15		Real Property.	35
Section 4.16		Personal Property.	35
Section 4.17		Title to and Sufficiency of Assets.	35
Section 4.18		Employee Matters.	36
Section 4.19		Benefit Plans.	37
Section 4.20		Environmental Matters.	40
Section 4.21		Transactions with Related Persons.	41
Section 4.22		Insurance.	41
Section 4.23		Books and Records.	42
Section 4.24		Top Customers and Suppliers.	42
Section 4.25		Certain Business Practices.	42
Section 4.26		Investment Company Act.	43
Section 4.27		Finders and Brokers.	43
Section 4.28		Independent Investigation.	43
Section 4.29		Information Supplied.	44
Section 4.30		Disclosure.	44

Article V.	Covenants		45
Section 5.01		Access and Information.	45
Section 5.02		Conduct of Business of the Company.	45
Section 5.03		Conduct of Business of the Purchaser.	48
Section 5.04		Annual and Interim Financial Statements.	51
Section 5.05		Purchaser Public Filings.	51
Section 5.06		No Solicitation.	52
Section 5.07		No Trading.	53
Section 5.08		Notification of Certain Matters.	53
Section 5.09		Efforts.	53
Section 5.10		Tax Matters.	55
Section 5.11		Further Assurances.	56
Section 5.12		The Proxy Statement.	56

Section 5.13		Company Stockholder Meeting.	58
Section 5.14		Public Announcements.	58
Section 5.15		Confidential Information.	59
Section 5.16		Documents and Information.	60
Section 5.17		Post-Closing Board of Directors and Executive Officers.	61
Section 5.18		Indemnification of Directors and Officers; Tail Insurance.	61
Section 5.19		Trust Account Proceeds.	62
Section 5.20		Roadshow Presentations.	62
Section 5.21		PCAOB Financial Statements.	62
Section 5.22		Sponsor Issuance.	62
Section 5.23		Restructuring.	63
Section 5.24		Company Disclosure Schedules.	63

Article VI.	No Survival		63
Section 6.01		No Survival.	63

Article VII.	Closing Conditions		64
Section 7.01		Conditions to Each Party’s Obligations.	64
Section 7.02		Conditions to Obligations of the Company.	65
Section 7.03		Conditions to Obligations of the Purchaser.	66
Section 7.04		Frustration of Conditions.	68

Article VIII.	TERMINATION AND EXPENSES		68
Section 8.01		Termination.	68
Section 8.02		Effect of Termination.	70
Section 8.03		Fees and Expenses.	70

Article IX.	Waivers and Releases		71
Section 9.01		Waiver of Claims Against Trust.	71

Article X.	Miscellaneous		72
Section 10.01		Notices.	72
Section 10.02		Binding Effect; Assignment.	73
Section 10.03		Third Parties.	74
Section 10.04		Governing Law; Jurisdiction.	74
Section 10.05		WAIVER OF JURY TRIAL.	74
Section 10.06		Specific Performance.	74
Section 10.07		Severability.	75
Section 10.08		Amendment.	75
Section 10.09		Waiver.	75
Section 10.10		Entire Agreement.	75
Section 10.11		Interpretation.	76
Section 10.12		Counterparts.	76
Section 10.13		Purchaser Representative.	77
Section 10.14		Seller Representative.	78
Section 10.15		Legal Representation.	80
Section 10.16		Exhibits.	81

Article XI.	Definitions		81
Section 11.01		Certain Definitions.	81
Section 11.02		Section References.	93

Exhibit A	Form of Voting Agreement
Exhibit B	Form of the Purchaser Support Agreement
Exhibit C	Form of Lock-Up Agreement
Exhibit D	Form of Non-Competition and Non-Solicitation Agreement
Exhibit E	Form of Registration Rights Agreement

	(xvii)	adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;

	(xviii)	voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) not referenced in another subsection of this Section 5.02(b) in excess of $5,000,000 individually or $10,000,000 in the aggregate other than pursuant to the terms of a Company Material Contract or Company Benefit Plan;

	(xix)	sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;

	(xx)	enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company other than this Agreement or any of the Ancillary Documents;

	(xxi)	take any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;

	(xxii)	accelerate the collection of any trade receivables or delay the payment of trade payables or any other liabilities other than in the ordinary course of business consistent with past practice;

	(xxiii)	enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent with past practice); or

	(xxiv)	authorize or agree to do any of the foregoing actions;

		provided, that any actions reasonably taken in good faith by the Company or the other Target Companies to the extent reasonably believed to be necessary to comply with Laws (including orders of Governmental Authorities) related to COVID-19 shall be deemed not to constitute a breach of the requirements set forth under this Section 5.02. The Company shall notify the Purchaser in writing of any such actions taken in accordance with the foregoing proviso and shall use commercially reasonable efforts to mitigate any negative effects of such actions on the business of the Target Companies, in consultation with the Purchaser whenever practicable.

	(i)	amend, waive or otherwise change, in any respect, its Organizational Documents except as required by applicable Law;

	(ii)	authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its equity securities or other security interests of any class and any other equity-based awards, other than the issuance of the Purchaser securities issuable upon conversion or exchange of outstanding Purchaser securities in accordance with their terms, or engage in any hedging transaction with a third Person with respect to such securities;

	(iii)	split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its shares or other equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;

	(iv)	incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $100,000 individually or $250,000 in the aggregate, make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness, Liability or obligation of any Person (provided, that this Section 5.03(b)(iv) shall not prevent the Purchaser from borrowing funds necessary to finance its ordinary course administrative costs and expenses and Expenses incurred in connection with the consummation of the Merger and the other transactions contemplated by this Agreement (including the costs and expenses necessary for an Extension (such expenses, “*Extension Expenses*”), up to aggregate additional Indebtedness during the Interim Period of $1,500,000);

	(v)	make, change, or rescind any material election relating to Taxes, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, file any amended Tax Return or surrender or forfeit any right to claim a Tax refund, enter into any Tax allocation, Tax sharing, Tax indemnity or other closing agreement related to Taxes, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law or in compliance with GAAP;

	(vi)	amend, waive or otherwise change the Trust Agreement in any manner adverse to the Purchaser;

	(vii)	terminate, waive or assign any material right under any Purchaser Material Contract;

	(viii)	fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;

	(ix)	establish any Subsidiary or enter into any new line of business;

	(x)	fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;

	(xi)	revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP and after consulting the Purchaser’s outside auditors;

	(xii)	waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the Purchaser or its Subsidiary) not in excess of $100,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, unless such amount has been reserved in the Purchaser Financials;

	(xiii)	acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business;

	(xiv)	make capital expenditures in excess of $100,000 individually for any project (or set of related projects) or $250,000 in the aggregate (excluding for the avoidance of doubt, incurring any Expenses);

	(xv)	adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than with respect to the Merger);

	(xvi)	voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $100,000 individually or $250,000 in the aggregate (excluding the incurrence of any Expenses) other than pursuant to the terms of a Contract in existence as of the Agreement Date or entered into in the ordinary course of business or in accordance with the terms of this Section 5.03 during the Interim Period;

	(xvii)	sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;

	(xviii)	enter into any agreement, understanding or arrangement with respect to the voting of the Purchaser Securities;

	(xix)	take any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement; or

	(xx)	authorize or agree to do any of the foregoing actions;

		provided, that any actions reasonably taken in good faith by the Purchaser or its Subsidiaries to the extent reasonably believed to be necessary to comply with Laws (including orders of Governmental Authorities) related to COVID-19 shall be deemed not to constitute a breach of the requirements set forth under this Section 5.03. The Purchaser shall notify the Company in writing of any such actions taken in accordance with the foregoing proviso and shall use commercially reasonable efforts to mitigate any negative effects of such actions on the Purchaser and its Subsidiaries.

	(a)	For purposes of this Agreement, (i) an “*Acquisition Proposal” means any inquiry, proposal or offer, or any indication of interest in making an offer or proposal, from any Person or group at any time relating to an Alternative Transaction, and (ii) an “Alternative Transaction*” means (A) with respect to the Company and its Affiliates, a transaction (other than the transactions contemplated by this Agreement) concerning the sale of (x) all or any material part of the business or assets of the Target Companies (other than in the ordinary course of business consistent with past practice) or (y) any of the shares or other equity interests or profits of the Target Companies, in any case, whether such transaction takes the form of a sale of shares or other equity interests, assets, merger, consolidation, issuance of debt securities, management Contract, joint venture or partnership, or otherwise and (B) with respect to the Purchaser and its Affiliates, a transaction (other than the transactions contemplated by this Agreement) concerning a Business Combination involving Purchaser.

	(b)	During the Interim Period, in order to induce the other Parties to continue to commit to expend management time and financial resources in furtherance of the transactions contemplated hereby, each Party shall not, and shall cause its Representatives to not, without the prior written consent of the Company and the Purchaser, directly or indirectly, (i) solicit, assist, initiate or facilitate the making, submission or announcement of, or intentionally encourage, any Acquisition Proposal, (ii) furnish any non-public information regarding such Party or its Affiliates or their respective businesses, operations, assets, Liabilities, financial condition, prospects or employees to any Person or group (other than a Party to this Agreement or their respective Representatives) in connection with or in response to an Acquisition Proposal, (iii) engage or participate in discussions or negotiations with any Person or group with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (iv) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, any Acquisition Proposal, (v) negotiate or enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal, or (vi) release any third Person from, or waive any provision of, any confidentiality agreement to which such Party is a party.

	(c)	Each Party shall notify the others as promptly as practicable (and in any event within 48 hours) in writing of the receipt by such Party or any of its Representatives of (i) any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations regarding or constituting any Acquisition Proposal or any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations that could be expected to result in an Acquisition Proposal, and (ii) any request for non-public information relating to such Party or its Affiliates in connection with any Acquisition Proposal, specifying in each case, the material terms and conditions thereof (including a copy thereof if in writing or a written summary thereof if oral) and the identity of the party making such inquiry, proposal, offer or request for information. Each Party shall keep the others promptly informed of the status of any such inquiries, proposals, offers or requests for information. During the Interim Period, each Party shall, and shall cause its Representatives to, immediately cease and cause to be terminated any solicitations, discussions or negotiations with any Person with respect to any Acquisition Proposal and shall, and shall direct its Representatives to, cease and terminate any such solicitations, discussions or negotiations.

	(b)	In furtherance and not in limitation of Section 5.09(a), to the extent required under any Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (“*Antitrust Laws*”), each Party hereto agrees to make any required filing or application under Antitrust Laws, as applicable, at such Party’s sole cost and expense subject to the final sentence of Section 5.09(a), with respect to the transactions contemplated hereby as promptly as practicable, to supply as promptly as reasonably practicable any additional information and documentary material that may be reasonably requested pursuant to Antitrust Laws and to take all other actions reasonably necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under Antitrust Laws as soon as practicable, including by requesting early termination of the waiting period provided for under the Antitrust Laws. Each Party shall, in connection with its efforts to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under any Antitrust Law, use its commercially reasonable efforts to: (i) cooperate in all respects with each other Party or its Affiliates in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private Person; (ii) keep the other Parties reasonably informed of any communication received by such Party or its Representatives from, or given by such Party or its Representatives to, any Governmental Authority and of any communication received or given in connection with any proceeding by a private Person, in each case regarding any of the transactions contemplated by this Agreement; (iii) permit a Representative of the other Parties and their respective outside counsel to review any communication given by it to, and consult with each other in advance of any meeting or conference with, any Governmental Authority or, in connection with any proceeding by a private Person, with any other Person, and to the extent permitted by such Governmental Authority or other Person, give a Representative or Representatives of the other Parties the opportunity to attend and participate in such meetings and conferences; (iv) in the event a Party’s Representative is prohibited from participating in or attending any meetings or conferences, the other Parties shall keep such Party promptly and reasonably apprised with respect thereto; and (v) use commercially reasonable efforts to cooperate in the filing of any memoranda, white papers, filings, correspondence or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority.

	(c)	As soon as reasonably practicable following the Agreement Date, the Parties shall reasonably cooperate with each other and use (and shall cause their respective Affiliates to use) their respective commercially reasonable efforts to prepare and file with Governmental Authorities requests for approval of the transactions contemplated by this Agreement and shall use all commercially reasonable efforts to have such Governmental Authorities approve the transactions contemplated by this Agreement. Each Party shall give prompt written notice to the other Parties if such Party or any of its Representatives receives any notice from such Governmental Authorities in connection with the transactions contemplated by this Agreement, and shall promptly furnish the other Parties with a copy of such Governmental Authority notice. If any Governmental Authority requires that a hearing or meeting be held in connection with its approval of the transactions contemplated hereby, whether prior to the Closing or after the Closing, each Party shall arrange for Representatives of such Party to be present for such hearing or meeting. If any objections are asserted with respect to the transactions contemplated by this Agreement under any applicable Law or if any Action is instituted (or threatened to be instituted) by any applicable Governmental Authority or any private Person challenging any of the transactions contemplated by this Agreement or any Ancillary Document as violative of any applicable Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby or thereby, the Parties shall use their commercially reasonable efforts to resolve any such objections or Actions so as to timely permit consummation of the transactions contemplated by this Agreement and the Ancillary Documents, including in order to resolve such objections or Actions which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the transactions contemplated hereby or thereby. In the event any Action is instituted (or threatened to be instituted) by a Governmental Authority or private Person challenging the transactions contemplated by this Agreement, or any Ancillary Document, the Parties shall, and shall cause their respective Representatives to, reasonably cooperate with each other and use their respective commercially reasonable efforts to contest and resist any such Action and to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement or the Ancillary Documents.

	(a)	Each of the Parties shall use its commercially reasonable efforts to cause the Merger to qualify as a “reorganization” within the meaning of Section 368(a) of the Code. None of the Parties shall (and each of the Parties shall cause their respective Subsidiaries not to) take any action, or fail to take any action, that could reasonably be expected to cause the Merger to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code. The Parties intend to report and, except to the extent otherwise required by Law, shall report, for federal income tax purposes, the Merger as a “reorganization” within the meaning of Section 368(a) of the Code.

	(b)	If, in connection with the preparation and filing of the Proxy Statement, the SEC requests or requires a tax opinion be prepared and submitted, the Purchaser and the Company shall deliver to Anthony customary Tax representation letters satisfactory to counsel, dated and executed as of the date the Proxy Statement is declared effective by the SEC and such other date(s) as determined reasonably necessary by such counsel in connection with the preparation and filing of the Proxy Statement, and, if required, Anthony shall furnish an opinion, subject to customary assumptions and limitations, to the effect that the Merger should qualify as a “reorganization” within the meaning of Section 368(a) of the Code. Notwithstanding anything to the contrary in this Agreement, Loeb shall not be required to provide any opinion to any party regarding the Merger.

	(c)	Each of the Parties shall (and shall cause their respective Affiliates to) cooperate fully, as and to the extent reasonably requested by another party, in connection with the filing of relevant Tax Returns, and any Tax proceeding, audit or examination. Such cooperation shall include the retention and (upon the other party’s request) the provision (with the right to make copies) of records and information reasonably relevant to any Tax proceeding, audit or examination, making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.

	(b)	Purchaser shall take any and all reasonable and necessary actions required to satisfy the requirements of the Securities Act, the Exchange Act and other applicable Laws in connection with the Proxy Statement, the Purchaser Special Meeting and the Redemption. Each of the Purchaser and the Company shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees, upon reasonable advance notice, available to the Company, the Purchaser and, after the Closing, the Purchaser Representative, and their respective Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Proxy Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it for use in the Proxy Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. The Purchaser shall amend or supplement the Proxy Statement and cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to Purchaser stockholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and the Purchaser’s Organizational Documents; provided, however, that the Purchaser shall not amend or supplement the Proxy Statement without prior consultation with the Company as is reasonable under the circumstances.

	(c)	Purchaser, with the assistance of the other Parties, shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable efforts to cause the Proxy Statement to “clear” comments from the SEC and become effective. The Purchaser shall provide the Company with copies of any written comments, and shall inform the Company of any material oral comments, that Purchaser or its Representatives receive from the SEC or its staff with respect to the Proxy Statement, the Purchaser Special Meeting and the Redemption promptly after the receipt of such comments and shall give the Company and its counsel a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments, and the Purchaser shall consider any such comments timely made in good faith under the circumstances.

	(d)	As soon as practicable following the Proxy Statement “clearing” comments from the SEC and becoming effective, the Purchaser shall distribute the Proxy Statement to Purchaser’s stockholders and the Company Stockholders, and, pursuant thereto, shall call the Purchaser Special Meeting in accordance with the Securities Act for a date no later than thirty (30) days following the effectiveness of the Proxy Statement.

	(e)	Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the Purchaser’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling and holding of the Purchaser Special Meeting and the Redemption. The Purchaser shall apply for, and shall take commercially reasonable actions to cause, the Purchaser Common Stock to be issued in connection with the Merger to be approved for listing on Nasdaq as of the Closing.

	(a)	The Parties shall take all necessary action, including causing the directors of the Purchaser to resign, so that effective as of the Closing, the Purchaser’s board of directors (the “*Post-Closing Purchaser Board*”) will consist of five (5) individuals. Immediately after the Closing, the Parties shall take all necessary action to designate and appoint to the Post-Closing Purchaser Board, three (3) persons designated prior to the Closing by the Company, at least two (2) of whom are required to qualify as independent directors under Nasdaq rules; one (1) person designated prior to the Closing by Purchaser; and one (1) person mutually agreed on prior to the Closing by the Company and the Purchaser who is required to qualify as an independent director under Nasdaq rules. At or prior to the Closing, the Purchaser will provide each member of the Post-Closing Purchaser Board with a customary director indemnification agreement, in form and substance reasonably acceptable to such member of the Post-Closing Purchaser Board.

	(b)	The Parties shall take all action necessary, including causing the executive officers of the Purchaser to resign, so that the individuals serving as the chief executive officer and chief financial officer, respectively, of the Purchaser immediately after the Closing will be the same individuals (in the same office) as that of the Company immediately prior to the Closing (unless, at its sole discretion, the Company desires to appoint another qualified person to either such role, in which case, such other person identified by the Company shall serve in such role).

	(a)	Required Purchaser Stockholder Approval. The Purchaser Stockholder Approval of Matters that are submitted to the vote of the stockholders of the Purchaser at the Purchaser Special Meeting in accordance with the Proxy Statement shall have been approved by the requisite vote of the stockholders of the Purchaser at the Purchaser Special Meeting in accordance with the Purchaser’s Organizational Documents, applicable Law and the Proxy Statement (the “*Required Purchaser Stockholder Approval*”).

	(b)	Required Company Stockholder Approval. Written consents representing the requisite vote of the Company Stockholders (including any separate class or series vote that is required, whether pursuant to the Company’s Organizational Documents, any stockholder agreement or otherwise) shall have been obtained, as necessary, to authorize, approve and consent to, the execution, delivery and performance of this Agreement and each of the Ancillary Documents to which the Company is or is required to be a party or bound, and the consummation of the transactions contemplated hereby and thereby, including the Merger (the “*Required Company Stockholder Approval*”).

	(c)	Antitrust Laws. Any waiting period (and any extension thereof) applicable to the consummation of this Agreement under any Antitrust Laws shall have expired or been terminated.

	(d)	Requisite Regulatory Approvals. All Consents required to be obtained from or made with any Governmental Authority in order to consummate the transactions contemplated by this Agreement shall have been obtained or made.

	(e)	Requisite Consents. The Consents required to be obtained from or made with any third Person (other than a Governmental Authority) in order to consummate the transactions contemplated by this Agreement that are set forth in Section 7.01(e) of the Agreement Schedules shall have each been obtained or made.

	(f)	No Adverse Law; Order, Terms or Conditions. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) or Order that is then in effect and which has the effect of making the transactions or agreements contemplated by this Agreement illegal or which otherwise prevents or prohibits consummation of the transactions contemplated by this Agreement and no Governmental Authority shall have imposed any terms or conditions on the Restructuring which would reasonably be expected to materially impact the operations of the Company, the Target Companies following the completion of the Restructuring.

	(g)	Net Tangible Assets Test. Upon the Closing, after giving effect to the Redemption, the Purchaser shall have net tangible assets of at least $5,000,001.

	(h)	Appointment to the Board. The members of the Post-Closing Purchaser Board shall have been elected or appointed as of the Closing consistent with the requirements of Section 5.17.

	(i)	Proxy Statement. The SEC shall have completed commenting on the Proxy Statement and it shall have been declared effective, and no stop order or similar order shall be in effect with respect to the Proxy Statement.

	(j)	Nasdaq Listing. The shares of the Purchaser Common Stock issued as Merger Consideration shall have been approved for listing on Nasdaq, subject to official notice of issuance.

	(k)	Restructuring. The Restructuring shall have been completed and the Purchaser shall have received evidence of such completion in form and substance reasonably satisfactory to the Purchaser.

	(a)	Representations and Warranties. All of the representations and warranties of the Purchaser set forth in this Agreement and in any certificate delivered by or on behalf of the Purchaser pursuant hereto shall be true and correct on and as of the Agreement Date and on and as of the Closing Date as if made on the Closing Date, except for (i) those representations and warranties that address matters only as of a particular date (which representations and warranties shall have been accurate as of such date), and (ii) any failures to be true and correct that (without giving effect to any qualifications or limitations as to materiality or Material Adverse Effect), individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on, or with respect to, the Purchaser.

	(b)	Agreements and Covenants. The Purchaser shall have performed in all material respects all of the Purchaser’s obligations and complied in all material respects with all of the Purchaser’s agreements and covenants under this Agreement to be performed or complied with by it on or prior to the Closing Date.

	(c)	No Purchaser Material Adverse Effect. No Material Adverse Effect shall have occurred with respect to the Purchaser since the Agreement Date which is continuing and uncured.

	(d)	Liabilities. There shall be no Liabilities owed or payable by the Purchaser to the Purchaser Representative or any of the Affiliates of the Purchaser Representative.

	(e)	Closing Deliveries.

	(i)	Officer Certificate. The Purchaser shall have delivered to the Company a certificate, dated the Closing Date, signed by an executive officer of the Purchaser in such capacity, certifying as to the satisfaction of the conditions specified in Section 7.02(a), Section 7.02(b), Section 7.02(c) and Section 7.02(d).

	(ii)	Secretary Certificate. The Purchaser shall have delivered to the Company a certificate from its secretary or other executive officer certifying as to, and attaching, (A) copies of the Purchaser’s Organizational Documents as in effect as of the Closing Date (after giving effect to the Conversion), (B) the resolutions of the Purchaser’s board of directors authorizing and approving the execution, delivery and performance of this Agreement and each of the Ancillary Documents to which it is a party or by which it is bound, and the consummation of the transactions contemplated hereby and thereby, (C) evidence that the Required Purchaser Stockholder Approval has been obtained and (D) the incumbency of officers authorized to execute this Agreement or any Ancillary Document to which the Purchaser is or is required to be a party or otherwise bound.

	(iii)	Good Standing. The Purchaser shall have delivered to the Company a good standing certificate (or similar documents applicable for such jurisdictions) for the Purchaser certified as of a date no earlier than thirty (30) days prior to the Closing Date from the proper Governmental Authority of the Purchaser’s jurisdiction of organization and from each other jurisdiction in which the Purchaser is qualified to do business as a foreign entity as of the Closing, in each case to the extent that good standing certificates or similar documents are generally available in such jurisdictions.

	(iv)	Escrow Agreement. The Company shall have received a copy of the Escrow Agreement, duly executed by the Purchaser and the Escrow Agent.

	(v)	Registration Rights Agreement. The Company shall have received a copy of the Registration Rights Agreement, duly executed by the Purchaser and the persons as set forth in the Agreement Schedules, once finalized.

	(vi)	Resignations Subject to the requirements of Section 5.17, the Company shall have received written resignations, effective as of the Closing, of each of the directors and officers of the Purchaser and Merger Sub as requested by the Company prior to the Closing.

	(a)	Representations and Warranties. All of the representations and warranties of the Company and Mr. Aikawa set forth in this Agreement and in any certificate delivered by or on behalf of the Company pursuant hereto shall be true and correct on and as of the Agreement Date and on and as of the Closing Date as if made on the Closing Date, except for (i) those representations and warranties that address matters only as of a particular date (which representations and warranties shall have been accurate as of such date), and (ii) any failures to be true and correct that (without giving effect to any qualifications or limitations as to materiality or Material Adverse Effect), individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on, or with respect to, the Target Companies, taken as a whole.

	(b)	Agreements and Covenants. The Company shall have performed in all material respects all of its obligations and complied in all material respects with all of its agreements and covenants under this Agreement to be performed or complied with by it on or prior to the Closing Date.

	(c)	No Material Adverse Effect. No Material Adverse Effect shall have occurred with respect to the Target Companies taken as a whole since the Agreement Date which is continuing and uncured.

	(d)	Closing Deliveries.

	(i)	Officer Certificate. The Purchaser shall have received a certificate from the Company, dated as the Closing Date, signed by an executive officer of the Company in such capacity, certifying as to the satisfaction of the conditions specified in Section 7.03(a), Section 7.03(b) and Section 7.03(c).

	(ii)	Secretary Certificate. The Company shall have delivered to the Purchaser a certificate executed by the Company’s secretary certifying as to the validity and effectiveness of, and attaching, (A) copies of the Company’s Organizational Documents as in effect as of the Closing Date (immediately prior to the Effective Time), (B) the requisite resolutions of the Company’s board of directors authorizing and approving the execution, delivery and performance of this Agreement and each Ancillary Document to which the Company is or is required to be a party or bound, and the consummation of the Merger and the other transactions contemplated hereby and thereby, and the adoption of the Surviving Corporation Organizational Documents, and recommending the approval and adoption of the same by the Company Stockholders, (C) evidence that the Required Company Stockholder Approval has been obtained and (D) the incumbency of officers of the Company authorized to execute this Agreement or any Ancillary Document to which the Company is or is required to be a party or otherwise bound.

	(iii)	Good Standing. The Company shall have delivered to the Purchaser good standing certificates (or similar documents applicable for such jurisdictions) for each Target Company certified as of a date no earlier than thirty (30) days prior to the Closing Date from the proper Governmental Authority of the Target Company’s jurisdiction of organization and from each other jurisdiction in which the Target Company is qualified to do business as a foreign corporation or other entity as of the Closing, in each case to the extent that good standing certificates or similar documents are generally available in such jurisdictions.

	(iv)	Certified Charter. The Company shall have delivered to the Purchaser a copy of the Company Charter, as in effect as of immediately prior to the Effective Time, certified by the Secretary of State of the State of Delaware as of a date no more than ten (10) Business Days prior to the Closing Date.

	(v)	Employment Agreements. The Purchaser shall have received employment agreements, in each case effective as of the Closing, in the form and substance reasonably acceptable to the Purchaser and the counterparty thereto, between each of the persons set forth in Section 7.03(d)(v) of the Agreement Schedules and the applicable Target Company or the Purchaser, as noted in Section 7.03(d)(v) of the Agreement Schedules, with each such employment agreement duly executed by the parties thereto.

	(vi)	Lock-Up Agreement. The Company shall have delivered to the Purchaser copies of the Lock-up Agreement duly executed by the Significant Company Holders.

	(vii)	Non-Competition Agreements. The Company shall have delivered to the Purchaser copies of the Non-Competition Agreements duly executed by each Significant Company Holder and the Seller Representative.

	(viii)	Company Convertible Securities. The Purchaser shall have received evidence reasonably acceptable to the Purchaser that the Company shall have terminated, extinguished and cancelled in full any other outstanding Company Convertible Securities or commitments therefor, or such Company Convertible Securities which are options to acquire shares of Company Common Stock shall have been exchanged for options to acquire stock of the Purchaser as set forth herein.

	(ix)	Resignations. Subject to the requirements of Section 5.17, the Purchaser shall have received written resignations, effective as of the Closing, of each of the directors and officers of the Company as requested by the Purchaser prior to the Closing.

	(x)	Termination of Certain Contracts. The Purchaser shall have received evidence reasonably acceptable to the Purchaser that the Contracts involving the Target Companies and/or Company Security Holders or other Related Persons set forth in Section 7.03(d)(x) of the Agreement Schedules shall have been terminated with no further obligation or Liability of the Target Company thereunder.

	(xi)	Escrow Agreement. The Purchaser shall have received a copy of the Escrow Agreement duly executed by the Company and the Escrow Agent.

	(xii)	Registration Rights Agreement. The Purchaser shall have received a copy of the Registration Rights Agreement, duly executed by the Company and persons as set forth in the Agreement Schedules, once finalized.

	(a)	by mutual written consent of the Purchaser and the Company;

	(b)	by written notice by the Purchaser or the Company if any of the conditions to the Closing set forth in Article VII have not been satisfied or waived by December 31, 2023 (the “*Outside Date”); provided, however*, the right to terminate this Agreement under this Section 8.01(b) shall not be available to a Party if the breach or violation by such Party or its Affiliates of any representation, warranty, covenant or obligation under this Agreement was the cause of, or resulted in, the failure of the Closing to occur on or before the Outside Date;

	(c)	by written notice by either the Purchaser or the Company if a Governmental Authority of competent jurisdiction shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement, and such Order or other action has become final and non-appealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.01(c) shall not be available to a Party if the failure by such Party or its Affiliates to comply with any provision of this Agreement has been a substantial cause of, or substantially resulted in, such action by such Governmental Authority;

	(d)	by written notice by the Company to Purchaser, if (i) there has been a material breach by the Purchaser of any of its representations, warranties, covenants or agreements contained in this Agreement, or if any representation or warranty of the Purchaser shall have become untrue or inaccurate, in any case, which would result in a failure of a condition set forth in Section 7.02(a) or Section 7.02(b) to be satisfied (treating the Closing Date for such purposes as the Agreement Date or, if later, the date of such breach), and (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) days after written notice of such breach or inaccuracy is provided to the Purchaser or (B) the Outside Date; provided, that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.01(d) if at such time the Company is in material uncured breach of this Agreement;

	(e)	by written notice by the Purchaser to the Company, if (i) there has been a material breach by the Company of any of its representations, warranties, covenants or agreements contained in this Agreement, or if any representation or warranty of such Parties shall have become untrue or inaccurate, in any case, which would result in a failure of a condition set forth in Section 7.03(a) or Section 7.03(b) to be satisfied (treating the Closing Date for such purposes as the Agreement Date or, if later, the date of such breach), and (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) days after written notice of such breach or inaccuracy is provided to the Company or (B) the Outside Date; provided, that the Purchaser shall not have the right to terminate this Agreement pursuant to this Section 8.01(e) if at such time the Purchaser is in material uncured breach of this Agreement;

	(f)	by written notice by the Purchaser to the Company, if there shall have been a Material Adverse Effect on the Target Companies taken as a whole following the Agreement Date which is uncured for at least ten (10) Business Days after written notice of such Material Adverse Effect is provided by the Purchaser to the Company;

	(g)	by written notice by the Company to the Purchaser, if there shall have been a Material Adverse Effect on the Purchaser following the Agreement Date which is uncured for at least ten (10) Business Days after written notice of such Material Adverse Effect is provided by the Company to the Purchaser;

	(a)	The Purchaser, on behalf of itself and its Subsidiaries, successors and assigns, by execution and delivery of this Agreement, hereby irrevocably appoints Mehana Capital LLC, in the capacity as the Purchaser Representative, as each such Person’s agent, attorney-in-fact and representative, with full power of substitution to act in the name, place and stead of such Person, to act on behalf of such Person from and after the Closing in connection with: (i) controlling and making any determinations with respect to the post-Closing Merger Consideration adjustments under Section 1.15; (ii) acting on behalf of such Person under the Escrow Agreement; (iii) terminating, amending or waiving on behalf of such Person any provision of this Agreement or any Ancillary Documents to which the Purchaser Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “*Purchaser Representative Documents”); (iv) signing on behalf of such Person any releases or other documents with respect to any dispute or remedy arising under any Purchaser Representative Documents; (v) employing and obtaining the advice of legal counsel, accountants and other professional advisors as the Purchaser Representative, in its reasonable discretion, deems necessary or advisable in the performance of its duties as the Purchaser Representative and to rely on their advice and counsel; (vi) incurring and paying reasonable out-of-pocket costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated hereby, and any other reasonable out-of-pocket fees and expenses allocable or in any way relating to such transaction or any indemnification claim; and (vii) otherwise enforcing the rights and obligations of any such Persons under any Purchaser Representative Documents, including giving and receiving all notices and communications hereunder or thereunder on behalf of such Person; provided,* that the Parties acknowledge that the Purchaser Representative is specifically authorized and directed to act on behalf of, and for the benefit of, the holders of the Purchaser Securities (other than the Company Security Holders immediately prior to the Effective Time and their respective successors and assigns). All decisions and actions by the Purchaser Representative, shall be binding upon the Purchaser and its Subsidiaries, successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or otherwise contest the same. The provisions of this Section 10.13 are irrevocable and coupled with an interest. The Purchaser Representative hereby accepts its appointment and authorization as the Purchaser Representative under this Agreement.

	(b)	The Purchaser Representative shall not be liable for any act done or omitted under any Purchaser Representative Document as the Purchaser Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Purchaser shall indemnify, defend and hold harmless the Purchaser Representative from and against any and all losses incurred without gross negligence, bad faith or willful misconduct on the part of the Purchaser Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Purchaser Representative’s duties under any Purchaser Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Purchaser Representative. In no event shall the Purchaser Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Purchaser Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Purchaser Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Purchaser Representative shall have the right at any time and from time to time to select and engage, at the cost and expense of the Purchaser, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other out-of-pocket expenses, as the Purchaser Representative may deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Purchaser Representative under this Section 10.13 shall survive the Closing and continue indefinitely.

	(b)	Any other Person, including the Purchaser Representative, the Purchaser and the Company may conclusively and absolutely rely, without inquiry, upon any actions of the Seller Representative as the acts of the Company Stockholders under any Seller Representative Documents. The Purchaser Representative, the Purchaser and the Company hall be entitled to rely conclusively on the instructions and decisions of the Seller Representative as to (i) any payment instructions provided by the Seller Representative or (ii) any other actions required or permitted to be taken by the Seller Representative hereunder, and no Company Stockholder shall have any cause of action against the Purchaser Representative, the Purchaser, the Company or any other Indemnified Party for any action taken by any of them in reliance upon the instructions or decisions of the Seller Representative. The Purchaser Representative, the Purchaser, the Company and the other Indemnified Parties shall not have any Liability to any Company Stockholder for any allocation or distribution among the Company Stockholders by the Seller Representative of payments made to or at the direction of the Seller Representative. All notices or other communications required to be made or delivered to a Company Stockholder under any Seller Representative Document shall be made to the Seller Representative for the benefit of such Company Stockholder, and any notices so made shall discharge in full all notice requirements of the other Parties or thereto to such Company Stockholder with respect thereto. All notices or other communications required to be made or delivered by a Company Stockholder shall be made by the Seller Representative (except for a notice under Section 10.14(d) of the replacement of the Seller Representative).

	(c)	The Seller Representative will act for the Company Stockholders on all of the matters set forth in this Agreement in the manner the Seller Representative believes to be in the best interest of the Company Stockholders, but the Seller Representative will not be responsible to the Company Stockholders for any losses that any Company Stockholder may suffer by reason of the performance by the Seller Representative of the Seller Representative’s duties under this Agreement, other than losses arising from the bad faith, gross negligence or willful misconduct by the Seller Representative in the performance of its duties under this Agreement. From and after the Closing, the Company Stockholders shall jointly and severally indemnify, defend and hold the Seller Representative harmless from and against any and all losses reasonably incurred without gross negligence, bad faith or willful misconduct on the part of the Seller Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Seller Representative’s duties under any Seller Representative Document, including the reasonable fees and expenses of any legal counsel retained by the Seller Representative. In no event shall the Seller Representative in such capacity be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages. The Seller Representative shall not be liable for any act done or omitted under any Seller Representative Document as the Seller Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Seller Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Seller Representative in the foregoing manner. In connection with the performance of its rights and obligations hereunder, the Seller Representative shall have the right at any time and from time to time to select and engage, at the reasonable cost and expense of the Company Stockholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other reasonable out-of-pocket expenses, as the Seller Representative may reasonably deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Seller Representative under this Section 10.14 shall survive the Closing and continue indefinitely.

Term		Section

Accounts Receivable		Section 4.07(f)

Acquisition Proposal		Section 5.06(a)

Adjustment Amount		Section 1.15(d)

Agreement		Preamble

Agreement Schedules		Section 5.02(a)

Alternative Transaction		Section 5.06(a)

Amended Purchaser Certificate of Incorporation		Section 1.19

Anthony		Section 10.15(b)

Antitrust Laws		Section 5.09(b)

Balance Sheet Date		Section 4.07(d)

Business Combination		Section 9.01

Certificate of Merger		Section 1.02

CFO		Section 1.15(a)

Closing		Section 2.01

Closing Date		Section 2.01

Closing Filing		Section 5.14(b)

Closing Press Release		Section 5.14(b)

Closing Statement		Section 1.15(a)

Company		Preamble

Company Benefit Plan		Section 4.19(a)

Company Directors		Section 5.17(a)

Company Disclosure Schedules		Article IV

Company Financials		Section 4.07(a)

Company IP		Section 4.13(d)

Company IP Licenses		Section 4.13(a)

Company Material Contracts		Section 4.12(a)

Company Permits		Section 4.10

Company Personal Property Leases		Section 4.16

Company Real Property Leases		Section 4.15

Company Registered IP		Section 4.13(a)

Controlled Person		Section 11.01

Conversion		Section 1.08(a)

D&O Indemnified Persons		Section 5.18(a)

D&O Tail Insurance		Section 5.18(b)

Delivery Deadline		Section 5.24

DGCL		Recitals

Effective Time		Section 1.02

Enforceability Exceptions		Section 3.02

Environmental Permits		Section 4.20(a)

Escrow Account		Section 1.18

Escrow Agent		Section 1.18

Escrow Agreement		Section 1.18

Escrow Amount		Section 1.18

Escrow Property		Section 1.18

Escrow Shares		Section 1.18

Estimated Closing Statement		Section 1.14

Exchange Agent		Section 1.12(a)

Expenses		Section 8.03

Extension		Section 5.03(a)

Extension Expenses		Section 5.03(b)(iv)

Federal Securities Laws		Section 5.07

Incentive Plan		Section 5.12(a)

Independent Expert		Section 1.15(b)

Independent Expert Notice Date		Section 1.15(b)

Interim Period		Section 5.01(a)

Letter of Transmittal		Section 1.12(a)

Lock-Up Agreement		Recitals

Loeb		Section 2.01

Merger		Recitals

Merger Consideration		Section 1.07

Merger Sub		Preamble

Non-Competition Agreement		Recitals

Objection Statement		Section 1.15(b)

OFAC		Section 3.20(c)

Off-the-Shelf Software		Section 4.13(a)

Outbound IP License		Section 4.13(c)

Outside Date		Section 8.01(b)

Original Agreement		Recitals

PCAOB Audited Financials		Section 8.01(b)

PCAOB Delivery Deadline		Section 8.01(b)

Party(ies)		Preamble

Post-Closing Purchaser Board		Section 5.17(a)

PPACA		Section 4.19(h)

Proxy Statement		Section 5.12(a)

Public Certifications		Section 3.06(a)

Public Stockholders		Section 9.01

Purchaser		Preamble

Purchaser Disclosure Schedules		Article III

Purchaser Financials		Section 3.06(b)

Purchaser Material Contract		Section 3.14(a)

Purchaser Representative		Preamble

Purchaser Stockholder Approval Matters		Section 5.12(a)

Purchaser Special Meeting		Section 5.12(a)

Purchaser Support Agreement		Recitals

Redemption		Section 5.12(a)

Related Person		Section 4.21

Released Claims		Section 9.01

Representative Party		Section 1.15(b)

Required Company Stockholder Approval		Section 7.01(b)

Required Purchaser Stockholder Approval		Section 7.01(a)

Restructuring		Section 5.23

SEC Reports		Section 3.06(a)

Section 409A Plan		Section 4.19(k)

Seller Representative		Preamble

Signing Filing		Section 5.14(b)

Signing Press Release		Section 5.14(b)

Subscription Agreements		Recitals

Surviving Corporation		Section 1.01

Top Customers		Section 4.24

Top Suppliers		Section 4.24

Transmittal Documents		Section 1.12(b)

Unaudited Annual Financials		Section 4.07(a)

Voting Agreements		Recitals