Form 8-K
8-K — Nano Nuclear Energy Inc.
Accession: 0001493152-26-025709
Filed: 2026-05-29
Period: 2026-05-29
CIK: 0001923891
SIC: 4911 (ELECTRIC SERVICES)
Item: Entry into a Material Definitive Agreement
Item: Completion of Acquisition or Disposition of Assets
Item: Unregistered Sales of Equity Securities
Item: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers
Item: Regulation FD Disclosure
Item: Financial Statements and Exhibits
Documents
8-K — form8-k.htm (Primary)
EX-10.1 (ex10-1.htm)
EX-10.2 (ex10-2.htm)
EX-10.3 (ex10-3.htm)
EX-10.4 (ex10-4.htm)
EX-99.1 (ex99-1.htm)
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GRAPHIC (ex99-1_002.jpg)
GRAPHIC (ex99-1_004.jpg)
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): May 29, 2026 (May 22, 2026)
Nano
Nuclear Energy Inc.
(Exact
name of registrant as specified in its charter)
Nevada
001-42044
88-0861977
(State
or other jurisdiction
of
incorporation)
(Commission
File
Number)
(IRS
Employer
Identification
No.)
10
Times Square, 30th Floor
New
York, New York 10018
(Address
of principal executive offices, including zip code)
Registrant’s
telephone number, including area code: (212) 634-9206
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
Common
Stock, par value $0.0001 per share
NNE
The
Nasdaq Stock Market LLC
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§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.
STS
Membership Interest Purchase Agreement
On
May 22, 2026, Nano Nuclear Energy Inc., a Nevada corporation (the “Company” or “Nano”), and its wholly-owned
subsidiary Advanced Fuel Transportation Inc. a Nevada corporation (the “Buyer,” and together with the Company, the “Buyer
Parties” and each a “Buyer Party”), entered into a Membership Interest Purchase Agreement (such agreement, together
with all schedules, exhibits and attachments thereto, the “Purchase Agreement”) with Roy A. Boyd II (“Mr. Boyd”),
Onium Capital, LLC, a Georgia limited liability company (“Onium” and together with Mr. Boyd, the “Sellers”),
and Secured Transportation Services LLC, a Delaware limited liability company (“STS”), pursuant to which the Sellers agreed
to sell to the Buyer and the Buyer agreed to purchase from the Sellers 100% of the issued and outstanding membership interests of STS
(the “STS Acquisition”). The closing of the STS Acquisition occurred on May 22, 2026 (the “Closing Date”).
Pursuant
to the Purchase Agreement, the Buyer Parties agreed to pay up to $13.0 million in total consideration for STS, consisting of (i) approximately
$6.0 million in cash (the “Closing Cash Consideration”), subject to adjustment under certain conditions within 180 days following
the Closing Date, which adjustment may increase or decrease the Closing Cash Consideration by up to $0.5 million (“Adjustment Cap,”
to be held in an Escrow Account described below); (ii) $1.0 million in Nano’s restricted shares of common stock (the “Common
Stock”) at closing, with the number of shares issuable determined based on the ten-day volume weighted average price of the Common
Stock (“VWAP”) as of the date immediately preceding the Closing Date (“Closing Stock Consideration”); and (iii)
an aggregate of $6.0 million of Common Stock payable in five installments of $1.4 million, $1.4 million, $1.4 million, $1.4 million,
$0.4 million, respectively, on each of the first, second, third, fourth and fifth anniversaries of the Closing Date (the “Anniversary
Stock Consideration,” and together with the Closing Stock Consideration, the “Aggregate Stock Consideration”), with
the number of shares issuable for each installment determined based on the applicable ten-day VWAP as of the date immediately preceding
the applicable payment dates; provided, however, that in no event shall more than an aggregate of 10,364,476 shares of Common Stock be
issuable to the Sellers pursuant to the Purchase Agreement. Of such Anniversary Stock Consideration, an aggregate of $2.0 million worth
of Common Stock shall be allocated ratably among the first, second, third, fourth and fifth anniversaries of the Closing Date (or in
such other allocation amounts as may be agreed upon by the parties in writing) as deferred stock consideration (the “Deferred Stock
Consideration”), the issuance of which shall be subject to certain conditions, including Mr. Boyd’s continued employment
with the Company or its affiliates and compliance by each of the Sellers with a restrictive covenant
agreement entered into as of the Closing Date.
The
shares issuable pursuant to the Aggregate Stock Consideration shall be issued pursuant to Section 4(a)(2) of the Securities Act of 1933,
as amended.
Concurrently
with the execution of the Purchase Agreement, on May 22, 2026, the Buyer and the Sellers entered into an escrow agreement (the “Escrow
Agreement”) with Citibank, N.A., as escrow agent (the “Escrow Agent”), pursuant to which $0.5 million was deposited
as the Adjustment Cap into an interest-bearing escrow account (the “Escrow Account”), to be held and disbursed by the Escrow
Agent under the terms of the Purchase Agreement and the Escrow Agreement. All fees and expenses of the Escrow Agent shall be evenly split
between the Buyer and the Sellers.
On
the Closing Date, an aggregate of (i) 38,581.29 shares of common stock of the Company were issued to the Sellers as the Closing Stock
Consideration and (ii) $5,192,701.81 was paid in cash (net of Indebtedness and Transaction Expenses, each as defined in the Purchase
Agreement) to the Sellers. As a result of the STS Acquisition, STS became a subsidiary of Nano through the Buyer.
Related
STS Agreements
The
STS Acquisition contemplates the execution of various additional agreements and instruments, on or before the Closing Date, including,
among others, the following:
Registration
Rights Agreement
In
connection with the STS Acquisition, on May 22, 2026, the Company, Mr. Boyd and Onium entered into a Registration Rights Agreement (the
“Registration Rights Agreement”). Pursuant to the Registration Rights Agreement, among other things, the Company agreed to
file with the U.S. Securities and Exchange Commission (the “SEC”) a resale registration statement on Form S-1 or S-3, as
applicable (the “Shelf Registration Statement”) covering the Aggregate Stock Consideration (including the Deferred Stock
Consideration) that has been or is contemplated to be issued by the Company to the holders pursuant to the Purchase Agreement, within
ninety (90) days following the Closing Date (the “Filing Deadline”).
The
Company shall use commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective as promptly as
is reasonably practicable after filing but no later than the earlier of (i) sixty (60) days following the Filing Deadline and (ii) three
(3) business days after the SEC notifies the Company that it will not review such Shelf Registration Statement (the “Effectiveness
Deadline”). If the Shelf Registration Statement is reviewed by, and the Company receives comments from, the SEC, the Effectiveness
Deadline shall be extended by thirty (30) days to ninety (90) days following the Filing Deadline. The Registration Rights Agreement also
provides for subsequent resale registrations if an existing resale registration ceases to remain effective.
Pursuant
to the Registration Rights Agreement, if the Company proposes to file a registration statement for an offering of its common stock, subject
to certain exceptions, the Sellers will have customary piggyback registration rights to include their registrable securities in such
registration, subject to customary cutback provisions. In the case of an underwritten offering or shelf takedown, the amount of registrable
securities to be included in such offering may be reduced by the Company or the managing underwriter if deemed commercially reasonable
or advisable, with priority generally given first to securities to be sold by the Company and then to other holders entitled to registration
rights.
The
Registration Rights Agreement will terminate on the date that such holders no longer hold any registrable securities.
Restrictive
Covenant Agreements with Roy A. Boyd II, Angela Boyd and Onium
In
connection with the consummation of the STS Acquisition, on May 22, 2026, the Sellers and Angela Boyd (Mr. Boyd’s wife) (each an
“Equityholder” and collectively, the “Equityholders”) each entered into an Equityholder Restrictive Covenant
Agreement with the Buyer (collectively, the “Restrictive Covenant Agreements”) on substantially similar terms.
Pursuant
to the Restrictive Covenant Agreements, the Equityholders agreed to customary confidentiality obligations with respect to confidential
information relating to the Buyer Parties and the transactions contemplated by the Purchase Agreement. The Restrictive Covenant Agreements
also contain customary restrictive covenant provisions, including non-competition, non-solicitation and non-disparagement obligations.
Such restrictions generally apply during the five-year restricted period following the Closing Date, subject to certain customary exceptions
and permitted activities.
The
foregoing descriptions of the Purchase Agreement, the Registration Rights Agreement and the Restrictive Covenant Agreements are subject
to and qualified in their entirety by reference to the full text of the Purchase Agreement and its exhibits and attachments, which are
attached as Exhibit 10.1, Exhibit 10.2 and Exhibit 10.3, respectively, to this report and are incorporated in this report by reference.
Item
2.01 Completion of Acquisition or Disposition of Assets.
The
disclosure set forth above in Item 1.01 of this Current Report on Form 8-K is incorporated by reference in this Item 2.01. The closing
of the transactions contemplated by the Purchase Agreement occurred on May 22, 2026.
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 in this Item 3.02.
Item
5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers.
In
connection with STS Acquisition contemplated by the Purchase Agreement, on May 22, 2026, the Board of Directors (the “Board”)
of the Company determined that Mr. Boyd should be an “executive officer” of the Company by continuing to serve as the President
of STS, reporting to the Company’s Chief Executive Officer. The biographical information regarding Mr. Boyd is listed below:
Roy
A. Boyd, II, 59, joined the Company as President of STS on May 22, 2026. Mr. Boyd founded STS in 2005 and has served as its principal
executive officer continuously since founding. Under his leadership, STS has developed specialized capabilities in regulated transportation
and logistics services for government, national laboratory, and commercial clients. He retains overall responsibility for strategy, operations,
regulatory compliance, customer relationships, and financial performance of the STS business unit. In addition to his role at STS, Mr.
Boyd serves as majority member and member of the Board of Directors of Onium Capital, LLC, a private investment company, in which capacities
he has served since 2022. Mr. Boyd is also a majority member of Onium Machining and Fabrication, LLC, a privately-held precision machining
and fabrication company, which he co-founded in 2022.
On
May 22, 2026, the Company and STS entered into an employment agreement with Mr. Boyd, to memorialize the terms and conditions of Mr.
Boyd’s employment as President of STS (the “Boyd Employment Agreement”).
Under
the Boyd Employment Agreement, Mr. Boyd is entitled to an annual base salary of $350,000, subject to the adjustment by the Company’s
Chief Executive Officer from time to time. Pursuant to the Boyd Employment Agreement, Mr. Boyd is eligible for an annual target performance
bonus of 40% of his then-current base salary, with a maximum potential bonus of up to 60% of his then-current base salary, plus the participation
in the Company’s 2025 Equity Incentive Plan and other customary employee benefit plans and programs subject to the applicable terms
of the Boyd Employment Agreement.
The
Boyd Employment Agreement provides for severance payments in the event the Company terminates Mr. Boyd’s employment without “Cause”
or Mr. Boyd resigns for “Good Reason” (each as defined in the Boyd Employment Agreement). In such event, Mr. Boyd will be
entitled to receive accrued compensation, a severance payment equal to twelve months of base salary payable in accordance with the Company’s
normal payroll practices, a pro-rated annual bonus based on actual performance, and Company-paid medical insurance premiums under COBRA
coverage for up to twelve months, subject to Mr. Boyd’s execution and non-revocation of a general release. If Mr. Boyd’s
employment is terminated for Cause, due to death or disability, or if Mr. Boyd resigns without Good Reason, Mr. Boyd will only be entitled
to accrued compensation through the date of termination. The Boyd Employment Agreement also contains restrictive covenant provisions
applicable during Mr. Boyd’s employment and following termination in certain circumstances.
Mr.
Boyd shall serve as the President of STS for an initial period of five (5) years from May 22, 2026 to May 21, 2031 (“Boyd Initial
Term”), with an automatic renewal of one (1) year. If either party wishes to terminate the Boyd Employment Agreement upon the expiration
of the Boyd Initial Term, such party shall provide at least sixty (60) days’ written notice to the other party. Notwithstanding
anything herein to the contrary, Mr. Boyd’s employment with STS is “at-will” and may be terminated by either party
at any time, with or without cause.
The
foregoing description of the Boyd Employment Agreement is subject to and qualified in its entirety by reference to the full text of the
Boyd Employment Agreement, which is attached as Exhibit 10.4 to this report and is incorporated in this report by reference.
Item
7.01 Regulation FD Disclosure.
On
May 26, 2026, the Company issued a press release announcing the acquisition of STS. The press release is furnished as Exhibit 99.1 to
this Current Report.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
Exhibit
No.
Description
10.1*
^
Membership Interest Purchase Agreement , dated May 22, 2026, by and among Nano Nuclear Energy Inc., Roy A. Boyd II, Onium Capital, LLC, Secured Transportation Services LLC and Advanced Fuel Transportation Inc.
10.2
Registration Rights Agreement, dated May 22, 2026, by and among Nano Nuclear Energy Inc., Roy A. Boyd II and Onium Capital, LLC.
10.3
Form of Equityholder Restrictive Covenant Agreement, dated May 22, 2026
10.4*
^
Employment Agreement, dated May 22, 2026, by and among Nano Nuclear Energy Inc., Secured Transportation Services LLC, and Roy A. Boyd II.
99.1
Press Release of Nano Nuclear Energy Inc.
104
Cover
Page Interactive Data File (embedded within the Inline XBRL document).
*
Certain portions of the exhibits and schedules to this Exhibit have been omitted pursuant to Item 601(a)(5) of Regulation S-K.
The Company agrees to furnish a copy of all omitted exhibits and schedules to the SEC upon request.
^
Certain portions of this Exhibit have been omitted pursuant to Item 601(a)(6) of Regulation S-K. The Company hereby agrees to furnish
a copy of any omitted portion to the SEC upon request.
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
Dated:
May 29, 2026
NANO
Nuclear Energy Inc.
By:
/s/
James Walker
Name:
James
Walker
Title:
Chief
Executive Officer
EX-10.1
EX-10.1
Filename: ex10-1.htm · Sequence: 2
Exhibit
10.1
Execution
Version
MEMBERSHIP
INTEREST PURCHASE AGREEMENT
among
ROY
A. BOYD II,
ONIUM
CAPITAL, LLC,
SECURED
TRANSPORTATION SERVICES LLC,
ADVANCED
FUEL TRANSPORTATION INC.,
and
NANO
NUCLEAR ENERGY INC.
Dated
as of May 22, 2026
TABLE
OF CONTENTS
Page
Article
I DEFINITIONS
1
Section
1.1
Certain
Defined Terms
1
Section
1.2
Table
of Definitions
14
Article II PURCHASE AND SALE
16
Section
2.1
Purchase
and Sale of the Interests
16
Section
2.2
Closing.
16
Section
2.3
Equitable
Adjustments
21
Section
2.4
Purchase
Price Adjustments.
21
Section
2.5
Withholding
25
Section
2.6
Excluded
Assets
25
Article
III REPRESENTATIONS AND WARRANTIES OF THE SELLERS
25
Section
3.1
Organization
and Capacity
25
Section
3.2
Authority
25
Section
3.3
No
Conflict; Required Filings and Consents.
26
Section
3.4
Interests
26
Section
3.5
Brokers
27
Section
3.6
Litigation;
Orders
27
Section
3.7
Investment
Intent
27
Section
3.8
Sellers’
Investigation and Reliance
27
Section
3.9
Exclusivity
of Representations and Warranties
28
Section
3.10
No
General Solicitation
28
Article
IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY
28
Section
4.1
Organization
and Qualification.
28
Section
4.2
Authority
29
Section
4.3
No
Subsidiaries
29
Section
4.4
No
Conflict; Required Filings and Consents.
29
Section
4.5
Capitalization
30
Section
4.6
Equity
Interests
30
Section
4.7
Sufficient
Assets
30
Section
4.8
Financial
Statements; No Undisclosed Liabilities.
30
Section
4.9
Absence
of Certain Changes or Events
31
Section
4.10
Compliance
with Law; Permits; Anti-Corruption.
33
Section
4.11
Litigation;
Orders
36
Section
4.12
Employee
Benefit Plans.
36
Section
4.13
Labor
and Employment Matters.
38
Section
4.14
Insurance
39
Section
4.15
Real
Property; Title to Property; Inventory.
39
Section
4.16
Intellectual
Property; IT Assets; Data Privacy and Security.
41
Section
4.17
Taxes.
44
Section
4.18
Environmental
Matters.
46
Section
4.19
Material
Contracts.
47
Section
4.20
Material
Customers and Suppliers.
49
Section
4.21
Related
Party Transactions
49
Section
4.22
No
Insolvency Proceedings
49
Section
4.23
Brokers
49
Section
4.24
Exclusivity
of Representations and Warranties
49
Article
V REPRESENTATIONS AND WARRANTIES OF THE BUYER PARTIES
50
Section
5.1
Organization
50
Section
5.2
Authority
50
Section
5.3
No
Conflict; Required Filings and Consents.
50
Section
5.4
Solvency
51
Section
5.5
Brokers
51
Section
5.6
Investment
Intent
51
Section
5.7
Buyer
Parties’ Investigation and Reliance
51
Section
5.8
Listing
Exchange
52
Section
5.9
Financial
Reports and Regulatory Filings
52
Section
5.10
No
Stockholder Approval
52
Section
5.11
Legal
Proceedings
52
Section
5.12
Exclusivity
of Representations and Warranties
52
Article
VI COVENANTS
53
Section
6.1
Related
Party Transactions
53
Section
6.2
Further
Assurances
53
Section
6.3
Public
Announcements
53
Section
6.4
Directors’
and Officers’ Indemnification.
53
Section
6.5
Reserved
54
Section
6.6
Additional
Listing Application; Removal of Restrictive Legends.
54
Section
6.7
Lock-Up.
54
Section
6.8
General
Efforts
55
Section
6.9
PCAOB
Financial Statements
55
ii
Article VII TAX MATTERS
56
Section
7.1
Tax
Returns.
56
Section
7.2
Books
and Records; Cooperation
56
Section
7.3
Transfer
Taxes
56
Section
7.4
Straddle
Period Allocation
57
Section
7.5
Tax
Proceedings
57
Section
7.6
Tax
Accounting Method Change.
57
Section
7.7
S
Corporation Termination.
58
Article
VIII INDEMNIFICATION
58
Section
8.1
Sellers’
Indemnification
58
Section
8.2
Buyer
Parties Indemnification
58
Section
8.3
Limitations
59
Section
8.4
Notice
of Claims
60
Section
8.5
Third
Party Actions.
60
Section
8.6
Payments;
Escrow Funds.
62
Section
8.7
Right
of Offset
62
Section
8.8
Effect
of Investigation and Notices
63
Section
8.9
Tax
Treatment of Indemnity Payments
63
Section
8.10
Exclusive
Remedy
63
Article
IX GENERAL PROVISIONS
63
Section
9.1
Fees
and Expenses
63
Section
9.2
Amendment
and Modification; Waiver; Extension
63
Section
9.3
Notices
64
Section
9.4
Interpretation
64
Section
9.5
Entire
Agreement
65
Section
9.6
Parties
in Interest
65
Section
9.7
Governing
Law; Jurisdiction; Venue; Service of Process; Waiver of Jury Trial
65
Section
9.8
Disclosure
Generally
66
Section
9.9
Assignment;
Successors
66
Section
9.10
Enforcement
67
Section
9.11
Currency
67
Section
9.12
Severability
67
Section
9.13
Counterparts
67
Section
9.14
Electronic
Signature
67
Section
9.15
No
Presumption Against Drafting Party
67
Section
9.16
Release
67
Section
9.17
Parent
Guarantee.
68
Section
9.18
Privilege;
Counsel.
68
iii
MEMBERSHIP
INTEREST PURCHASE AGREEMENT
MEMBERSHIP
INTEREST PURCHASE AGREEMENT, dated as of May 22, 2026 (this “Agreement”), among Roy A. Boyd II (“Mr. Boyd”),
Onium Capital, LLC, a Georgia limited liability company (“Onium” and together with Mr. Boyd, the “Sellers”),
Secured Transportation Services LLC, a Delaware limited liability company (the “Company”), Advanced Fuel Transportation
Inc., a Nevada corporation (the “Buyer”), and NANO Nuclear Energy Inc., a Nevada corporation (the “Parent”
and together with the Buyer, the “Buyer Parties” and each a “Buyer Party”).
RECITALS
A.
The Sellers own 100% of the issued and outstanding membership interests in the Company (the “Interests”).
B.
The Sellers wish to sell to the Buyer, and the Buyer wishes to purchase from the Sellers, the Interests.
AGREEMENT
In
consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
Article
I
DEFINITIONS
Section
1.1 Certain Defined Terms. For purposes of this Agreement:
“Acquisition
Proposal” means any proposal or offer from any Person (other than the Buyer or any of its Affiliates) with respect to any direct
or indirect acquisition, purchase, or license, in one transaction or a series of transactions, and whether through merger, reorganization,
consolidation, tender offer, self-tender, exchange offer, stock acquisition, asset acquisition, binding share exchange, business combination,
recapitalization, liquidation, dissolution, joint venture, licensing, or similar transaction, or otherwise, of all or any portion of
the assets or businesses of the Company.
“Action”
means any claim, action, charge, complaint, suit, arbitration, information request, litigation, demand, proceeding (including any civil,
criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought,
conducted or heard by or before any Governmental Authority or mediator.
“Affiliate”
means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled
by, or is under common control with, such first Person; provided that with respect to the Buyer Parties, in respect of any period
commencing prior to the Closing, “Affiliate” shall not include the Company and, in respect of any period commencing at or
after the Closing, “Affiliate” shall include the Company. 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.
“Affiliated
Group” means an affiliated group as defined in Section 1504 of the Code (or analogous consolidated, combined, unitary or similar
Income Tax group under state, local or non-U.S. Law).
1
“Aggregate
Cash Closing Consideration” means an amount equal to the Estimated Purchase Price minus the Aggregate Stock Consideration Value.
“Aggregate
Closing Stock Consideration” means an amount of shares of Parent Common Stock equal to the quotient of One Million Dollars
($1,000,000) divided by the Ten-Day VWAP as of the Closing Date.
“Aggregate
Closing Consideration” means, collectively, the Aggregate Cash Closing Consideration and the Aggregate Closing Stock Consideration.
“Aggregate
Post-Closing Stock Consideration” means collectively, the First Anniversary Stock Consideration, the Second Anniversary Stock
Consideration, the Third Anniversary Stock Consideration, the Fourth Anniversary Stock Consideration and the Fifth Anniversary Stock
Consideration.
“Aggregate
Stock Consideration” means, individually or collectively, as applicable, the Aggregate Closing Stock Consideration, the First
Anniversary Stock Consideration, the Second Anniversary Stock Consideration, the Third Anniversary Stock Consideration, the Fourth Anniversary
Stock Consideration and the Fifth Anniversary Stock Consideration.
“Aggregate
Stock Consideration Value” means Seven Million Dollars ($7,000,000).
“Agreement
State” means any state of the United States that has entered into an agreement with the NRC pursuant to Section 274 of the
Atomic Energy Act of 1954, as amended, under which the NRC has relinquished, and such state has assumed, regulatory authority over certain
radioactive materials and activities within that state.
“AI
Inputs” means any data or content or other materials used to develop, train, validate, test or improve any AI Technology.
“AI
Technology” means any and all deep learning, machine learning, and other artificial intelligence technologies, including large
language models.
“Anti-Corruption
Laws” means the United States Foreign Corrupt Practices Act of 1977 and any rules or regulations thereunder, the United Kingdom
Bribery Act of 2010, any legislation implementing the Organization for Economic Cooperation and Development Convention on Combating Bribery
of Foreign Public Officials in International Business Transactions, and any other applicable Law regarding anti-bribery or illegal payments
or gratuities.
“Boyd
Consulting Agreement” means a consulting agreement to be entered into between Mrs. Boyd and the Parent concurrently with the
execution and delivery of this Agreement, in substantially the form mutually agreed between Mrs. Boyd and the Parent.
“Boyd
Employment Agreement” means an executive employment agreement to be entered into among Mr. Boyd, the Company and the Parent
concurrently with the execution and delivery of this Agreement, in substantially the form mutually agreed among Mr. Boyd, the Company
and the Parent.
“Business
Day” means any day that is not a Saturday, a Sunday or any other day on which banks are required or authorized by Law to be
closed in New York, New York.
“Buyer
Material Adverse Effect” means any event, change, occurrence or effect that would prevent, materially delay or materially impede
the performance by the Buyer of its obligations under this Agreement or any of the other Transaction Documents to which it will be a
party or the consummation by the Buyer of the transactions contemplated hereby or thereby.
2
“Cash”
means the aggregate amount of all cash, cash equivalents and marketable securities held by the Company, in all cases determined in accordance
with GAAP; provided that (x) any payments made by the Company in respect of Indebtedness or Transaction Expenses or (y) any cash
dividends or other cash distributions made by the Company, in each case, from the Calculation Time through the Closing, shall be calculated
as if such payments, dividends or distributions had been made prior to the Calculation Time.
“Calculation
Time” means 12:01 a.m., Eastern Time, on the Closing Date.
“Cash-to-Accrual
Taxes” means an amount (which shall not be less than zero) equal to the Taxes of the Company, Buyer or any of their respective
Affiliates for any taxable period (or portion thereof) beginning on or after the Closing Date arising from or attributable to an actual
or deemed change in the Company’s method of accounting from the cash method of accounting to the accrual method of accounting for
income Tax purposes imposed as a result of the recognition of income in a Tax period (or portion thereof) beginning on or after the Closing
Date related to cash basis accounts receivable and prepaid expenses existing as of the date immediately preceding the Closing Date net
of cash basis accounts payable and accrued expenses existing as of the date immediately preceding the Closing Date.
“Change
of Control” means, with respect to the Parent or the Company, the occurrence of any of the following events: (a) any person
or group (within the meaning of Section 13(d)(3) of the Exchange Act) becomes the beneficial owner, directly or indirectly, of more than
fifty percent (50%) of the outstanding voting power; (b) a merger, consolidation, recapitalization, reorganization or similar transaction,
as a result of which the holders of the outstanding voting securities immediately prior to such transaction do not continue to hold at
least a majority of the outstanding voting power of the surviving or resulting entity; or (c) a sale, lease, transfer, or other disposition
of all or substantially all assets.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Collective
Bargaining Agreement” means any labor-related agreement, memorandum of understanding, or other similar labor-related obligation
between the Company and any labor union, trade union, labor organization, employee representative, or works council with respect to any
one or more employees of the Company.
“Company
Data” means all data Processed by the Company and contained in the systems, databases, files or other records of the Company,
including Personal Data.
“Company
Intellectual Property” means all Intellectual Property that is owned, purported to be owned, used, held for use or practiced
by the Company.
“Competing
Transaction” means any of the following involving the Company other than the transactions contemplated hereby: any proposed
(i) merger, consolidation, share exchange, business combination or other similar transaction involving the Company, (ii) sale, lease,
exchange, transfer, license or other disposition directly or indirectly of 10% or more of the assets of the Company (based on fair market
value) or (iii) transaction (including a tender offer or exchange offer) in which any Person would acquire beneficial ownership (as such
term is defined in Rule 13d-3 under the Exchange Act) of, or the right to acquire beneficial ownership, of (whether itself, as a member
of any “group” (as such term is defined under the Exchange Act) or otherwise), 10% or more of any class of equity securities
of the Company.
“COVID-19”
means SARS-CoV-2 or COVID-19, and any evolutions thereof or related outbreaks.
3
“Deferred
Pre-Closing Tax Effect” means any of the following: (a) change in method of accounting for a Pre-Closing Tax Period; (b) use
of an improper method of accounting for a Pre-Closing Tax Period; (c) adjustment pursuant to Section 481 of the Code made prior to the
Closing or made or required to be made in connection with or as a result of the transactions contemplated by this Agreement or in respect
of any Pre-Closing Tax Period but expressly excluding any Cash-to-Accrual Taxes; (d) closing agreement with a Taxing Authority executed
on or prior to the Closing Date; (e) prepaid amount, advanced amount or deferred revenue received or accrued on or prior to the Closing
Date or accounts receivable or other receivable or zero basis asset in existence on or prior to the Closing Date; (f) use of cash method
of accounting on or prior to the Closing Date; (g) intercompany transaction or excess loss account made on or prior to the Closing Date;
or (h) installment sale or open transaction disposition made on or prior to the Closing Date. For avoidance of doubt, Deferred Pre-Closing
Tax Effect expressly excludes any Cash-to-Accrual Taxes.
“Encumbrance”
means any charge, claim, mortgage, lien, option, pledge, security interest or other restriction of any kind (other than those created
under applicable securities Laws, and not including any non-exclusive license of Intellectual Property).
“Enforceability
Exceptions” means, with respect to any specified obligation, any limitations on the enforceability of such obligation due to
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, fraudulent transfer, moratorium, and other similar laws of
general applicability relating to or affecting creditors’ rights or general equity principles (including public policies) or except
as rights to indemnification or contribution may be limited by Federal, state, provincial or territorial securities laws.
“Environmental
Laws” means any applicable Laws of any Governmental Authority in effect as of the date hereof relating to protection of human
health, safety, or the environment including any of the foregoing regulating the management, manufacturing, treatment, storage, transportation,
or disposal of Hazardous Materials, or occupational safety or health.
“Environmental
Permits” means all Permits required under applicable Environmental Law.
“Equity
Interest” means, with respect to any Person, any and all shares, interests, or other equivalents (however designated and whether
voting or non-voting) of such Person’s capital stock or other equity interests (including partnership or membership interests in
a partnership or limited liability company or any other interest or participation that confers on a Person the right to receive a share
of the profits and losses, or distributions of assets, of the issuing Person), and any equity or debt securities convertible into or
exchangeable or exercisable for such Person’s capital stock or other equity interests (including any options, warrants, calls,
subscriptions or other purchaser or redemption rights).
“Escrow
Agent” means Citibank, N.A., or its successor under the Escrow Agreement.
“Escrow
Agreement” means the Escrow Agreement to be entered into by the Buyer, the Sellers and the Escrow Agent, substantially in the
form attached hereto as Exhibit A.
“Escrow
Amount” means Five Hundred Thousand Dollars ($500,000).
“Escrow
Fund” means the Escrow Amount deposited with the Escrow Agent, including any remaining interest or other amounts earned thereon.
“Estimated
Purchase Price” means (i) Thirteen Million Dollars ($13,000,000), plus (ii) the Estimated Cash, plus (iii) the
Working Capital Overage, if any, minus (iv) the Estimated Indebtedness, minus (v) the Working Capital Underage, if any,
minus (vi) the Estimated Transaction Expenses, minus (vii) the Escrow Amount.
4
“Fifth
Anniversary Stock Consideration” means an amount of shares of Parent Common Stock equal to the quotient of Four Hundred Thousand
Dollars ($400,000) divided by the Ten-Day VWAP as of the Fifth Closing Anniversary.
“Fifth
Closing Anniversary” means May 22, 2031.
“First
Anniversary Stock Consideration” means an amount of shares of Parent Common Stock equal to the quotient of One Million Four
Hundred Thousand Dollars ($1,400,000) divided by the Ten-Day VWAP as of the First Closing Anniversary.
“First
Closing Anniversary” means May 22, 2027.
“Flow-Through
Tax Return” means IRS Form 1120-S and any similar Tax Return of the Company to the extent that items of income, gain, loss,
deduction and credit flow-through to Sellers for applicable income Tax purposes.
“Fourth
Anniversary Stock Consideration” means an amount of shares of Parent Common Stock equal to the quotient of One Million Four
Hundred Thousand Dollars ($1,400,000) divided by the Ten-Day VWAP as of the Fourth Closing Anniversary.
“Fourth
Closing Anniversary” means May 22, 2030.
“Fundamental
Representations” means the representations and warranties of (i) the Sellers in Section 3.1 (Organization), Section
3.2 (Authority), Section 3.3 (No Conflict; Required Filings and Consents), Section 3.4 (Interests) and Section 3.5
(Brokers) of this Agreement and (ii) the Company in Section 4.1 (Organization and Qualification), Section 4.2 (Authority),
Section 4.4 (No Conflict; Required Filings and Consents), Section 4.5 (Capitalization), Section 4.6 (Equity Interests)
and (iii) the Buyer Parties in Section 5.1 (Organization), Section 5.2 (Authority), Section 5.3 (No Conflict; Required
Filings and Consents), and Section 5.5 (Brokers) of this Agreement.
“Fraud”
means, with respect to any Person, actual (and not constructive) common law fraud under Delaware law.
“GAAP”
means United States generally accepted accounting principles as in effect as of the time of the preparation of the applicable financial
statements.
“Governmental
Authority” means any United States or non-United States national, federal, state, provincial or local governmental, regulatory
or administrative authority, agency or commission or any judicial or arbitral body (public or private) of competent jurisdiction.
“Government
Contract” means any contractual agreement of any kind, between the Company, on the one hand, and (i) any Governmental Authority,
(ii) any prime contractor of a Governmental Authority in its capacity as a prime contractor, or (iii) any higher-tier subcontractor of
a Governmental Authority in its capacity as a subcontractor, on the other hand. Unless otherwise indicated, no task, purchase or delivery
order under a Government Contract will constitute a separate Government Contract, for purposes of this definition, but will be part of
the Government Contract under which it was issued.
5
“Government
Official” means, collectively, any officer, employee, official, representative, or any Person acting for or on behalf of any
Governmental Authority or public international organization, any political party or official thereof and any candidate for political
office.
“Hazardous
Materials” means any material, substance, or waste that is identified or regulated by any Governmental Authority because of
its potential ignitability, reactivity, corrosivity, toxicity, or other hazard to human health or the environment, including hazardous
wastes, hazardous materials, hazardous constituents, hazardous substances, extremely hazardous substances, restricted wastes, toxic substances,
contaminants, pollutants, radioactive materials, petroleum, oils, per- and poly-fluorinated alkyl substances, and polychlorinated biphenyls.
“Income
Tax” means any U.S. federal, state, local, or non-U.S. income Tax or other Tax imposed on or with reference to net income,
profits, net profits, margin, or other similar measures (including withholding Taxes imposed by reference to the net or gross income
(other than wages) of another Person, but excluding, in each case, for the avoidance of doubt, any ad valorem, property, excise, sales,
use, goods and services, severance, production, utility and other similar Taxes not imposed on or with reference to any such measures).
“Indebtedness”
means, as at a specified time, without duplication, in each case as of the Calculation Time (a) the outstanding principal amount, plus
any related accrued and unpaid interest, and to the extent actually payable, fees and prepayment premiums or penalties, of (i) indebtedness
for borrowed money of the Company and (ii) indebtedness of the Company evidenced by any note, bond or debenture, (b) reimbursement obligations
of the Company under letters of credit, performance bonds, surety bonds, bankers acceptances and similar obligations, in each case only
to the extent drawn, (c) all obligations under leases required to be classified as finance leases or capital leases by the Company in
accordance with GAAP, (d) all obligations under any interest rate, currency or other hedging, swap, collar, cap, forward contracts or
similar agreements, (e) any amounts for the contingent, deferred or unpaid purchase price of assets, securities, goods and services,
including any earn out liabilities or any conditional sale or other title retention agreement with respect to property acquired by the
Company, (f) declared or accrued but unpaid dividends, (g) unpaid management fees payable to the Sellers or any of their Affiliates,
(h) financed insurance premiums, (i) all obligations secured by a purchase money mortgage or other Lien to secure all or part of the
purchase price of property subject to such mortgage or Lien; (j) all obligations secured by Encumbrances on the Company or its assets;
(k) any off balance sheet financial obligations in the nature of indebtedness, including synthetic leases and project financing; (l)
the face value of any surety bonds, performance bonds or security deposits; (m) all obligations of the Company to any Affiliate or to
any manager, member, officer or employee of the Company or to any Affiliate of the foregoing other than Liabilities to current employees
of the Company incurred in the ordinary course of business; (n) any “applicable employment taxes” (as defined in Section
2302(d)(1) of the CARES Act) that the Company has elected to defer prior to the Closing Date pursuant to Section 2302 of the CARES Act
(which amount, for the avoidance of doubt, shall not be less than zero and shall not include any offsets or reductions with respect to
Tax refunds or overpayments of Tax) and any payroll Tax obligations that the Company has deferred (for example, by a failure to timely
withhold, deposit or remit any such amounts in accordance with the applicable provisions of the Code and Treasury Regulations promulgated
thereunder) pursuant to or in connection with any U.S. presidential memorandum or executive order; (o) any accrued but unpaid Taxes of
the Company for any Pre-Closing Tax period but expressly excluding any Cash-to-Accrual Taxes; (p) any Liabilities, whether or not accrued,
associated with employee bonuses (including, for the avoidance of doubt, undocumented bonuses issued in the Company’s ordinary
course of business), signing bonuses, management performance bonuses and relocation bonuses not included in Transaction Expenses (and
the employer portion of all applicable employment, payroll and similar Taxes related thereto); (q) all accrued but unused paid time off,
vacation, sick leave or similar compensated absence obligations of the Company, whether or not vested or required to be paid upon termination
(and the employer portion of all applicable employment, payroll and similar Taxes related thereto); (r) deferred revenue; (s) all budgeted,
approved, deferred or in process capital obligations and commitments of the Company; (t) any unfunded or underfunded benefit liability
with respect to any retirement plan or nonqualified deferred compensation plan, agreement or arrangement and (u) all obligations of the
type referred to in clauses (a) through (h) of other Persons for the payment of which the Company is responsible or liable, as obligor,
guarantor, surety or otherwise, including any guarantee of such obligations. For purposes of this Agreement, Indebtedness includes the
aggregate amount of any accrued interest, accreted value, breakage costs, prepayment premiums or penalties related thereto, unpaid fees
or other costs or expenses associated with the prepayment or termination of any Indebtedness. For avoidance of doubt, as used herein,
Indebtedness shall not include any Liabilities or obligations that are taken into account in the calculation of Transaction Expenses
and shall not include any amounts that are included in the final determination of Net Working Capital. Further, and for avoidance of
doubt, Indebtedness expressly excludes any Cash-to-Accrual Taxes.
6
“Indemnified
Taxes” means (a) all Taxes (or the non-payment thereof) of the Company for any Pre-Closing Tax Period, including all taxes
attributable to any Deferred Pre-Closing Tax Effects, (b) any and all Taxes of any Person (other than the Company) imposed on the Company
as a transferee or successor, by contract or pursuant to any Law, rule, or regulation, which Taxes relate to an event or transaction
occurring before the Closing and (c) any Taxes of any Seller. For avoidance of doubt, the Parties hereto acknowledge and agree that for
purposes of this Agreement, Indemnified Taxes expressly excludes any Cash-to-Accrual Taxes, for which Sellers shall have no indemnity
obligation.
“Intellectual
Property” means all intellectual property, intellectual property rights and related priority rights protected, created or arising
under the Laws of the United States or any other jurisdiction or under any international convention, including all (a) patents and patent
applications, including any continuation, continuation-in-part, divisional and provisional applications and any patents issuing thereon
and any reissues, reexaminations, substitutes and extensions of any of the foregoing (“Patents”), (b) trademarks,
service marks, trade names, trade dress, logos, corporate names, social media handles and accounts and other source or business identifiers
and any registrations, applications, renewals and extensions of any of the foregoing and all goodwill associated with any of the foregoing
(“Marks”), (c) Internet domain names, uniform resource locators and social media accounts and handles, (d) copyrights,
mask works, works of authorship and any registrations, applications, renewals, extensions and reversions of any of the foregoing, (e)
trade secrets, know-how and confidential and proprietary information, information, designs, formulae, compositions, algorithms, procedures,
methods, techniques, ideas, research and development, data, specifications, processes, inventions (whether patentable or not and whether
reduced to practice or not) and improvements, in each case, excluding any of the foregoing that comprise or are protected by issued Patents
or published Patent applications; (f) Software; and (g) other proprietary rights relating to any of the foregoing.
“International
Trade Laws” means any applicable (a) Sanctions; (b) U.S. export control Laws (including, without limitation, the International
Traffic in Arms Regulations (22 CFR §§ 120-130, as amended)), the Export Administration Regulations (15 CFR §§ 730-774,
as amended) and any regulation, order, or directive promulgated, issued or enforced pursuant to such Laws; (c) Laws pertaining to imports
and customs, including those administered by the Bureau of Customs and Border Protection in the United States Department of Homeland
Security (and any successor thereof) and any regulation, order, or directive promulgated, issued or enforced pursuant to such Laws; (d)
the anti-boycott laws administered by the U.S. Department of Commerce and the U.S. Department of the Treasury; and (e) export, import
and customs Laws of other countries in which the Sellers or the Company, have conducted and/or currently conduct business.
“IRS”
means the Internal Revenue Service of the United States.
7
“Knowledge”
with respect to the Company means the actual knowledge of the Persons set forth in Schedule 1.1(a) of the Disclosure Schedules,
in each case, after reasonable inquiry of their direct reports who would reasonably be expected to have knowledge of the applicable subject
matter.
“Law”
means any statute, law (including common law), ordinance, regulation, rule, code, executive order, injunction, judgment, decree, order
or other requirement of any Governmental Authority.
“Leased
Real Property” means the real property leased, subleased, licensed, used or occupied by the Company, in each case, as tenant,
subtenant, licensee or user, together with, to the extent leased by the Company, all buildings and other structures, facilities, systems
or improvements previously or hereafter located thereon and all easements, licenses, rights and appurtenances of the Company relating
to the foregoing.
“Lookback
Date” means January 1, 2020.
“Losses”
means any cost, loss, liability, obligation, damage, deficiency, Tax, expense (including costs of investigation and defense and reasonable
and documented actual attorneys’ fees and expenses), fine, penalty, judgment, award, or assessment; provided, however, that Loss
shall not include any speculative, exemplary, special or punitive damages, unless and to the extent that any such damages result from
any Third Party Action.
“Material
Adverse Effect” means any event, change, occurrence or effect that, individually or in the aggregate, (a) would prevent, delay
or impede the performance by the Company of its obligations under this Agreement or any of the other Transaction Documents to which it
will be a party or the consummation by the Company of the transactions contemplated hereby or thereby or (b) would reasonably be expected
to have a material adverse effect on the business, condition (financial or otherwise), assets, liabilities or results of operations of
the Company, taken as a whole; provided, however, that in the case of clause (b) no event, change, occurrence or effect
to the extent resulting from the following shall be deemed to constitute a Material Adverse Effect: (i) any changes in general economic
or business conditions, or in the financial, debt, banking, capital, credit or securities markets, or in interest or exchange rates,
in each case, in the United States or elsewhere in the world, (ii) general changes or developments in any of the industries in which
the Company operates, (iii) any adoption, implementation, modification, repeal or other changes in any applicable Laws or any changes
in applicable accounting regulations or principles (including GAAP) or in interpretations of any of the foregoing, in each case after
the date hereof, (iv) any failure by the Company to meet internal or published projections, forecasts or revenue or earnings predictions,
in and of itself (provided, that the facts or occurrences giving rise to or contributing to such failure that are not otherwise
excluded from the definition of “Material Adverse Effect” may be taken into account in determining whether there has been
a Material Adverse Effect), (v) political, geopolitical or regulatory conditions or any outbreak, continuation or escalation of any military
conflict, declared or undeclared war, armed hostilities, civil unrest, public demonstrations, acts of sabotage, acts of foreign or domestic
terrorism, or governmental shutdown or slowdown, or any escalation or worsening of any such conditions, (vi) natural or manmade disasters,
hurricanes, floods, tornados, tsunamis, earthquakes or other weather conditions or other acts of God, (vii) any epidemic, pandemic or
disease outbreak (including COVID-19), or any escalation or worsening of such conditions, (viii) the effect of any action taken by Buyer
Parties or their respective Affiliates with respect to the transactions contemplated hereby; (ix) the announcement, pendency or completion
of the transactions contemplated by this Agreement, or (x) any action required by this Agreement or any action taken (or omitted to be
taken) with the written consent of or at the written request of Buyer Parties; provided, in the case of clauses (i), (ii), (iii),
(v), (vi), and (vii), to the extent the impact of such event, change, occurrence or effect is not disproportionately adverse to the Company,
taken as a whole, relative to other companies operating in the industries in which the Company operates.
8
“Mrs.
Boyd” means Angela Boyd.
“Net
Working Capital” means, as at a specified time and without duplication, an amount (which may be positive or negative) equal
to (i) the current assets of the Company minus (ii) the current liabilities of the Company in each case before taking into account
the consummation of the transactions contemplated hereby, and calculated in accordance with GAAP. Notwithstanding anything to the contrary
herein, in no event shall “Net Working Capital” include any items included in Cash, Indebtedness, or Transaction Expenses.
“NRC”
means the U.S. Nuclear Regulatory Commission.
“Nuclear
Law” means any Law relating to the development, production and use of nuclear energy or the use, manufacture, fabrication,
handling, transport, processing, production, possession, use, storage, disposal, or import or export of Nuclear Materials, prescribed
equipment and prescribed information.
“Nuclear
Materials” means any nuclear fuel, radioactive materials, substances, gasses and ores (including natural radiological substances
concentrated by human activity to a level not normally found in nature), and any products containing any of the foregoing.
“Offer
Letter” means an offer letter, including an employee confidentiality and invention assignment agreement in substantially the
forms mutually agreed between the Company and the Buyer.
“Open
Source Software” means any software that contains or is derived in any manner (in whole or in part) from any software, code
or libraries that are distributed as free software or as open source software or under any licensing or distribution models similar to
open source, including any software licensed under or subject to terms that require source code to be provided or made available to subsequent
licensees or sublicensees (regardless of whether the license restricts source code from being distributed in modified form), including
any software licensed under or subject to the Artistic License, the Mozilla Public License, the GNU Affero GPL, the GNU GPL, the GNU
LGPL, any other license that is defined as an Open Source License by the Open Source Initiative.
“Organizational
Documents” means, with respect to any Person that is not an individual, the articles or certificate of incorporation, amalgamation
or organization, by-laws, limited partnership agreement, partnership agreement, limited liability company agreement, shareholders agreement
or such other organizational documents of such Person.
“Owned
Intellectual Property” means Intellectual Property that is owned or purported to be owned by the Company.
“Owned
Real Property” means the real property owned by the Company, if any, together with all buildings and other structures, facilities,
improvements and fixtures located thereon and all easements, licenses, rights, interests and appurtenances of the Company relating to
the foregoing.
“Parent
Common Stock” means shares of common stock of the Parent, par value $0.0001 per share.
“Payoff
Letters” means a payoff letter with respect to each of (i) the Equipment Finance Agreement dated February 3, 2023 between the
Company and Highland Capital Corporation, as amended or modified and (ii) the Finance Agreement dated January 31, 2023 between the Company
and LEAF Capital Funding, LLC, as amended or modified, in each case, setting forth the terms of payment, satisfaction, discharge, release
and termination in full of all Indebtedness thereunder.
9
“Permitted
Encumbrance” means (i) statutory liens for current Taxes not yet due and payable (taking into account extensions granted in
the ordinary course and that do not result in the imposition of a penalty) or with respect to which the validity or amount is being contested
in good faith through appropriate proceedings and for which adequate reserves with respect thereto are maintained on the Company’s
books in accordance with GAAP, (ii) mechanics’, carriers’, workers’, repairers’ and other similar liens arising
in the ordinary course of business with respect to any amounts not yet due and payable or with respect to which there is no default on
the part of the Company or the validity or amount is being contested in good faith through appropriate proceedings and for which adequate
reserves with respect thereto are maintained on the Company’s books in accordance with GAAP, (iii) zoning, entitlement, conservation
restriction and other land use and environmental regulations promulgated by Governmental Authorities, (iv) Encumbrances arising in the
ordinary course of business under worker’s compensation, unemployment insurance, social security, retirement and similar legislation,
(v) nonexclusive licenses of Intellectual Property granted to customers in the ordinary course of business solely in the form of shrink-wrap,
click-wrap or other off-the-shelf, commercially available software or standard form end-user licenses, which do not grant any right to
source code, exclusive rights or material customization or development rights, and (vi) all restrictions, easements, minor imperfections
of title, charges and rights-of-way that would not reasonably be expected to impair the current use or occupancy of any real property
subject thereto.
“Person”
means an individual, corporation, partnership, limited liability company, limited liability partnership, syndicate, person, trust, association,
organization or other entity, including any Governmental Authority, and including any successor, by merger or otherwise, of any of the
foregoing.
“Personal
Data” means any information about an individual person which is used or could be used to identify the individual, alone or
in combination with any other information or data available to the Company, or which otherwise constitutes “personal information,”
“personally identifiable information” or any other similar terms under applicable Law.
“Pre-Closing
Tax Period” means any taxable period ending on or prior to the date immediately preceding the Closing Date and the portion
of any Straddle Period that ends on, and includes, the date immediately preceding the Closing Date.
“Privacy
Laws” means (i) all applicable Laws issued by any Governmental Authority and binding industry guidance, in each case as amended,
consolidated, re-enacted or replaced from time to time, relating to the privacy, security, transfer or Processing of Personal Data, data
breach notification, website and mobile application privacy policies and practices, Social Security number protection, Processing and
security of payment card information, and email, text message, or telephone communications and (ii) as applicable, the Payment Card Industry
Data Security Standard.
“Pro
Rata Portion” means, (i) with respect to Mr. Boyd, 55%, and, (ii) with respect to Onium, 45%.
“Process”
or “Processing” means the collection, use, storage, processing, recording, distribution, transfer, import, export,
disposal or disclosure of data or as otherwise defined under Privacy Laws.
“Product”
means each product and service developed, marketed, licensed, sold, performed, produced, serviced, distributed or otherwise made available
by the Company, including any product or service currently under development by the Company.
“Public
Health Measures” means any quarantine, “shelter-in-place,” “stay at home,” furlough, workforce reduction,
social distancing, shut down, closure, sequester or any other Law, order, directive, guideline or recommendation issued or promulgated
by any Governmental Authority, the World Health Organization or any industry group in connection with or in response to any epidemic,
pandemic or outbreak of disease (including, for the avoidance of doubt, COVID-19), or in connection with or in response to any other
public health conditions, in each case, whether such Law, order, directive, guideline or recommendation is in place currently or is issued,
promulgated or modified hereafter.
10
“Purchase
Price” means (i) the Estimated Purchase Price, as it may be adjusted in accordance with Section 2.4 plus (ii) any amounts
paid to the Sellers out of the Escrow Fund.
“Registered
Company Intellectual Property” means all Owned Intellectual Property that has been issued by, registered with, or the subject
of an application filed with, as applicable, the United States Patent and Trademark Office, the United States Copyright Office, private
domain name registrar, or any similar office or agency anywhere in the world that has not lapsed or expired or that the Sellers, in their
reasonable business judgment, has not decided to cancel, abandon, allow to lapse or not renew.
“Registration
Rights Agreement” means the Registration Rights Agreement between the Parent and the Sellers, substantially in the form attached
hereto as Exhibit B, to be entered into at the Closing.
“Restricted
Party” means each of the following: Mr. Boyd, Onium, and Mrs. Boyd.
“Restrictive
Covenants Agreement” means a Restrictive Covenants Agreement between the Buyer and each Restricted Party in substantially the
form attached hereto as Exhibit C.
“Related
Parties” means, with respect to a Person, such Person’s Affiliates and its and their respective current and former direct
and indirect equityholders, members, directors, managers, partners (limited and general), officers, controlling Persons, employees, agents,
Representatives and the respective successors and assigns of each of the foregoing.
“Representatives”
means, with respect to any Person, the officers, directors, principals, employees, agents, auditors, advisors, bankers and other representatives
of such Person.
“Sanctioned
Person” means any Person that is: (a) identified on any Sanctions- or export-related restricted party list, including the Specially
Designated Nationals and Blocked Persons List, Sectoral Sanctions Identifications List, and Foreign Sanctions Evaders List maintained
by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”); the Denied Persons, Unverified,
or Entity Lists, maintained by the U.S. Department of Commerce’s Bureau of Industry and Security; the Debarred List or non-proliferation
sanctions lists maintained by the U.S. State Department’s Directorate of Defense Trade Controls; or any other similar list maintained
by any other Governmental Authority with jurisdiction over any party to this Agreement; (b) organized, resident, or located in a country,
territory, or geographical region which is itself the subject or target of comprehensive Sanctions (as of the date of this Agreement,
Cuba, Iran, North Korea, and the Crimea, Donetsk People’s Republic and Luhansk People’s Republic regions of Ukraine, and
prior to July 1, 2025, Syria); or (c) owned, in the aggregate, 50% or more or controlled, directly or indirectly, by a Person or Persons
described in clause (a) or (b).
“Sanctions”
means economic or financial sanctions, requirements or trade embargoes imposed, administered or enforced from time to time by the United
States (including, OFAC, the U.S. Department of State and the U.S. Department of Commerce), the United Nations Security Council, the
European Union, His Majesty’s Treasury of the United Kingdom, or any Governmental Authority with jurisdiction over any party to
this Agreement.
“Second
Anniversary Stock Consideration” means an amount of shares of Parent Common Stock equal to the quotient of One Million Four
Hundred Thousand Dollars ($1,400,000) divided by the Ten-Day VWAP as of the Second Closing Anniversary.
11
“Second
Closing Anniversary” means May 22, 2028
“Security
Incident” means any actual (i) breach of security or other unauthorized or unlawful access, acquisition, exfiltration, manipulation,
erasure, loss, use or disclosure that compromises the confidentiality, integrity, availability or security of Company Data or the Systems;
(ii) unauthorized acquisition, interruption, modification, loss, theft, corruption, interference or unauthorized Processing of any data
or information; or (iii) compromise, intrusion, misuse, interference or unauthorized access to or use of any System, or any unauthorized
Processing of any data or information hosted, stored on or accessed therefrom, including any ransomware attack, distributed denial-of-service
attack or any other similar incident, in each instance, regardless of whether any such incident or breach triggers any notice or reporting
obligations under applicable Laws.
“Seller
Material Adverse Effect” means any event, change, occurrence or effect that would prevent, materially delay or materially impede
the performance by the Sellers or the Company of their respective obligations under this Agreement or any of the other Transaction Documents
to which they will be a party or the consummation by the Sellers or the Company of the transactions contemplated hereby or thereby.
“Software”
means all (a) computer programs and other software, including software implementations of algorithms, models, and methodologies, whether
in source code, object code or other form, including libraries, subroutines and other components thereof; (b) computerized databases
and other computerized compilations and collections of data or information, including all data and information included in such databases,
compilations or collections; and (c) all documentation, including development, diagnostic, support, user and training documentation related
to any of the foregoing.
“Straddle
Period” means any taxable period that includes (but does not end on) the date immediately preceding the Closing Date.
“Special
Representations” means the representations and warranties of the Company in Section 4.12 (Employee Benefit Plans), Section
4.16 (Intellectual Property; IT Assets; Data Privacy and Security), Section 4.17 (Taxes) and Section 4.18 (Environmental
Matters).
“Subsidiary”
means, with respect to any Person, any other Person of which (a) a majority of the total voting power of Equity Interests (without regard
to the occurrence of any contingency) entitled to vote in the election of directors, managers or trustees thereof is at the time owned
or controlled, directly or indirectly, by such first Person, or one or more of the other Subsidiaries of such Person or a combination
thereof, or (b) any Person of which a majority of the ownership interests are owned or controlled, directly or indirectly, by such Person
or one or more Subsidiaries of such Person or a combination thereof. For purposes of this definition, a Person shall be deemed to have
a majority ownership interest in another Person if such Person is allocated a majority of the gains or losses of such Person or is or
controls the managing director, the board, or general partner of such Person.
“Systems”
means all of the Company’s information technology and operational technology systems, resources, software, hardware, devices, and
networks, whether or not hosted on third party infrastructure, in each case, directly controlled by the Company.
“Target
Net Working Capital” means $472,332.00.
“Tax
Return” means any return, declaration, report, statement, form, claim for refund, information statement or other documents,
including any related or supporting schedules, statements or documents and FinCEN Form 114, and any amendment or modification thereto,
required to be filed or filed with a Governmental Authority with respect to Taxes.
12
“Taxes”
means (i) any and all U.S. federal, state or local or non-U.S. income, gross receipts, franchise, estimated, alternative minimum, add-on
minimum, sales, use, transfer, registration, value added, excise, natural resources, severance, stamp, occupation, premium, windfall
profit, environmental, customs, duties, real property, personal property, ad valorem, capital stock, social security, unemployment,
disability, payroll, license, employee or other withholding, composite, healthcare or other tax of any kind (together with any and all
interest, penalties (including any penalties resulting from the failure to file a Tax Return whether or not any Taxes were required to
be reflected on such Tax Return), additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Authority
and (ii) liability for the payment of any amounts of the type described in clause (i) above of another Person arising as a result of
(A) being (or ceasing to be) a member of any Affiliated Group (or being included (or required to be included) in any Tax Return relating
thereto) or (B) any transferee or secondary liability or any liability assumed by contract, Law, or otherwise.
“Ten-Day
VWAP” means the volume weighted average price per share of Parent Common Stock as reported by Bloomberg and calculated during
regular trading hours over the ten consecutive Trading Day period ending on the Trading Day immediately prior to the applicable reference
date.
“Third
Anniversary Stock Consideration” means an amount of shares of Parent Common Stock equal to the quotient of One Million Four
Hundred Thousand Dollars ($1,400,000) divided by the Ten-Day VWAP as of the Third Closing Anniversary.
“Third
Closing Anniversary” means May 22, 2029.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which Parent Common Stock is listed or quoted for trading on the
date in question: the NYSE American, The Nasdaq Capital Market, The Nasdaq Global Market, The Nasdaq Global Select Market, or the New
York Stock Exchange (or any successors to any of the foregoing).
“Transactions”
means the transactions contemplated by this Agreement and the Transaction Documents.
“Transaction
Documents” means this Agreement, the Escrow Agreement, the Registration Rights Agreement, the Restrictive Covenants Agreement
and the other written documents, instruments and certificates executed under or in connection with this Agreement.
“Transaction
Expenses” means, without duplication, to the extent not paid by the Sellers or the Company prior to Closing, the fees, costs
and expenses incurred or to be incurred or subject to reimbursement by or on behalf of the Company, whether accrued or not, in connection
with the process of selling the Company or the negotiation, preparation or execution of this Agreement or the other Transaction Documents
or the performance or consummation of the transactions contemplated by this Agreement, including: (i) the fees, costs and expenses of
the Sellers or the Company for investment bankers, attorneys, accountants, service providers and other consultants and advisors, (including
brokerage fees, commissions, finders’ fees or financial advisory fees), (ii) all Liabilities or obligations for severance, stay
bonuses, retention bonuses, transaction bonuses, change of control payments and other similar payments triggered or voluntarily payable
as a result of the consummation of the transactions contemplated by this Agreement, including the employer portion of all applicable
employment, payroll and similar Taxes related thereto, and (iii) fifty percent (50%) of (A) all Transfer Taxes and (B) all fees and expenses
associated with obtaining the Escrow Agent; and for avoidance of doubt, any fees and expenses associated with obtaining the D&O Insurance
shall expressly not be deemed Transaction Expenses hereunder and shall be paid by Buyer.
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“Treasury
Regulations” means the United States Treasury regulations promulgated under the Code.
“Willful
Breach” means a deliberate act or failure to act, which act or failure to act constitutes in and of itself a material breach
of any covenant or agreement set forth in this Agreement, regardless of whether breaching such covenant or other agreement was the conscious
object of the act or failure to act.
“Working
Capital Overage” shall exist when (and shall be equal to the amount by which) the Estimated Net Working Capital exceeds the
Target Net Working Capital.
“Working
Capital Underage” shall exist when (and shall be equal to the amount by which) the Target Net Working Capital exceeds the Estimated
Net Working Capital.
Section 1.2 Table
of Definitions. The following terms have the meanings set forth in the Sections referenced below:
Term
Location
Additional
Listing Application
Section
6.6
Adjustment
Cap
Section
2.4(g)
Agreement
Preamble
Audited
Costs
Section
6.9(c)
Balance
Sheet Date
Section
4.8(a)
Basket
Section
8.3(b)
Books
and Records
Section
4.1(d)
Buyer
Preamble
Buyer
Indemnitees
Section
8.1
Buyer
Losses
Section
8.1
Buyer
Parties
Preamble
Buyer
Party
Preamble
Closing
Section
2.2(a)
Closing
Cash
Section
2.4(b)
Closing
Indebtedness
Section
2.4(b)
Closing
Net Working Capital
Section
2.4(b)
Closing
Transaction Expenses
Section
2.4(b)
Company
Preamble
Company
Trade Secrets
Section
4.16(d)
Cure
Period
Section
2.2(i)(ii)
D&O
Insurance
Section
6.4(b)
Data
Protection Requirements
Section
4.16(j)
Data
Room
Section
9.4
14
Term
Location
Deferred
Stock Consideration
Section
2.2(i)(i)
Delaware
Court
Section
9.7(b)
Disclosure
Schedules
Article
III
Disputed
Items
Section
2.4(d)
ERISA
Section
4.12(a)
Estimated
Cash
Section
2.4(a)
Estimated
Indebtedness
Section
2.4(a)
Estimated
Net Working Capital
Section
2.4(a)
Estimated
Transaction Expenses
Section
2.4(a)
Excess
Amount
Section
2.4(g)
Exchange
Act
Section
5.8
Final
Closing Statement
Section
2.4(b)
Financial
Statements
Section
4.8(a)
Forfeited
Stock Consideration
Section
2.2(i)(i)
Guaranteed
Obligations
Section
9.17
Independent
Accounting Firm
Section
2.4(d)
Insurance
Policies
Section
4.13(a)
Interests
Recitals
Interim
Financial Statements
Section
4.8(a)
IP
Assignment Agreement
Section
4.16(e)
Lock-Up
Period
Section
6.7(a)
Malicious
Code
Section
4.16(h)
Material
Contracts
Section
4.19(a)
Material
Customer
Section
4.20(a)
Material
Supplier
Section
4.20(b)
Mr.
Boyd
Preamble
Net
Adjustment Amount
Section
2.4(g)(i)
Notice
of Disagreement
Section
2.4(c)
Nasdaq
Section
5.8
One
Year 481(a) Adjustments for the S Short Year
Section
7.6(b)
Parent
SEC Filings
Section
5.9
PCAOB
Audited Financial Statements
Section
6.9(a)
PCAOB
Auditor
Section
6.9(a)
15
Term
Location
Permits
Section
4.10(c)
Preliminary
Closing Statement
Section
2.4(a)
RCA
Breach
Section
2.2(i)(ii)
RCA
Forfeited Stock Consideration
Section
2.2(i)(ii)
Restricted
Shares
Section
6.7(a)
S
Short Year
Section
7.7
S
Termination Year
Section
7.7
SEC
Section
5.9
Section
481(a) Adjustments
Section
7.6(b)
Securities
Act
Section
3.7
Seller
Indemnitees
Section
8.2
Seller
Losses
Section
8.2
Seller
Prepared Tax Return
Section
7.1(a)
Seller
Stock Threshold
Section
2.2(k)
Sellers
Preamble
Tax
Contest
Section
7.5
Tax
Accounting Method Change
Section
7.6
Transfer
Taxes
Section
7.3
Article
II
PURCHASE AND SALE
Section
2.1 Purchase and Sale of the Interests. Upon the terms and subject to the conditions of this Agreement, at the Closing, the Sellers
shall sell, assign, transfer, convey and deliver the Interests to the Buyer and the Buyer shall purchase the Interests from the Sellers,
for the Aggregate Closing Consideration and the Aggregate Post-Closing Stock Consideration which shall be paid and/or issued as provided
in this Article II.
Section
2.2 Closing.
(a)
The sale and purchase of the Interests shall take place at a closing (the “Closing”) which shall occur simultaneously
with the execution and delivery of this Agreement, remotely via electronic exchange of documentation and consideration required to be
delivered at Closing, at 10:00 a.m., Eastern time, or at such other place or at such other time or on such other date as the Sellers
and the Buyer mutually may agree in writing. The day on which the Closing takes place is referred to as the “Closing Date.”
16
(b)
At the Closing:
(i)
the Buyer shall issue or pay, as applicable, or cause to be issued or paid, as applicable, to each of the Sellers their Pro Rata Portion
of:
(A)
the Aggregate Closing Stock Consideration, free and clear of all Encumbrances (other than Encumbrances created by the Sellers, arising
under applicable securities Laws or pursuant to Section 6.7 of this Agreement); and
(B)
an amount equal to the Aggregate Cash Closing Consideration;
(ii)
the Buyer shall repay, or cause to be repaid, on behalf of the Company, the amount payable to each counterparty or holder of Indebtedness
set forth on the Payoff Letters;
(iii)
the Buyer shall pay, on behalf of the Company and to the extent unpaid as of immediately prior to the Closing, an amount equal to the
Estimated Transaction Expenses to each Person who is owed a portion thereof; provided, that, if so directed by the Company, any such
amounts constituting compensatory payments shall instead be delivered to the Company for payment by the Company to such individual through
the Company’s payroll system (reduced by the amount of any Tax withholdings that are required to be deducted and withheld with
respect to such payment);
(iv)
the Buyer shall deposit or cause to be deposited the Escrow Amount in an account with the Escrow Agent by wire transfer in immediately
available funds, to be managed and paid out by the Escrow Agent pursuant to the terms of the Escrow Agreement;
(v)
the Buyer shall deliver or cause to be delivered to the Sellers:
(A)
a counterpart of the Escrow Agreement, executed by the Buyer;
(B)
a counterpart to each of the Restrictive Covenants Agreements, executed by the Buyer;
(C)
a counterpart of the Registration Rights Agreement, executed by the Parent;
(D)
a counterpart of the Boyd Employment Agreement, executed by the Parent; and
(E)
a counterpart of the Boyd Consulting Agreement, executed by the Parent.
(vi)
the Sellers shall deliver or cause to be delivered to the Buyer:
(A)
an executed instrument effecting the sale, assignment and transfer by the Sellers to the Buyer of the Interests, free and clear of all
Encumbrances, including any documentation reasonably requested by the Buyer to confirm that as of the Closing the Buyer is the sole member
of the Company;
(B)
a counterpart of the Escrow Agreement, executed by the Sellers;
17
(C)
duly executed copies of the Payoff Letters, including any financing statement terminations and lien releases reasonably requested by
the Buyer;
(D)
a counterpart to a Restrictive Covenants Agreement, executed by each Restricted Party;
(E)
a counterpart of the Registration Rights Agreement, executed by the Sellers;
(F)
evidence in form and substance reasonably satisfactory to the Buyer, that the Seller Agreements have been terminated in accordance with
Section 6.1;
(G)
evidence in form and substance reasonably satisfactory to the Buyer, that each filing, notice, authorization, approval, order, permit,
determination or consent required to be filed, delivered or obtained pursuant to Schedule 4.4(a) and Schedule 4.4(b) of
the Disclosure Schedules has been duly filed, delivered and obtained, including copies of all such filings and written consents or approvals;
(H)
a duly executed amendment to that certain Commercial Lease Agreement, dated as of January 2, 2025, between Onium and the Company, in
substantially the form attached hereto as Exhibit D;
(I)
a counterpart of an Offer Letter duly executed by each of the following individuals: (i) Kaleb T. Boyd, (ii) Billy C. Hunt, (iii) Joseph
G. Phillips, (iv) Gabrielle S. Ragan, (v) Matthew D. King, and (vi) Alexander F. Bache;
(J)
a counterpart of the Boyd Employment Agreement, duly executed by Mr. Boyd;
(K)
a counterpart of the Boyd Consulting Agreement, duly executed by Mrs. Boyd;
(L)
two USB Drives containing a true, complete, and correct copy of the Data Room, as of 4:00 p.m., New York time, on the date that is two
(2) Business Days prior to the Closing Date; and
(M)
properly completed IRS Form W-9, executed by each of the Sellers or their respective regarded owner.
(c)
All payments hereunder shall be made by wire transfer of immediately available funds in United States dollars to such account as may
be designated to the payor by or on behalf of the payee at least two Business Days prior to the applicable payment date.
(d)
Subject to Section 2.2(i), on or prior to ten Trading Days after the First Closing Anniversary, the Parent shall issue to each
of the Sellers their Pro Rata Portion of the First Anniversary Stock Consideration.
(e)
Subject to Section 2.2(i), on or prior to ten Trading Days after the Second Closing Anniversary, the Parent shall issue to each
of the Sellers their Pro Rata Portion of the Second Anniversary Stock Consideration.
18
(f)
Subject to Section 2.2(i), on or prior to ten Trading Days after the Third Closing Anniversary, the Parent shall issue to each
of the Sellers their Pro Rata Portion of the Third Anniversary Stock Consideration.
(g)
Subject to Section 2.2(i), on or prior to ten Trading Days after the Fourth Closing Anniversary, the Parent shall issue to each
of the Sellers their Pro Rata Portion of the Fourth Anniversary Stock Consideration.
(h)
Subject to Section 2.2(i), on or prior to ten Trading Days after the Fifth Closing Anniversary, the Parent shall issue to each
of the Sellers their Pro Rata Portion of the Fifth Anniversary Stock Consideration.
(i)
Stock Consideration Matters.
(i)
Notwithstanding anything to the contrary contained herein, an aggregate amount of Two Million Dollars ($2,000,000) of the Aggregate Stock
Consideration (the “Deferred Stock Consideration”) shall be allocated ratably among the First Anniversary Stock Consideration,
Second Anniversary Stock Consideration, Third Anniversary Stock Consideration, Fourth Anniversary Stock Consideration and Fifth Anniversary
Stock Consideration (or as otherwise agreed by the parties in writing), subject to the terms and conditions of this Agreement. The issuance
of each applicable portion of the Deferred Stock Consideration to the Sellers shall be conditioned upon (A) Mr. Boyd’s continued
employment with the Company (or its Affiliates) as of the applicable payment date (but subject in all respects to the terms of the Boyd
Employment Agreement as to termination of such agreement), as set forth in Section 2.2(i)(ii) below; and (B) each Restricted Party’s
(other than Angela Boyd’s) compliance with the terms of the Restrictive Covenants Agreement to which such Restricted Party is a
party, as set forth in Section 2.2(i)(iii) below.
(ii)
In the event that Mr. Boyd is not employed by the Company (or its Affiliates) as of any such applicable payment date for any reason other
than (A) termination by the Company without Cause, (B) resignation by Mr. Boyd for Good Reason, or (C) Mr. Boyd’s death or Disability,
then the portion of the Deferred Stock Consideration scheduled to be issued on such date shall be forfeited and shall not be issued or
payable; provided, however, to the extent any Deferred Stock Consideration so forfeited and not issued or unpaid (collectively
“Forfeited Stock Consideration”) is later determined by a final, non-appealable order of a court of competent jurisdiction
to have been wrongly forfeited or wrongfully not issued or unpaid, then, in addition to the issuance of all such Forfeited Stock Consideration
which was wrongly withheld and wrongfully not issued and unpaid, Sellers shall be entitled to interest in the amount of ten percent (10.0%)
per annum on such wrongfully withheld and wrongfully not issued and unpaid Forfeited Stock Consideration accruing from the date such
amounts were due and payable to Sellers until the date such amounts are actually paid. For purposes of this Section, “Cause,”
“Good Reason” and “Disability” shall have the meanings set forth in the Boyd Employment Agreement. For the avoidance
of doubt, it is the intent of the parties that to the extent permitted by applicable law, any issuances of Deferred Stock Consideration
shall be treated as a portion of the Purchase Price payable to Sellers hereunder and expressly not as compensation to Mr. Boyd, and all
such issuances shall be treated and reported as such by the parties hereto on their respective Tax Returns. For avoidance of doubt, in
no event shall any portion of the Aggregate Post-Closing Stock Consideration other than unpaid and unissued Deferred Stock Consideration
be subject to the forfeiture provisions of this Section 2.2(i)(ii).
19
(iii)
Notwithstanding anything to the contrary contained herein, in the event that a Restricted Party (other than Angela Boyd) breaches any
term, condition, or obligation under the Restrictive Covenants Agreement to which such Restricted Party is a party that remains uncured
after written notice thereof and a reasonable opportunity to remedy such failure within thirty (30) days of such notice (if such failure
can reasonably be remedied) (each such breach, a “RCA Breach” and such period, the “Cure Period”),
then the Sellers shall immediately and irrevocably forfeit any and all rights to receive any portion of the Aggregate Stock Consideration
that remains unpaid or unissued as of the date on which such RCA Breach first occurred, and no shares of such Aggregate Stock Consideration
shall thereafter be issuable or deliverable to or for the benefit of the Sellers provided, however, to the extent any Aggregate
Stock Consideration so forfeited and not issued or unpaid (collectively “RCA Forfeited Stock Consideration”) is later
determined by a final, non-appealable order of a court of competent jurisdiction to have been wrongly forfeited or wrongfully not issued
or unpaid, then, in addition to the issuance of all such RCA Forfeited Stock Consideration which was wrongly withheld and wrongfully
not issued and unpaid, Sellers shall be entitled to interest in the amount of ten percent (10.0%) per annum on such wrongfully withheld
and wrongfully not issued and unpaid RCA Forfeited Stock Consideration accruing from the date such amounts were due and payable to Sellers
until the date such amounts are actually paid. In the event of a RCA Breach, to the extent any of the Aggregate Stock Consideration is
due to be issued during the Cure Period, if the Restricted Party cures such RCA Breach, Parent’s obligation to issue such Aggregate
Stock Consideration shall be tolled until the date on which such RCA Breach ceases to be continuing and in effect. Each Seller acknowledges
and agrees that (A) the Aggregate Stock Consideration constitutes valuable consideration provided in connection with this Agreement,
(B) the covenants and obligations set forth in the applicable Restrictive Covenant Agreement are a material inducement to the Company’s
willingness to provide the Aggregate Stock Consideration, and (C) the forfeiture provisions of this Section 2.2(i)(iii) are a
reasonable and proportionate remedy in light of the potential harm to the Company resulting from a RCA Breach. For avoidance of doubt,
in no event shall any portion of the Aggregate Post-Closing Stock Consideration other than unpaid and unissued Deferred Stock Consideration
be subject to the forfeiture provisions of this Section 2.2(i)(iii).
(j)
Notwithstanding anything to the contrary contained in this Agreement, in the event that after the Closing Date a Change of Control of
the Parent, the Company or the Buyer occurs prior to the payment or issuance of all remaining Aggregate Post-Closing Stock Consideration,
all remaining unpaid or unissued amounts of such Aggregate Post-Closing Stock Consideration (based on the Ten-Day VWAP as of the closing
date of such Change of Control transaction) shall automatically accelerate and become immediately due and payable to the Sellers immediately
prior to the consummation of such Change of Control transaction.
(k)
Buyer Parties, as applicable, hereby represent and warrant to the Sellers that (i) the Aggregate Stock Consideration to be issued hereunder
will, when issued pursuant to the terms of this Agreement, be duly authorized, validly issued, fully paid and nonassessable, and free
and clear of all Encumbrances (other than those arising under securities Laws), and will not be issued in violation of any preemptive
right, purchase option, call option, right of first refusal or similar options or rights; (ii) the Parent Common Stock will be issued
in a transaction exempt from registration under the Securities Act and applicable state securities Laws, in reliance on available exemptions,
including Section 4(a)(2) of the Securities Act, and will be issued as “restricted securities”; (iii) assuming the accuracy
of the representations and warranties set forth in Section 3.7, the issuance of the Parent Common Stock will not violate the Securities
Act or any applicable state securities Laws; and (iv) the Parent has sufficient Parent Common Stock authorized for issuing the Aggregate
Closing Stock Consideration. Notwithstanding anything to the contrary contained herein, in no event shall the Parent have an obligation
to issue to the Sellers in the aggregate a number of shares of Parent Common Stock pursuant to the Aggregate Stock Consideration in excess
of 10,364,476 shares (as equitably adjusted pursuant to Section 2.3) (the “Seller Stock Threshold”), and in
the event that for any reason the Seller Stock Threshold prohibits the issuance of any portion of the Aggregate Stock Consideration,
the Buyer shall pay the amount of any shortfall in cash by wire transfer of immediately available funds on the date on which such issuance
is due (each such date a “Cash Payment Date”); provided, however, that if the Buyer, in the good faith reasonable
determination of the board of directors of Parent, does not have sufficient cash on hand on any Cash Payment Date to make such payment
in full (the amount of any such shortfall referred to herein as the “Cash Shortfall”), the Buyer may elect to defer
payment of such Cash Shortfall by delivery of written notice to Sellers on or before the Cash Payment Date, but in such event Buyer shall,
with respect to any such Cash Shortfall, execute and deliver to Sellers on the applicable Cash Payment Date a promissory note (A) in
the principal amount of any such Cash Shortfall, (B) with a maturity date no longer than one (1) year from the applicable Cash Payment
Date, and (C) with interest accruing at ten percent (10.0%) per annum from the date of such note, in form and substance reasonably satisfactory
to Sellers.
20
Section
2.3 Equitable Adjustments. If at any time during the period between the date hereof and the issuance of the Fifth Anniversary
Stock Consideration, any change in the issued and outstanding shares of Parent Common Stock (or securities convertible or exchangeable
into or exercisable for shares of Parent Common Stock) shall occur by reason of any reclassification, reorganization, stock split or
combination, exchange or readjustment of shares, or any stock dividend thereon with a record date during such period, any of the Aggregate
Stock Consideration that has not yet been issued by the Parent to the Sellers shall be equitably adjusted to the extent necessary to
provide the same economic benefit to the Sellers as contemplated by this Agreement prior to such reclassification, recapitalization,
stock split or combination, exchange or readjustment of shares or stock dividend.
Section
2.4 Purchase Price Adjustments.
(a)
At least two Business Days prior to the Closing Date, the Sellers prepared and delivered to the Buyer a statement (the “Preliminary
Closing Statement”) setting forth, in reasonable detail, a good-faith estimate of the Company’s (i) Net Working Capital
(the “Estimated Net Working Capital”), (ii) Indebtedness (the “Estimated Indebtedness”), (iii)
Cash (the “Estimated Cash”) and (iv) Transaction Expenses (the “Estimated Transaction Expenses”),
with Net Working Capital and Cash determined as of the Calculation Time and Indebtedness and Transaction Expenses determined as of the
Closing (and, except for the Estimated Transaction Expenses, without giving effect to the transactions contemplated hereby). The Preliminary
Closing Statement was prepared on a basis consistent with GAAP and the terms of this Agreement. For the avoidance of doubt, neither acceptance
of the Preliminary Closing Statement by the Buyer nor rejection by the Sellers of any proposed changes by the Buyer shall waive any of
the Buyer’s rights or remedies under this Agreement.
(b)
Within 180 days after the Closing Date, the Buyer shall cause to be prepared and delivered to the Sellers a written statement (the “Final
Closing Statement”) that shall include and set forth a calculation in reasonable detail of the actual (i) Net Working Capital
(“Closing Net Working Capital”), (ii) Indebtedness (“Closing Indebtedness”), (iii) Cash (“Closing
Cash”) and (iv) Transaction Expenses (“Closing Transaction Expenses”), with Net Working Capital and Cash
determined as of the Calculation Time and Indebtedness and Transaction Expenses determined as of the Closing (and, except for the Closing
Transaction Expenses, without giving effect to the transactions contemplated hereby). The Final Closing Statement shall be prepared on
a basis consistent with GAAP and the terms of this Agreement. Following the delivery of the Final Closing Statement, the Buyer will make
available or deliver via e-mail to the Sellers and their Representatives copies of the applicable financial books and records of the
Company used in preparing the Final Closing Statement. If, for any reason, the Buyer fails to deliver the Final Closing Statement within
the time period required by this Section 2.4(b), then at the election of Sellers, the Preliminary Closing Statement shall be deemed
to be the Final Closing Statement (which shall be deemed to be delivered 180 days after the Closing Date for purposes of Section 2.4(c)
and Section 2.4(f)) and Sellers may deliver a Notice of Disagreement with respect thereto in accordance with Section 2.4(c),
provided that, prior to any such election becoming effective, the Sellers shall have delivered to the Buyer at least five Business
Days in advance written notice of its intent to make such election, and the Buyer shall not have delivered the Final Closing Statement
prior to the expiration of such five Business Days. In no event may the Buyer amend or adjust the Final Closing Statement or the underlying
balances and calculations thereof following delivery to the Sellers.
21
(c)
The Final Closing Statement shall become final and binding on the 60th day following delivery thereof, unless prior to the end of such
period, the Sellers deliver to the Buyer written notice of their disagreement (a “Notice of Disagreement”) specifying
the nature and amount of, as well as the basis for, any dispute as to the Closing Net Working Capital, Closing Indebtedness, Closing
Cash and/or Closing Transaction Expenses, as set forth in the Final Closing Statement. The Sellers may only submit one Notice of Disagreement
and shall be deemed to have agreed with all items and amounts of Closing Net Working Capital, Closing Indebtedness, Closing Cash and/or
Closing Transaction Expenses not specifically referenced in the Notice of Disagreement, and such items and amounts shall not be subject
to review in accordance with Section 2.4(d).
(d)
During the 30-day period following delivery of a Notice of Disagreement by the Sellers to the Buyer, the parties in good faith shall
seek to resolve in writing any differences that they may have with respect to the calculation of the Closing Net Working Capital, Closing
Indebtedness, Closing Cash and/or Closing Transaction Expenses as specified therein (collectively, the “Disputed Items”).
Any Disputed Items resolved in writing between the Buyer and the Sellers within such 30-day period shall be final and binding with respect
to such Disputed Items, and if the Sellers and the Buyer agree in writing on the resolution of each Disputed Item specified by the Sellers
in the Notice of Disagreement and the amount of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction
Expenses, the amounts so determined shall be final and binding on the parties for all purposes hereunder. If the Buyer and the Sellers
have not resolved all such Disputed Items by the end of such 30-day period (which period may be extended upon mutual agreement by the
Buyer and the Sellers), the Buyer and the Sellers shall submit, in writing, to an independent public accounting firm with relevant experience
in resolving purchase price disputes, jointly retained by the Buyer and the Sellers (the “Independent Accounting Firm”),
their briefs detailing their views as to the correct nature and amount of each unresolved Disputed Item and the amounts of the Closing
Net Working Capital, Closing Indebtedness, Closing Cash and/or Closing Transaction Expenses, and the Independent Accounting Firm shall
make a written determination as to each such Disputed Item and the amount of the Closing Net Working Capital, Closing Indebtedness, Closing
Cash and/or Closing Transaction Expenses. Within 10 days of completion of the 30-day period following the delivery of a Notice of Disagreement
(unless such period shall have been extended as set forth above), the Buyer and the Sellers shall jointly seek to enter into an engagement
letter with the Independent Accounting Firm. The Independent Accounting Firm shall be Grassi & Co. or, if such firm is unable or
unwilling to act, such other independent public accounting firm as shall be agreed in writing by the Sellers and the Buyer; provided,
that if the Sellers and the Buyer are unable to agree on a replacement independent accounting firm, the Sellers (on one hand) and the
Buyer (on the other hand) shall each select an accounting firm, with such accounting firms jointly selecting a neutral party to serve
as the replacement independent accounting firm. The Buyer and the Sellers shall use their commercially reasonable efforts to cause the
Independent Accounting Firm to render a written decision resolving all Disputed Items submitted to it within 30 days following the submission
thereof (including a reasonable basis for such decision), or such longer period as the Independent Accounting Firm may reasonably require;
provided, however, that the failure of the Independent Accounting Firm to strictly conform to any deadline or time period
contained herein shall not render the determination of the Independent Accounting Firm invalid and shall not be a basis for seeking to
overturn any determination rendered by the Independent Accounting Firm. The Independent Accounting Firm shall consider only those Disputed
Items and amounts in the Buyer’s and the Sellers’ respective calculations of the Closing Net Working Capital, Closing Indebtedness,
Closing Cash and Closing Transaction Expenses that are identified as being Disputed Items and amounts to which the Buyer and the Sellers
have been unable to agree. The scope of the disputes to be resolved by the Independent Accounting Firm shall be limited to correcting
mathematical errors and determining whether the items and amounts in dispute were determined in accordance with GAAP and this Agreement,
and the Independent Accounting Firm is not permitted to make any other determination, including any determination as to whether the Target
Net Working Capital or any estimates on the Preliminary Closing Statement are correct, adequate or sufficient; provided, however,
that any disputes with respect to the extent or nature of reasonable access, as contemplated by Section 2.4(f), shall be referred
to the Independent Accounting Firm for its determination, which determination shall be final and binding upon the parties. In resolving
any Disputed Item, the Independent Accounting Firm may not assign a value to any Disputed Item greater than the greatest value for such
Disputed Item claimed by either party or less than the smallest value for such Disputed Item claimed by either party in the Final Closing
Statement or the Notice of Disagreement, respectively; provided that if the resolution of any Disputed Item gives rise to a corresponding
entry, such corresponding entry shall be included in the Independent Accounting Firm’s determination procedures (for example, a
misclassification of outstanding checks between accounts payable and cash will require adjustment to both accounts, even if the Disputed
Item related only to accounts payable and not cash). The Independent Accounting Firm’s determination of the Closing Net Working
Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses shall be based solely on written materials submitted by
the Buyer and the Sellers (i.e., not on independent review) and the terms and conditions of this Agreement; provided, that,
if mutually agreed by the Buyer and the Sellers, the parties may seek an oral hearing with the Independent Accounting Firm in supplement
of such written materials. The determination of the Independent Accounting Firm shall be conclusive and binding upon the parties hereto
and shall not be subject to appeal or further review. Judgment may be entered upon the written determination of the Independent Accounting
Firm in accordance with this Section 2.4(d). In acting under this Agreement, the Independent Accounting Firm shall function solely
as an expert and not as an arbitrator. In no event shall either party engage in any ex parte communications with the Independent
Accounting Firm with respect to any dispute hereunder.
22
(e)
The costs of any dispute resolution pursuant to this Section 2.4, including the fees and expenses of the Independent Accounting
Firm and of any enforcement of the determination thereof, shall be borne by the Sellers and the Buyer in inverse proportion as they may
prevail on the matters resolved by the Independent Accounting Firm, which proportionate allocation shall be calculated on an aggregate
basis based on the relative dollar values of the amounts in dispute and shall be determined by the Independent Accounting Firm at the
time the determination of such firm is rendered on the merits of the matters submitted. For example, if the disputed amount is $1,000
and the Independent Accounting Firm awards $600 in favor of the Buyer’s position, then 40% of the fees and costs of the Independent
Accounting Firm would be borne by the Buyer and 60% of such fees and costs would be borne by the Sellers. The fees and disbursements
of the Representatives of each party incurred in connection with the preparation or review of the Final Closing Statement and preparation
or review of any Notice of Disagreement, as applicable, shall be borne by such party.
(f)
The Buyer Parties will, and will cause the Company, during the period from and after Closing through the resolution of any adjustment
to the Purchase Price contemplated by this Section 2.4, to afford the Sellers and their Representatives reasonable access, during
normal business hours and upon reasonable prior notice, to the extent used or relied on in the preparation of the Final Closing Statement
(or otherwise relevant to the calculations set forth in the Final Closing Statement), to the personnel, properties, books and records
of the Company and to any other information reasonably requested for purposes of preparing and reviewing the calculations contemplated
by this Section 2.4; provided, however, that any such access shall be conducted at the Sellers’ expense, during
normal business hours, under the supervision of the Company’s personnel and in such a manner as not unreasonably to interfere with
the normal operations of the Company and shall be subject to any limitations resulting from any Public Health Measures. Each party shall
authorize its accountants to disclose work papers generated by such accountants in connection with preparing and reviewing the calculations
specified in this Section 2.4; provided, that such accountants shall not be obligated to make any work papers available
except in accordance with such accountants’ disclosure procedures and then only after the non-client party has signed an agreement
relating to access to such work papers in form and substance acceptable to such accountants.
23
(g)
The Purchase Price shall be adjusted, upwards or downwards, as follows:
(i)
For the purposes of this Agreement, the “Net Adjustment Amount” means an amount, which may be positive or negative,
equal to (A) the Closing Net Working Capital as finally determined pursuant to this Section 2.4 minus the Estimated Net Working
Capital, minus (B) the Closing Indebtedness as finally determined pursuant to this Section 2.4 minus the Estimated Indebtedness,
plus (C) the Closing Cash as finally determined pursuant to this Section 2.4 minus the Estimated Cash, minus (D)
the Closing Transaction Expenses as finally determined pursuant to this Section 2.4 minus the Estimated Transaction Expenses;
(ii)
If the Net Adjustment Amount is positive (in which case the “Net Adjustment Amount” for purposes of this clause (ii)
shall be deemed to be equal to the absolute value of such amount), the Purchase Price shall be adjusted upwards in an amount equal to
the Net Adjustment Amount, up to a maximum amount equal to Five Hundred Thousand Dollars ($500,000) (the “Adjustment Cap”).
In such event, (A) the Sellers and the Buyer shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent
to pay each of the Sellers their Pro Rata Portion of the Escrow Fund and (B) the Buyer shall pay the Net Adjustment Amount (not to exceed
the Adjustment Cap) to the Sellers;
(iii)
If the Net Adjustment Amount is negative (in which case the “Net Adjustment Amount” for purposes of this clause (iii)
shall be deemed to be equal to the absolute value of such amount), the Purchase Price shall be adjusted downwards in an amount equal
to the Net Adjustment Amount, up to a maximum amount equal to Five Hundred Thousand Dollars ($500,000). In such event, (A) the Sellers
and the Buyer shall deliver joint written instructions to the Escrow Agent specifying the Net Adjustment Amount and instructing the Escrow
Agent to pay the lesser of the Net Adjustment Amount and the Escrow Funds out of the Escrow Fund, to the Buyer in accordance with the
terms of the Escrow Agreement and, (B) the Escrow Fund shall be the sole and exclusive source of recovery for any downward Purchase Price
adjustment pursuant to this Section 2.4(g)(iii), and neither the Sellers nor any of their Affiliates shall have any further liability
or obligation with respect thereto, and the Buyer shall have no right to seek recovery from the Sellers or any of their Affiliates or
to offset or withhold any amounts otherwise payable pursuant to this Agreement in respect thereof.
(h)
All instructions to be delivered by the Buyer and the Sellers to the Escrow Agent pursuant to Section 2.4(g) shall be delivered
within three Business Days after the date on which the Net Adjustment Amount is finally determined pursuant to this Section 2.4.
Payments in respect of Section 2.4(g) shall be made within three Business Days of final determination of the Net Adjustment Amount
pursuant to the provisions of this Section 2.4 by wire transfer of immediately available funds to such account or accounts as
may be designated in writing by the party entitled to such payment at least two Business Days (unless otherwise agreed by the Buyer and
the Sellers) prior to such payment date.
(i)
For the avoidance of doubt, this Section 2.4 is not intended to be used to permit the introduction of different judgments, accounting
methodologies (including with respect to accruals and reserves), policies, principles, practices, procedures or classifications for purposes
of calculating amounts referred to in this Section 2.4, or to adjust for any inconsistencies between the Annual Financial Statements
or the Interim Financial Statements, on the one hand, and GAAP, on the other.
(j)
Any payments made pursuant to Section 2.4(g) shall constitute an adjustment to the Purchase Price for Tax purposes and shall be
treated and reported as such by the parties hereto on their respective Tax Returns unless otherwise required pursuant to a “determination”
(as defined in Section 1313(a) of the Code).
24
Section 2.5 Withholding.
The Buyer, the Company and the Escrow Agent (or any other applicable withholding agent) shall be entitled to deduct and withhold from
any consideration otherwise payable or issuable hereunder or other payment made (or that otherwise would be made) pursuant to this Agreement
such amounts as are required to be deducted or withheld (as reasonably determined by such applicable withholding agent) under the Code
or any applicable Law. In the event Buyer determines that any such withholding is required, Buyer shall notify Sellers of such determination,
specifying in reasonable detail the basis for such determination, at least ten (10) days prior to making any such withholding; and Sellers
shall promptly review such notification within five (5) days after delivery of the notice, and if Sellers deliver comments or any objection
to such withholding notification, Buyer shall reasonably consider in good faith such comments or objections made by Sellers in making
its final determination regarding withholding. Buyer and Sellers shall use commercially reasonable efforts to cooperate to mitigate or
eliminate any such withholding to the maximum extent permitted by Law. To the extent amounts are so withheld and remitted to the proper
Governmental Authority, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect
of which such deduction or withholding was made. If any withholding is required with respect to stock consideration, the Buyer may satisfy
such withholding obligation by reducing the number of shares otherwise issuable to the Sellers by a number of shares having an aggregate
value equal to the amount required to be withheld, based on, in respect of the shares of Parent Common Stock to be withheld, the lower
of the Ten-Day VWAP (a) used to determine the issuance of such shares of Parent Common Stock to the Sellers pursuant to Section 2.2
and (b) as of the Closing Date.
Section
2.6 Excluded Assets. The Buyer Parties acknowledge and agree that immediately prior to the Closing, the Company will transfer
and convey to Mr. Boyd all of the Company’s right, title and interest in and to that certain Ford F-250 (VIN # 1FT7W2BT9KEF75140).
Article
III
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Except
as set forth in the Disclosure Schedules to this Agreement (collectively, the “Disclosure Schedules”) (it being understood
that any disclosures made for the purpose of any one Disclosure Schedule shall be deemed made for the purpose of all representations
and warranties so long as the applicability to the other representations and warranties is reasonably apparent on the face of such disclosure),
the Sellers, jointly and severally, hereby represent and warrant to the Buyer as follows:
Section
3.1 Organization and Capacity. Onium is a limited liability company duly formed, validly existing and in good standing under the
Laws of Georgia and has all necessary limited liability company power and authority to own, lease and operate its properties and assets
and to carry on its business as it is now being conducted. Mr. Boyd is an individual of legal age and has full legal capacity to own,
lease, and operate his properties and assets and to carry on his businesses as they are currently being conducted.
Section
3.2 Authority. Onium has the limited liability company power and authority to execute and deliver this Agreement and each of the
other Transaction Documents to which it will be a party, to perform its obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. Mr. Boyd has full legal capacity and authority to execute and deliver this Agreement and each of the
other Transaction Documents to which he will be a party, to perform his obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution, delivery and performance by the Sellers of this Agreement and each of the other Transaction
Documents to which they will be party and the consummation by the Sellers of the transactions contemplated hereby and thereby have been
duly and validly authorized by all necessary action, and no other action on the part of the Sellers is necessary to authorize the execution,
delivery or performance by the Sellers of or under this Agreement or any of the other Transaction Documents or the consummation by the
Sellers of the transactions contemplated hereby or thereby. This Agreement has been, and upon execution of each of the other Transaction
Documents to which the Sellers will be a party, will have been duly executed and delivered by the Sellers and, assuming due execution
and delivery by each of the other parties hereto and thereto, this Agreement constitutes, and upon execution of each of the other Transaction
Documents to which the Sellers will be a party will constitute, the legal, valid and binding obligation of the Sellers, enforceable against
the Sellers in accordance with its terms, subject to the Enforceability Exceptions.
25
Section
3.3 No Conflict; Required Filings and Consents.
(a)
The execution, delivery and performance by the Sellers of this Agreement and each of the other Transaction Documents to which the Sellers
will be party, and the consummation of the transactions contemplated hereby and thereby do not and will not:
(i)
conflict with, violate or constitute or result in a breach or default under (in each case, with or without notice of lapse of time, or
both) the Organizational Documents of Onium;
(ii)
conflict with or violate any Law or Permit applicable to either of the Sellers or by which any property or asset of either of the Sellers
is bound or affected; or
(iii)
conflict with, violate, result in any breach of, constitute a default (or an event that, with notice or lapse of time or both, would
become a default) under, give rise to any right of termination, modification, cancellation or acceleration with respect to, result in
the payment of any additional fee or penalty under, require any consent of or notice to any Person pursuant to, or result in an Encumbrance
(other than a Permitted Encumbrance) on any property pursuant to, any contract or agreement to which either of the Sellers is a party
or by which its properties, assets or rights is bound or affected; except, in the case of clause (ii) or (iii), for any such conflicts,
violations, breaches, defaults or other occurrences that would not have, or would not reasonably be expected to have, individually or
in the aggregate, a Seller Material Adverse Effect or that arise solely as a result of any facts or circumstances relating to the participation
of the Buyer Parties or any of their respective Affiliates (as opposed to any third party) in the transactions contemplated by this Agreement.
(b)
The Sellers are not required to file, seek or obtain any notice, authorization, approval, order, permit or consent of or with any Governmental
Authority in connection with the execution, delivery and performance by the Sellers of this Agreement or each of the other Transaction
Documents to which the Sellers will be party or the consummation of the transactions contemplated hereby or thereby, except (i) for such
filings as may be required by any applicable federal or state securities or “blue sky” Laws or (ii) as may be necessary solely
as a result of any facts or circumstances relating to the participation of the Buyer Parties or any of their respective Affiliates (as
opposed to any third party) in the transactions contemplated by this Agreement.
Section 3.4 Interests.
The Sellers are the record and beneficial owners of the Interests, free and clear of any Encumbrance (other than sale restrictions under
applicable securities Laws). The Interests constitute all of the issued and outstanding Equity Interests of the Company. The Sellers
have the right, authority and power to sell, assign and transfer the Interests to the Buyer. The Sellers have no right to acquire additional
Equity Interests of the Company. Other than this Agreement, the Sellers are not party to (i) any option, call, subscription, purchase
right or other right (including preemptive right) or contract that requires the Sellers to sell, assign, transfer or otherwise dispose
of any Interests, or that gives any Person any rights with respect to any Interests owned by the Sellers (including any participation
right in the revenue or profits of the Company or requiring any payment based on the value of the Interests) or (ii) any voting trust,
proxy, bond, debenture, note or other contract with respect to the voting of any Interests. Upon assignment to the Buyer of the Interests
at the Closing and the Buyer’s payment of the Purchase Price, the Buyer shall acquire good, valid and marketable title to the Interests,
free and clear of any Encumbrance other than Encumbrances created by the Buyer.
26
Section
3.5 Brokers. No broker, finder, or investment banker is entitled to any brokerage, finder’s or other fee or commission or
the reimbursement of expenses in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of
the Sellers.
Section 3.6 Litigation;
Orders. There is no pending Action and no Person has threatened to commence any Action against either of the Sellers or any of their
Affiliates that challenges, or that would have the effect of preventing, delaying, making illegal or otherwise interfering with, any
of the transactions contemplated by this Agreement. There is no order, judgment or decree of any Governmental Authority applicable to
either of the Sellers or any of their Affiliates that, individually or in the aggregate, would reasonably be expected to have a Seller
Material Adverse Effect. The Sellers have not made any assignment for the benefit of creditors. Neither of the Sellers is a “foreign
person” within the meaning of Section 1445(f)(3) of the Code.
Section 3.7 Investment
Intent. The Sellers are acquiring the Parent Common Stock for their own account for investment purposes only and not with a view
to any distribution thereof or with any intention of selling, distributing or otherwise disposing of the Parent Common Stock in a manner
that would violate the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”). The Sellers
agree that the Parent Common Stock may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of without
registration under the Securities Act and any applicable state securities Laws, except pursuant to an exemption from such registration
under the Securities Act and such Laws. Each Seller acknowledges that the Parent Common Stock will be issued as “restricted securities”
under the Securities Act, will bear appropriate restrictive legends, and will be subject to transfer restrictions as set forth in this
Agreement and the Registration Rights Agreement. The Sellers are able to bear the economic risk of holding the Parent Common Stock for
an indefinite period (including total loss of its investment) and have sufficient knowledge and experience in financial and business
matters so as to be capable of evaluating the merits and risk of its investment. Each Seller is an “accredited investor”
as defined in Rule 501(a) of Regulation D under the Securities Act.
Section
3.8 Sellers’ Investigation and Reliance. The Sellers are each a sophisticated party and have made their own independent investigation,
review and analysis regarding the Buyer Parties and the transactions contemplated hereby, which investigation, review and analysis were
conducted by the Sellers together with expert advisors, including legal counsel, that it has engaged for such purpose. None of the Buyer
Parties or any of their respective Affiliates or Representatives has made any representation or warranty, express or implied, as to the
accuracy or completeness of any information concerning a Buyer Party contained herein or made available in connection with the Sellers’
investigation of a Buyer Party, except as expressly set forth in this Agreement or the other Transaction Documents, and the Buyer Parties
and their respective Affiliates and Representatives expressly disclaim any and all liability that may be based on such information or
errors therein or omissions therefrom. The Sellers have not relied and are not relying on any statement, representation or warranty,
oral or written, express or implied, made by the Buyer Parties or any of their respective Affiliates or Representatives, except as expressly
set forth in this Agreement or the other Transaction Documents. Each Seller acknowledges that it has had access to the Buyer’s
public filings with the SEC and the opportunity to ask questions of, and receive answers from, Representatives of the Buyer concerning
the terms of the transactions contemplated hereby and the issuance of the Parent Common Stock. The Sellers acknowledge that, should the
Closing occur, the Sellers shall acquire the Parent Common Stock on an “as is” and “where is” basis, except as
otherwise expressly set forth in Article V. The Sellers acknowledge and agree that the representations and warranties in Article
V are the result of arms’ length negotiations between sophisticated parties.
27
Section
3.9 Exclusivity of Representations and Warranties. Neither of the Sellers nor any of their Affiliates or Representatives is making
any representation or warranty on behalf of the Sellers of any kind or nature whatsoever, oral or written, express or implied, except
as expressly set forth in this Article III or any other Transaction Document and the Sellers hereby disclaim any such other representations
or warranties.
Section
3.10 No General Solicitation. The Sellers acknowledge and agree that the offer and sale of the Parent Common Stock pursuant to
this Agreement was made in a privately negotiated transaction and did not involve any form of general solicitation or general advertising
within the meaning of the Securities Act.
Article
IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except
as set forth in the Disclosure Schedules (it being understood that any disclosures made for the purpose of any one Disclosure Schedule
shall be deemed made for the purpose of all representations and warranties so long as the applicability to the other representations
and warranties is reasonably apparent on the face of such disclosure), the Company hereby represents and warrants to the Buyer as follows:
Section
4.1 Organization and Qualification.
(a)
The Company is (i) duly formed, validly existing and in good standing under the Laws of Delaware and has all necessary limited liability
company power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted
and (ii) duly qualified as a foreign limited liability company to do business, and is in good standing, in each jurisdiction where the
character of the properties owned, leased or operated by it or the nature of its business makes such qualification necessary, except,
in each case, for any such failures that would not have, or would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect or Seller Material Adverse Effect.
(b)
Prior to the date hereof, the Company has made available to the Buyer true and correct copies of the Organizational Documents of the
Company. All Organizational Documents for the Company are in full force and effect, and the Company is not in default (with or without
notice or the lapse of time, or both) under, or in breach or violation of, any provision of such Organizational Documents.
(c)
No formal written request has been made, and no order has been made or petition presented, for or in connection with the annulment or
the dissolution of the Company.
(d)
Since the Lookback Date, the Company has not received notice in writing from a Governmental Authority or any other Person asserting that
any of the records, minute books and other files and records (whether physical or digital) of the Company (collectively, the “Books
and Records”) are not maintained in accordance with sound business practices and requirements of applicable Law, are incorrect
or require rectification. At the Closing, all of the Books and Records will be in the possession of the Company. All filings, publications,
registrations, and other formalities required by applicable Law to be delivered or made by the Company to the relevant company registries
have been correctly prepared and duly delivered or made except where the failure to do so would not be material to the Company.
28
Section
4.2 Authority. The Company has the limited liability company power and authority to execute and deliver this Agreement and each
of the other Transaction Documents to which it will be a party, to perform its obligations hereunder and thereunder and to consummate
the transactions contemplated hereby and thereby. The execution, delivery and performance by the Company of or under this Agreement and
each of the other Transaction Documents to which it will be a party and the consummation by the Company of the transactions contemplated
hereby and thereby have been duly and validly authorized by all necessary limited liability company action, and no other corporate action
on the part of the Company is necessary to authorize the execution, delivery or performance by the Company of or under this Agreement
or any of the other Transaction Documents or the consummation by the Company of the transactions contemplated hereby or thereby. This
Agreement has been, and upon execution of each of the other Transaction Documents to which it will be a party, will have been duly executed
and delivered by the Company and, assuming due execution and delivery by each of the other parties hereto and thereto, this Agreement
constitutes, and upon execution of each of the other Transaction Documents to which the Buyer will be a party, will constitute the legal,
valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability
Exceptions.
Section
4.3 No Subsidiaries. The Company does not have, and has never had, any Subsidiaries.
Section
4.4 No Conflict; Required Filings and Consents.
(a)
Except as set forth in Schedule 4.4(a) of the Disclosure Schedules, the execution, delivery and performance by the Company of
this Agreement and each of the other Transaction Documents to which the Company will be a party, and the consummation of the transactions
contemplated hereby and thereby do not and will not:
(i)
conflict with, violate or constitute or result in a breach or default under (in each case, with or without notice of lapse of time, or
both) the Organizational Documents of the Company;
(ii)
conflict with or violate any Law or Permit applicable to the Company or by which any property or asset of the Company is bound or affected;
or
(iii)
conflict with, violate, result in any breach of, constitute a default (or an event that, with notice or lapse of time or both, would
become a default) under, give rise to any right of termination, modification, cancellation or acceleration with respect to, result in
the payment of any additional fee or penalty under, require any consent of or notice to any Person pursuant to, or result in an Encumbrance
(other than a Permitted Encumbrance) on any property pursuant to, any contract or agreement to which the Company is a party or by which
any of its respective properties, assets or rights is bound or affected; except, in the case of clause (iii), for any such conflicts,
violations, breaches, defaults or other occurrences that would not have, and would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect or Seller Material Adverse Effect, or that arise as a result of any facts or circumstances
relating to the participation of the Buyer Parties or any of their respective Affiliates (as opposed to any third party) in the transactions
contemplated by this Agreement.
(b)
Except as set forth in Schedule 4.4(b) of the Disclosure Schedules, the Company is not required to file, seek or obtain any notice,
authorization, approval, order, permit or consent of or with any Governmental Authority in connection with the execution, delivery and
performance by the Company of this Agreement or each of the other Transaction Documents to which the Company will be a party or the consummation
of the transactions contemplated hereby or thereby, except (i) for such filings as may be required by any applicable federal or state
securities or “blue sky” Laws, or (ii) as may be necessary solely as a result of any facts or circumstances relating to the
participation of the Buyer Parties or any of their respective Affiliates (as opposed to any third party) in the transactions contemplated
by this Agreement.
29
Section
4.5 Capitalization . The Company’s authorized, issued and outstanding Equity Interests are as set forth in Schedule
4.5 of the Disclosure Schedules. All of the Company’s issued and outstanding Equity Interests are validly issued and have
not been issued in violation of any preemptive or similar rights. There are no outstanding options, warrants, convertible
securities, subscriptions, call rights, redemption rights, repurchase rights, stock appreciation rights, profit interests or other
similar rights, agreements, arrangements or commitments of any kind relating to the Equity Interests of the Company or obligating
the Company to issue or sell any Equity Interests of the Company. There are no outstanding contractual obligations of the Company to
repurchase, redeem or otherwise acquire any Equity Interests of the Company or to provide funds to, or make any investment in, any
other Person. There are no outstanding or authorized stock appreciation rights, phantom stock, performance-based rights or profit
participation or similar rights or obligations of the Company. There are no agreements or understandings in effect with respect to
the voting, sale or transfer of any of the Equity Interests of the Company.
Section
4.6 Equity Interests. The Company does not directly or indirectly own any Equity Interest in, or any interest convertible
into, exercisable for the purchase of or exchangeable for any Equity Interest in any Person.
Section
4.7 Sufficient Assets. The assets (including Intellectual Property) owned by the Company constitute all of the assets necessary
to conduct the business of the Company as currently conducted. Immediately following the Closing, the Company will own all such assets
without any requirement to obtain any additional assets, services, or rights from the Sellers or any of their Affiliates, except as expressly
set forth on Schedule 4.7 of the Disclosure Schedules. Without limiting the foregoing and except as set forth on Schedule 4.7
of the Disclosure Schedules, the Company does not rely on any asset, service, or right owned, provided, or controlled by the Sellers
or any of their Affiliates (other than the Company) to conduct the business of the Company as currently conducted.
Section
4.8 Financial Statements; No Undisclosed Liabilities.
(a)
True, correct and complete copies of (i) the audited balance sheets of the Company as at December 31, 2024 and December 31, 2025 (the
“Balance Sheet Date”), and the related statements of operations and cash flows of the Company (collectively, the “Annual
Financial Statements”) and (ii) the unaudited balance sheet of the Company as at January 31, 2026, and the related statements
of operations of the Company (collectively referred to as the “Interim Financial Statements” and, together with the
Annual Financial Statements, the “Financial Statements”), have been provided to the Buyer. Each of the Annual Financial
Statements and the Interim Financial Statements fairly presents, in all material respects, the financial position and results of operations
of the Company as at the respective dates thereof and for the respective periods indicated therein. The Financial Statements have been
prepared in accordance with GAAP in all material respects, applied on a consistent basis throughout the periods indicated (except, in
the case of the Interim Financial Statements, for the absence of notes and subject to normal and recurring year-end adjustments, none
of which are, individually or in the aggregate, material). Notwithstanding the foregoing, the Financial Statements reflect the accounting
principles, practices, methodologies, policies, procedures, classifications, judgments and estimation techniques set forth on Schedule
4.8(a) of the Disclosure Schedules (collectively, the “Accounting Principles”).
(b)
There are no liabilities of the Company other than any such liabilities (i) adequately reflected or reserved for on the Interim Financial
Statements, the Annual Financial Statements or the notes thereto, (ii) incurred since the Balance Sheet Date in the ordinary course of
business of the Company (none of which is a liability resulting from breach of contract, warranty, tort infringement or misappropriation),
(iii) disclosed on Schedule 4.8(b) of the Disclosure Schedules, or (iv) that would not reasonably be expected to be material to
the Company.
30
(c)
The Company has established and maintains systems of internal controls that provide reasonable assurance that, except as would not, individually
or in the aggregate, reasonably be expected to be material to the Company, taken as a whole (i) transactions are recorded as necessary
to permit preparation of proper and accurate financial information in conformity with the Accounting Principles, (ii) receipts and expenditures
are executed, in all material respects, in accordance with the authorization of management, (iii) records are maintained in reasonable
detail and accurately and fairly reflect, in all material respects, the transactions and dispositions of the assets of the Company and
(iv) unauthorized acquisition, use or disposition of the assets of the Company are prevented and timely detected. To the Knowledge of
the Company, the Company’s accountants and representatives have not received any unresolved material written complaint, allegation
or assertion of a problem or claim regarding the accounting or auditing practices, procedures, methodologies or methods of the Company
or the Company’s accounting controls. There are no material weaknesses or significant deficiencies in the design or operations
of the internal financial controls utilized by the Company.
(d)
All accounts receivable of the Company shown on the Interim Financial Statements, (i) arose from sales actually made or services actually
performed in the ordinary course of business, (ii) are valid receivables net of reserves shown thereon and (iii) are not subject to any
valid setoffs or counterclaims or other defenses other than normal cash discounts accrued in the ordinary course of business consistent
with past practice. There are no (and have not been since the Lookback Date) material pending or threatened claims with any customers
of the Company regarding any accounts receivables. There are no Encumbrances (other than Permitted Encumbrances) on such receivables
or any part thereof and no agreement for deduction, free goods or services, discount or other deferred price or quantity adjustment has
been made with respect to any such receivables by the Company other than normal cash discounts accrued in the ordinary course of business
consistent with past practice and that would be material to the Company.
(e)
All accounts payable and notes payable of the Company, whether shown on the Interim Financial Statements or accrued thereafter, are the
result of bona fide transactions in the ordinary course of business.
(f)
The Company is not a party to and has no commitment to become a party to, any “off balance sheet arrangement” that would
be required to be disclosed under Item 303(a) of Regulation S-K as promulgated by the SEC if the Company were subject to those provisions.
Section
4.9 Absence of Certain Changes or Events. Since the Balance Sheet Date, except as set forth on Schedule 4.9 of the Disclosure
Schedules, the Company has conducted its business only in the ordinary course of business and the Company has not:
(a)
suffered a Material Adverse Effect;
(b)
suffered any incident of damage, destruction or loss of any tangible assets owned by any of the Company or used in the operation of the
business of the Company, whether or not covered by insurance, having, individually or in the aggregate, a replacement cost or fair market
value in excess of $50,000;
(c)
taken any of the following actions:
(i)
amend its Organizational Documents;
31
(ii)
(1) split, combine or reclassify, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its Equity Interests
or (2) declare, set aside, make or pay any non-cash dividend or other non-cash distribution, payable in stock or property, with respect
to any of its Equity Interests (other than any such dividends and other distributions paid or payable solely to the Company);
(iii)
issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or
encumbrance of, any Equity Interests of the Company;
(iv)
acquire any corporation, partnership, limited liability company, other business organization or division thereof or any assets or capital
stock other than in the ordinary course of business;
(v)
adopt a plan of complete or partial liquidation, dissolution, merger, restructure, consolidation, reorganization or recapitalization
of the Company;
(vi)
make any loans, advances or capital contributions to or investments in any Person (other than the Company);
(vii)
incur any Indebtedness for borrowed money or guarantee Indebtedness of another Person, or issue or sell any debt securities or warrants
or other rights to acquire any debt security of the Company (other than immaterial trade payables incurred in the ordinary course of
business);
(viii)
make or authorize capital expenditures other than those that are both (1) in the ordinary course of business and (2) do not exceed $50,000
individually or in the aggregate;
(ix)
compromise, waive, forgive, settle or agree to settle any Action (including any Action relating to this Agreement or the transactions
contemplated hereby), or consent to the same, or any commitment, obligation or liability;
(x)
transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise
dispose of any material assets or businesses of the Company other than equipment, inventory, supplies and other immaterial assets that
are obsolete or nonworking in the ordinary course of business and other than pursuant to contracts in effect prior to the date of this
Agreement that have been made available to the Buyer prior to the date of this Agreement;
(xi)
amend or modify or terminate any Material Contract (except for ordinary course renewals pursuant to the terms thereof) or enter into
any contract that would qualify as a Material Contract if entered into prior to the date of this Agreement;
(xii)
except to the extent required by applicable Law or any Company Plan in effect as of the date hereof and listed on Schedule 4.12(a)
of the Disclosure Schedules, (1) increase (or commit to increase) the compensation or benefits (including severance) of any current or
former employee, director, independent contractor, or other individual service provider of the Company with an annual target compensation,
(2) amend, terminate, or adopt any Company Plan or Collective Bargaining Agreement or amend, terminate, or adopt any compensation or
benefit plan that would be a Company Plan if in effect on the date hereof (other than any such adoption or amendment that does not materially
increase the cost to the Company of maintaining the applicable compensation or benefit plan and that does not otherwise limit the ability
of the Buyer Parties or the Company to amend or terminate such Company Plan), (3) hire or terminate (other than for “cause”)
the employment or engagement of any employee or independent contractor of the Company, (4) accelerate the vesting of, or the lapsing
of restrictions with respect to, any compensation or benefits, including any equity or equity-based compensation, (5) grant or pay (or
commit to grant or pay) any cash incentive or equity or equity-based awards, or amend or modify the terms of any outstanding equity or
equity-based awards, (6) establish or fund (or provide any funding for) any rabbi trust or other funding arrangement, including in respect
of any Company Plan, or (7) announce or implement any reduction in force, mass layoff, early retirement program, severance program, or
effort concerning the group termination of employees;
32
(xiii)
enter into any contract with either of the Sellers or any Related Party of the Sellers or the Company;
(xiv)
implement or adopt any material change in its methods of accounting, except as may be appropriate to conform to changes in statutory
or regulatory accounting rules or GAAP or regulatory requirements with respect thereto;
(xv)
enter into any new line of business (other than any line of business that is reasonably related to and a reasonably foreseeable immaterial
extension of any line of business existing as of the date of this Agreement) or terminate any line of business existing as of the date
of this Agreement;
(xvi)
(1) make, revoke or modify any Tax election that would have a material effect on the Company; (2) enter into any closing agreement, Tax
allocation agreement or Tax sharing agreement with respect to Taxes; (3) file any material amended Tax Return or any amendment or other
modification to any material Tax Return; (4) file any Tax Return in a jurisdiction where the Company did not file a Tax Return of the
same type in the immediately preceding Tax period; (5) settle or compromise any material Tax liability; (6) request or consent to any
extension or waiver of the limitations period applicable to any Tax claim or assessment in respect of material Taxes (other than in the
ordinary course of business or, in the case of a request, pursuant to customary extensions of the due date to file a Tax Return); (7)
make any request for a private letter ruling, administrative relief, technical advice or other similar request with any Governmental
Authority, in each case, principally in relation to a material amount of Taxes or a material Tax matter; (8) change any material accounting
method for Tax purposes or (9) change the Tax residency or Tax entity classification of the Company;
(d)
disclosed any material confidential information or Company Trade Secrets to any Person, other than to Persons that are subject to a confidentiality
or non-disclosure covenant protecting against further disclosure thereof; or
(e)
entered into any legally binding agreement to do any of the foregoing or taken any action or made any omission that would result in any
of the foregoing.
Section
4.10 Compliance with Law; Permits; Anti-Corruption.
(a)
The Company is and, since the Lookback Date has been, in compliance with all Laws applicable to it, except as would not have, and would
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or a Seller Material Adverse Effect.
The Company is not in receipt of any written complaint or other written communication from any Governmental Authority or any other Person
alleging non-compliance with any applicable Laws that would be material to the Company.
33
(b)
Within the last five (5) years, neither the Company nor, to the Company’s Knowledge, any of its officers, managers, directors,
employees or agents acting on its behalf has directly or indirectly made, offered, authorized, or received any bribe, kickback, or other
unlawful payment or thing of value to or from any Governmental Authority or other Person in violation of applicable Anti-Corruption Laws.
The Company has not, within such period, taken any action that would reasonably be expected to result in a violation of applicable Anti-Corruption
Laws.
(c)
Nuclear Matters.
(i)
There are no, and since the Lookback Date, there have been no, actions pending or threatened in writing, against the Company or Mr. Boyd
alleging that the Company or Mr. Boyd is in violation of, or asserting liability of the Company or Mr. Boyd under, any Nuclear Law.
(ii)
Each of the Company and Mr. Boyd is, and has been since the Lookback Date, in compliance with applicable Nuclear Law. The Company does
not hold, and is not required to hold, any license or permit from the NRC or any Agreement State authorizing possession, handling, storage,
or transportation of Nuclear Materials and has not engaged in any activities that would require any such license or permit; and
(iii)
Except as set forth on Schedule 4.10(c) of the Disclosure Schedules, the Company does not, and has not since the Lookback Date,
owned, possessed, handled, stored, transported, or had custody or control of any Nuclear Materials, and is not and has never been the
shipper of record for any shipment of Nuclear Materials. All transportation of Nuclear Materials arranged by the Company is performed
by third party carriers that are duly licensed and authorized under applicable Nuclear Law.
(d)
Government Contracts.
(i)
Schedule 4.10(d) of the Disclosure Schedules sets forth a true and complete list of all Government Contracts to which the Company
is a party as of the date hereof (each, a “Current Government Contract”).
(ii)
Each Current Government Contract was awarded in the ordinary course of business, is in full force and effect, and is a valid and binding
obligation of the Company. The Company is not in default under any Current Government Contract in any material respect, and to the Company’s
Knowledge, no counterparty thereto is in default.
(iii)
The Company has complied (a) in all material respects with the terms of each Current Government Contract and (b) in all respects with
applicable Laws governing the performance thereof.
(iv)
Except as set forth on Schedule 4.4(b) of the Disclosure Schedules, the consummation of the transactions contemplated by this
Agreement does not (i) require the termination of any Current Government Contract under its terms or applicable Law, or (ii) constitute
grounds for termination of any Current Government Contract by a Governmental Authority, in each case other than pursuant to a discretionary
termination for convenience.
(v)
Neither the Company nor, to the Company’s Knowledge, any of its officers or managers has been suspended or debarred from doing
business with any Governmental Authority.
34
(vi)
There are no claims, audits, or investigations pending or, to the Company’s Knowledge, threatened in writing against the Company
arising under any Current Government Contract.
(vii)
All representations and certifications made by the Company in connection with any Current Government Contract were accurate when made.
(e)
The Company is in possession of all permits, licenses, franchises, approvals, certificates, consents, waivers, concessions, exemptions,
orders, registrations, notices or other authorizations of any Governmental Authority necessary for the Company to own, lease and operate
its assets and properties and to carry on its business as currently conducted (the “Permits”), except where the failure
to have, or the suspension or cancellation of, any of the Permits would not have, and would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect. Since the Lookback Date, except as would not have, and would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect, the Company is in compliance with its obligations under, and the
terms of, each Permit. Since the Lookback Date, no suspension, revocation, cancellation or adverse modification of any Permit has been
effected or threatened in writing.
(f)
The Company is, and since the Lookback Date has been, in compliance with all applicable Laws pertaining to anti-money laundering, including
such Laws administered and enforced by the U.S. Department of State and the Department of Justice, and any similar Laws in any other
jurisdiction in which the Company conducts business except where the failure to so comply would not have, and would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect (except for Anti-Corruption Laws, which is addressed in
Section 4.10(h)).
(g)
The Company is, and always has been, in compliance in all material respects with International Trade Laws. Neither the Company nor any
of its directors, officers, or employees, nor, to the Knowledge of the Company, any of their respective agents or Affiliates, is a Sanctioned
Person. The Company has not made any voluntary disclosure to, received any notices, or been subject to any fines, penalties, or sanctions,
from any Governmental Authority regarding violations of International Trade Laws, and to the Knowledge of the Company, there are no actions,
conditions or circumstances that may give rise to any future claims by a Governmental Authority relating to violations of International
Trade Laws.
(h)
Since the Lookback Date, neither the Company nor any of its respective directors, officers, or, to the Knowledge of the Company, any
of their respective employees, agents, Affiliates, or other Persons authorized to act on behalf of the Company, has, directly or indirectly,
taken any act that would cause the Company to be in violation of Anti-Corruption Laws. Without limiting the generality of the foregoing,
(i) the Company has not violated since the Lookback Date, and is not in violation of the U.S. Anti-Kickback Statute (42 U.S.C. Section
1320a-7(b)), the Federal False Claims Act (31 U.S.C. Sections 3729, et seq.), or any related or similar Law, and (ii) since the Lookback
Date, there has been no use or authorization of money or anything of value relating to any unlawful payment or secret or unrecorded fund
or any false or fictitious entries made in the books and records of the Company relating to the same.
(i)
Neither the Company nor, to the Knowledge of the Company, any of its respective directors, officers, employees, or any of their respective
agents, Affiliates or other Persons authorized to act on behalf of the Company has since the Lookback Date, been the subject of any action,
proceeding, litigation, claim, or, to the Knowledge of the Company, investigation, or have received any written notice or communication
from any Governmental Authority, in each case, with regard to any actual, alleged, or suspected violation of applicable Anti-Corruption
Laws.
35
(j)
The Company has not employed or retained, directly or indirectly, a Government Official or a family member of a Government Official,
in each case, from whom the Company has sought to obtain or retain business. To the Knowledge of the Company, no Government Official
has, directly or indirectly, the right of control over, or any beneficial interest in the Company.
(k)
As further set forth on Schedule 4.10(k) of the Disclosure Schedules, the Company maintains, and has maintained since the Lookback
Date, compliance policies, procedures and internal controls designed to ensure compliance with applicable Anti-Corruption Laws.
Section 4.11 Litigation;
Orders. There is no, and since the Lookback Date there has been no, Action by or against the Company pending, or to the Knowledge
of the Company, threatened. The Company is not subject to any order, ruling, judgment, injunction, decree or other Action of any Governmental
Authority that would adversely affect the business of the Company in any material respect. There is no pending Action and, to the Knowledge
of the Company, no Person has threatened to commence any Action against the Company that challenges, or that could have the effect of
preventing, delaying, making illegal or otherwise interfering in any material respect with, any of the transactions contemplated by this
Agreement.
Section
4.12 Employee Benefit Plans.
(a)
Schedule 4.12(a) of the Disclosure Schedules sets forth an accurate and complete list of (i) all employee benefit plans (as defined
in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject
to ERISA) and all bonus, stock option, stock purchase, restricted stock, equity-based, incentive, deferred compensation, retiree medical
or life insurance, retirement, pension, severance, retention, change in control, employee loan, health and welfare, fringe benefit, vacation
or other paid leave and other benefit contracts, agreements, plans, programs, policies, and (ii) all employment, consulting, independent
contractor, termination, severance and other contracts, agreements, plans, programs, policies, and arrangements, in any case of (i) or
(ii), whether or not written, maintained, sponsored by or contributed to, or required to be contributed to, by the Company for the benefit
of any current or former employee, officer, director, independent contractor or other individual service provider of the Company or under
which the Company has any liability, contingent or otherwise (each, a “Company Plan”).
(b)
The Company has furnished or made available to the Buyer a current, true, and complete copy of each Company Plan, including all amendments
and attachments thereto (or if unwritten, a written summary of the material terms thereof) and, to the extent applicable with respect
to any Company Plan, (i) the most recent summary plan description and other equivalent written communications by the Company to eligible
persons concerning the extent of the benefits provided thereunder, (ii) all related trust documents, (iii) all insurance contracts or
other funding arrangements, (iv) the most recent determination, opinion, or advisory letter from the IRS, (v) the three (3) most recent
(A) Form 5500s filed with the IRS and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports, (vi)
the results of non-discrimination testing for the three most recent plan years, and (vii) for the three (3) most recent years, all material
non-routine correspondence to or from any Governmental Authority.
36
(c)
(i) Each Company Plan has been established, administered and maintained in all material respects in accordance with its terms and the
requirements of applicable Law, (ii) no non-exempt prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the
Code, has occurred with respect to any Company Plan, (iii) all contributions, distributions and premium payments required to be made
under the terms of any Company Plan or applicable law have been timely made (or accrued in accordance with past practice and GAAP), (iv)
the Company has performed all material obligations required to be performed by it under each Company Plan and, to the Knowledge of the
Company, is not in any material respect in default under or in violation of any Company Plan, (v) there are no audits, inquiries or proceedings
pending or, to the Knowledge of the Company, threatened by any Governmental Authority with respect to any Company Plan, and (vi) no Action
(other than claims for benefits in the ordinary course) is pending or, to the Knowledge of the Company, threatened with respect to any
Company Plan, any fiduciaries thereof with respect to their duties to a Company Plan, or the assets of any of the trusts under any Company
Plan, by any Governmental Authority or by any plan participant or beneficiary. No Company Plan is subject to any law or applicable custom
or rule of any jurisdiction outside of the United States. Each Company Plan can be amended, terminated or otherwise discontinued after
the Closing Date in accordance with its terms, without liability to the Company or the Buyer Parties (other than the payment of ordinary
administration expenses or termination fees or routine claims for benefits). The Company has not made any commitment (whether written
or oral) to establish or enter into any new Company Plan or to modify the terms of any Company Plan.
(d)
Each Company Plan that is intended to be qualified under Section 401(a) of the Code has received a determination, advisory, or opinion
letter, as applicable from the IRS that it is so qualified (or the deadline for obtaining such a letter has not expired as of the date
of this Agreement) or is a prototype or volume submitter plan entitled, under applicable IRS guidance, to rely on the favorable opinion
or advisory letter issued to the sponsor of such prototype or volume submitter plan. No event has occurred, and no circumstance or condition
exists, that could reasonably be expected to result in the disqualification of any such Company Plan.
(e)
No Company Plan is, and the Company has not in the past six (6) years sponsored, maintained, contributed to, or been required to contribute
to, or incurred any liability (contingent or otherwise) with respect to (i) a “multiemployer plan” (within the meaning of
Section 3(37) or 4001(a)(3) of ERISA), (ii) an employee benefit plan subject to Title IV of ERISA or Section 302 of ERISA or Section
412 of the Code, (iii) a single employer plan (within the meaning of Section 4001(a)(15) of ERISA), (iv) a “multiple employer plan”
(within the meaning of Section 413(c) of the Code), (v) a “funded welfare plan” (within the meaning of Section 419 of the
Code), or (vi) a “multiple employer welfare arrangement” (within the meaning of Section 4(4) of ERISA). The Company is not
now, and has not ever been, deemed a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code
and has never incurred or reasonably be expected to become subject to liability as a result of being deemed a “single employer”
within the meaning of Section 414(b), (c), (m) or (o) of the Code.
(f)
No Company Plan provides, and the Company has no obligation to provide, welfare benefits, including death or medical benefits (whether
or not insured), with respect to any current or former employee, officer, director, independent contractor or other individual service
provider of the Company beyond their termination of service, other than (i) coverage mandated by applicable Law at the sole expense of
the participant or beneficiary or (ii) through the end of the calendar month in which his or her separation from service occurs. The
Company has never maintained, established, sponsored, participated in or contributed to any self-insured plan that provides benefits
to current or former employees (including any such plan pursuant to which a stop-loss policy or contract applies).
(g)
Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (alone or in connection
with any additional or subsequent events) or any termination of employment or service or other event, will result in the (i) entitlement
of any current or former employee, officer, director, independent contractor or other individual service provider of the Company to any
payment, compensation, or benefits (including severance), (ii) acceleration of the time of payment, funding, or vesting or the enhancement
or increase of any compensation or benefit due to any current or former employee, officer, director, independent contractor or other
individual service provider of the Company, (iii) payment or provision of any amount or benefit (including accelerated vesting) that
will not be deductible by reason of Section 280G of the Code or that will be subject to an excise tax under Section 4999 of the Code,
or (iv) limitation or restriction of the right of the Company (or, following the Closing Date, the Buyer Parties) to merge, amend, or
terminate any Company Plan.
37
(h)
The Company has no obligation to indemnify any individual for any Tax or other liabilities incurred with respect to Section 409A or 4999
of the Code or otherwise.
(i)
Each Company Plan that constitutes a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the
Code) has been established and administered in operational and documentary compliance with Section 409A of the Code and all IRS guidance
promulgated thereunder.
(j)
No Company Plan is a plan, program, practice, or contract that is sponsored by a professional employer organization or co-employer organization
(each, a “PEO”) under which an employee of the Company may be eligible to receive compensation and/or benefits in
connection with the Company’s engagement of a PEO.
Section
4.13 Labor and Employment Matters.
(a)
Schedule 4.13(a)(1) of the Disclosure Schedules contains an accurate and complete list of all individuals who are employees of
the Company as of the date hereof and sets forth for each such employee the following: (i) name; (ii) title or position; (iii) whether
full time or part time; (iv) work location; (v) hire date; (vi) current annual base salary or hourly rate (or rates as applicable); (vii)
commission, bonus or other incentive-based compensation; (viii) exempt or non-exempt status; (x) whether active or on leave (and, if
on leave, the nature of the leave and the expected return date); and (xi) visa status, including visa type, sponsoring entity and expiration
date. Schedule 4.13(a)(2) of the Disclosure Schedules contains a list of all individuals or single-member entities who are independent
contractors or consultants of the Company as of the date hereof and sets forth for each such independent contractor or consultant the
following: (i) name; (ii) work location; (iii) retention date; (iv) current compensation rate; and (v) anticipated date of termination
of services, if known. No individual is employed or engaged through a staffing or leasing agency. To the Knowledge of the Company, no
current employee of the Company (i) has any present intention to terminate his or her employment with the Company within the first twelve
(12) months following the Closing Date or (ii) is a party to or bound by any confidentiality, non-competition, non-solicitation, proprietary
rights or other agreement that would restrict in any material respect the performance of such employee’s employment duties or the
ability of the Company to conduct the Company’s business.
(b)
The Company is not party to any Collective Bargaining Agreement or any agreement serving a similar purpose with any other employee representative.
To the Knowledge of the Company, there are no, and since the Lookback Date there have been no, organizing activities by any labor union,
labor organization, or similar employee group targeting employees of the Company. There is no pending, and since the Lookback Date, there
has been no actual, labor dispute, strike, controversy, work slowdown, work stoppage, labor grievance, labor arbitration, picketing,
hand-billing, or lockout and, to the Knowledge of the Company, none are threatened against or affecting the Company. There are no pending
or, to the Knowledge of the Company, threatened union grievances or union representation questions involving employees of the Company.
(c)
No unfair labor practice or labor charge or complaint is pending or, to the Knowledge of the Company, threatened with respect to the
Company before the National Labor Relations Board, the Equal Employment Opportunity Commission, or any other labor relations tribunal
or Governmental Authority.
38
(d)
The Company is, and since the Lookback Date has been, in compliance in all material respects with all applicable Laws relating to labor
and employment, including those relating to wages, hours, collective bargaining and labor relations, unemployment compensation, workers’
compensation, employee leaves, equal employment opportunity, harassment, retaliation, occupational safety and health standards, terms
and conditions of employment, employee trainings and notices, automated employment decision tools, whistleblowing, immigration and work
authorization, employee and independent contractor classification, information privacy and security, government contracting and subcontracting,
plant closures and layoffs, payment and withholding of Taxes, restrictive covenants, and continuation coverage with respect to group
health plans. During the past three years, all employees classified as exempt under the Fair Labor Standards Act and state and local
wage and hour Laws are properly classified. All compensation, including wages, commissions and bonuses, payable to employees or individual
or single-member entity independent contractors or consultants of the Company for services performed on or prior to the date hereof,
with the exception of base salary or hourly wages for the current pay period that are payable on the Company’s next regular payroll
date, have been paid in full.
(e)
Since the Lookback Date, (i) no allegations of sexual harassment, sexual misconduct, discrimination, retaliation or other misconduct
allegations have been made, initiated, filed, or, to the Knowledge of the Company, threatened against any current or former employee
or independent contractor of the Company in his or her capacity as such, (ii) to the Knowledge of the Company, no incident of any such
sexual harassment, sexual misconduct, discrimination, retaliation, or other misconduct has occurred in the workplace, and (iii) the Company
has not entered into any settlement agreement related to allegations of sexual harassment, sexual misconduct, discrimination, retaliation,
or other misconduct by any of the individuals described in clause (i) hereof. The Company has not incurred, and, to the Knowledge
of the Company, no circumstances exist under which the Company could reasonably be expected to incur, any material liability arising
from any of the allegations described in clause (i) in the preceding sentence, and to the Knowledge of the Company, there is no
potential for any such allegations described in clause (i) in the preceding sentence, that, if known to the public, would be reasonably
likely to bring the Company into disrepute.
(f)
To the Knowledge of the Company, no current or former employee or independent contractor of the Company is in violation of any restrictive
covenant or other obligation owed to the Company or any third party in connection with such Person’s employment or engagement by
the Company.
Section
4.14 Insurance. Schedule 4.14 of the Disclosure Schedules sets forth a true and complete list of all insurance policies
maintained by the Company, together with the carriers and liability limits, for each such policy (collectively, the “Insurance
Policies”). Such Insurance Policies are in full force and effect, all premiums with respect thereto have been paid in full,
and no written notice of cancellation or termination has been received by the Company with respect to any such Insurance Policy since
the Lookback Date. The Company is not in material default with respect to any provision contained in any Insurance Policy. The Company
has not received notice of, nor is there threatened, any cancellation, termination, reduction of coverage or material premium increases
with respect to any Insurance Policy. All claims, litigation and circumstances that could reasonably lead to a claim that would be covered
by any Insurance Policy have been properly reported to the applicable insurer. The Company has never been denied a claim under an Insurance
Policy.
Section
4.15 Real Property; Title to Property; Inventory.
(a)
The Company does not own, and has never owned, any Owned Real Property or any interest therein (including any fee, leasehold (but for
avoidance of doubt, other than with respect to the Leased Real Property), easement, license or other real property interest). The Company
is not a party to any agreement or option to purchase or otherwise acquire any real property or any interest therein. The Company does
not have any outstanding obligations to pay any real property Taxes.
39
(b)
Since the Lookback Date, the Company has not received written notice that any Leased Real Property is subject to any decree of, or order
by, a Governmental Authority to be sold or condemned, expropriated or otherwise taken by any Governmental Authority nor, to the Knowledge
of the Company, is any such sale, condemnation, expropriation or taking being threatened with respect to any Leased Real Property.
(c)
Since the Lookback Date, no written notice has been received by the Company from any Governmental Authority concerning: (i) any material
violation of any Laws with respect to any of the Leased Real Property; or (ii) any material defect or deficiency in any of the Leased
Real Property, or any requirement to repair, alter or make improvements to any of the Leased Real Property, in each case that would be
material to the Company; and which, in each case, has not been complied with or cured to the satisfaction of such Governmental Authority,
or which remains outstanding and unresolved.
(d)
The Company is in possession of the Leased Real Property, and the Company has not (i) leased, subleased, licensed or otherwise granted
to any Person the right to use or occupy any Leased Real Property or any portion thereof or interest therein or (ii) granted any outstanding
options, rights of first offer or rights of first refusal to purchase any such Leased Real Property or any portion thereof or interest
therein in favor of any third party.
(e)
All buildings, structures, facilities and improvements located on the Leased Real Property comply in all material respects with valid
and current certificates of occupancy to the extent required by Law for the use thereof as currently conducted.
(f)
Schedule 4.15(f) of the Disclosure Schedules sets forth a true, correct, and complete list of the street address of each parcel
of Leased Real Property and the identity of the lessor, lessee and current occupant (if different from lessee) of each such parcel of
Leased Real Property. The Company has a valid leasehold estate in all Leased Real Property, free and clear of all Encumbrances, other
than Permitted Encumbrances. Each lease or sublease governing Leased Real Property is in full force and effect, and there exists no default
under any such lease by the Company or, to the Knowledge of the Company, any other party thereto, nor any event which, with notice or
lapse of time or both, would constitute a default thereunder by the Company or, to the Knowledge of the Company, any other party thereto.
Except as would not be material to the Company, the use and occupancy by the Company of any Leased Real Property does not violate any
applicable Law (including any zoning, building, ordinance, code, government approval or otherwise).
(g)
The Leased Real Property constitutes all of the real property that is used or held for use by the Company in the conduct of its business,
as conducted. The Company has not entered into an agreement or is otherwise subject to an obligation to acquire or dispose of any Owned
Real Property or Leased Real Property. The Company is not party to a pending litigation with respect to any Leased Real Property.
(h)
All buildings, structures, fixtures and other improvements located on the Leased Real Property for which the Company is responsible (and,
to the Knowledge of the Company, on the rest of the Leased Real Property) (i) are in good operating condition and repair, are free of
any material defect, ordinary wear and tear excepted (including any latent or patent structural, mechanical or other significant defect,
soil condition or deficiency in the improvements) and (ii) are adequate in all material respects for the uses for their intended purposes
in the ordinary course of business of the Company and other uses currently conducted at such property.
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(i)
Each portion of the Leased Real Property has adequate rights of way and access to public ways and all water, sewer, sanitary and storm
drain facilities, community services and all public utilities necessary for the construction, use, occupancy, operation and maintenance
for its intended purposes in the ordinary course of business and other uses as currently conducted at such portion of such property.
The Company has not received any notice from any utility company or municipality of any fact or condition which could result in the discontinuation
of presently available or otherwise necessary sewer, water, electric, gas, telephone or other utilities or services for the Leased Real
Property that would be material to the Company. The Leased Real Property has access to public roads, streets or the like, or valid perpetual
easements over private streets, roads, or other private property for such ingress to and egress from such property.
(j)
No portion of the Leased Real Property is subject to an action for rescission, resolution, requisition, or expropriation or is subject
to an administrative measure resulting in restriction of their occupation that would be material to the Company.
(k)
The Company owns, leases, licenses, or has the right to use all of its respective material tangible assets and properties, in each case,
free and clear of all Encumbrances, except for Permitted Encumbrances.
(l)
All items of inventory held, acquired or manufactured by the Company have been held, acquired and/or manufactured in the ordinary course
of business. The inventory of the Company is in good and merchantable condition, valued at the lower of cost or market value, and generally
suitable and consists of a quality and quantity usable or salable in the ordinary course of business for the purposes intended, except
for obsolete, defective, or slow-moving items that have been written down or for which adequate reserves have been established in the
Interim Financial Statements.
Section
4.16 Intellectual Property; IT Assets; Data Privacy and Security.
(a)
Schedule 4.16(a) of the Disclosure Schedules sets forth a true and complete list that (i) identifies all Registered Company Intellectual
Property and all material unregistered Marks included in the Owned Intellectual Property and (ii) specifies, where applicable, the jurisdictions
in which any Registered Company Intellectual Property has been registered or in which an application for such registration has been filed,
including the respective registration or application numbers and the names of all owners of record title. All Registered Company Intellectual
Property is currently in compliance with all formal legal requirements (including, as applicable, payment of filing, examination, annuity
and maintenance fees, inventor declarations, proofs of working or use, timely post-registration filing of affidavits of use and incontestability,
and renewal applications) in all material respects, and the Company has, in all material respects, taken all actions necessary, to obtain,
perfect and maintain such Registered Company Intellectual Property in full force and effect. All Registered Company Intellectual Property
and all other material Owned Intellectual Property is valid, subsisting and enforceable. No Registered Company Intellectual Property
(i) has been or is now involved in any interference, reissue, re-examination, inter-partes review, post-grant review, cancellation or
opposition proceeding or (ii) has been cancelled, invalidated, revoked, terminated, abandoned, allowed to lapse or not renewed.
(b)
The Company (i) is the sole and exclusive owner of all rights, title and interests in and to all Owned Intellectual Property, free and
clear of any Encumbrances (other than Permitted Encumbrances) and (ii) has valid and continuing rights (pursuant to valid and enforceable
agreements) to use, sell, license and otherwise exploit, as the case may be, all other Company Intellectual Property as the same is used,
sold, licensed and otherwise exploited by the Company in the business as currently conducted. The Company Intellectual Property comprises
all of the Intellectual Property used in connection with the operation of the business of the Company as currently conducted, and there
is no other Intellectual Property that is material to or necessary for the operation of the business of the Company.
41
(c)
Since the Lookback Date, no claim has been asserted or threatened that the use or exploitation by the Company of any Owned Intellectual
Property or the Products in the operation of the business of the Company, infringes, misappropriates or otherwise violates (or since
the Lookback Date, has infringed, misappropriated or violated) any Intellectual Property of any third party or that any Owned Intellectual
Property is invalid or unenforceable. The operation of the business of the Company, as currently conducted, and the Products and Owned
Intellectual Property do not infringe, misappropriate or violate (and have not in the past infringed, misappropriated or violated) any
Intellectual Property of any third party. To the Knowledge of the Company, no third party is conflicting with, infringing, misappropriating
or violating any Owned Intellectual Property. Since the Lookback Date, the Company has not asserted or threatened any claim against any
third party alleging infringement, misappropriation, or violation of any Owned Intellectual Property. There are no settlements, covenants
not to sue, consents, judgments, or orders or similar obligations that: (i) materially restrict the rights of the Company to use any
Intellectual Property in any manner, (ii) materially restrict the business of the Company in order to accommodate any third party’s
Intellectual Property, or (iii) permit third parties to use any Owned Intellectual Property.
(d)
The Company has taken commercially reasonable steps to maintain the secrecy and confidentiality of all trade secrets and material know-how
owned by the Company (collectively, the “Company Trade Secrets”), including taking reasonable steps to safeguard any
such information that is accessible through computer systems or networks. Such commercially reasonable steps include, except as would
not otherwise be material to the Company, requiring each employee, consultant and any other Person with access to the Company Trade Secrets
to execute a binding confidentiality agreement as further set forth on Schedule 4.16(d) of the Disclosure Schedules. No such Company
Trade Secret has been authorized by the Company to be disclosed (or, to the Knowledge of the Company, has been disclosed) to any Person
other than (i) pursuant to a written contract adequately restricting the disclosure and use of such Company Trade Secret or (ii) to a
Person who otherwise has a duty to protect such Company Trade Secret. To the Knowledge of the Company, there has not been any breach
by any party to such confidentiality agreements.
(e)
Each Person who is or was involved in the creation or development of any portion of, or would otherwise have rights in or to, any material
Owned Intellectual Property has executed a valid and enforceable written agreement with the Company that assigns to the Company all rights,
title and interest in and to any and all such Intellectual Property (“IP Assignment Agreement”). Except as would not
have, or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and other than rights
provided under Laws relating to remuneration of inventors, (i) no current or former shareholder, officer, director, or employee of the
Company has any claim, right (whether or not currently exercisable) or ownership interest in any Owned Intellectual Property, and (ii)
all agreements between such shareholder, officer, director, employee, a third party, or other assignor and the Company assigning to the
Company any right, title or interest in any Patents included in the material Registered Company Intellectual Property have been recorded
as required in each applicable jurisdiction.
(f)
No material source code included in the Owned Intellectual Property has been delivered, licensed or made available to any escrow agent
or other Person who is or at the time of such delivery, licensing or availability, was not an employee of the Company, and the Company
has no duty or obligation (whether present, contingent, or otherwise) to deliver, license, or make available such source code to any
escrow agent or other Person.
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(g)
Except as set forth on Schedule 4.16(g) of the Disclosure Schedules, the Company has not: (i) incorporated Open Source Software
into, or combined or linked Open Source Software with, the Company Intellectual Property; (ii) distributed Open Source Software in conjunction
with any Products; or (iii) used Open Source Software to develop, distribute or provide the Products, in each case of (i) through (iii),
in a manner which would result, and would reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect,
including any use of Open Source Software that, with respect to the foregoing clause (i), (ii) or (iii) that requires, as a condition
of use, modification and/or distribution of such Open Source Software that other Software incorporated into, derived from or distributed
with such Open Source Software be (1) disclosed or distributed in source code form, (2) licensed for the purpose of making derivative
works, or (3) redistributable at no charge. The Company is in compliance, in all material respects, with the terms and conditions of
all licenses for Open Source Software.
(h)
No government, university, college, other educational institution or research center has any ownership or exclusive rights in any material
Owned Intellectual Property.
(i)
To the Knowledge of the Company, neither the Products nor the Systems contain any “virus”, “worm”, “time
bomb”, “key-lock”, “back door”, “drop dead device”, “Trojan horse”, “spyware”,
or “adware” or any other code designed or intended to have any of the following functions: (i) disrupting, disabling, harming,
or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system or network or other device
on which such code is stored or installed, or (ii) compromising the privacy or data security of a user or damaging or destroying any
data or file without the user’s consent (collectively, “Malicious Code”). The Company implements industry standard
measures designed to prevent the introduction of Malicious Code into Products and Systems.
(j)
As of immediately following the Closing, the Company will own or have the same rights in and to all material Company Intellectual Property
that the Company had immediately prior to the Closing, free and clear of all Encumbrances without the payment of any additional amounts
or consideration other than ongoing fees, royalties or payments which the Company would otherwise have been required to pay absent the
transactions contemplated hereunder. The transactions contemplated by this Agreement do not and will not conflict with, result in the
forfeiture of, impair or result in a breach of or default under, or payment of any additional amount with respect to, or require the
consent of any other Person in respect of, the right to own or use any material Company Intellectual Property.
(k)
In connection with its collection, storage, Processing, dissemination, transfer (including, without limitation, any transfer across national
borders) and/or use of any Personal Data, the Company is and since the Lookback Date, has at all times complied in all material respects
with (i) all Privacy Laws; (ii) privacy policies applicable to the Company; and (iii) the requirements of any contract to which the Company
is a party, including any applicable terms of use (collectively, the “Data Protection Requirements”). The execution,
delivery, and performance of this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby do not
and will not conflict with or result in a material violation or breach of any Data Protection Requirements or to the Knowledge of the
Company otherwise prohibit or limit the transfer of Personal Data to the Buyer.
(l)
The Systems (i) operate and perform in all material respects in accordance with their respective documentation and functional specifications
and otherwise as required by the Company and have not materially malfunctioned or failed since the Lookback Date, and (ii) are adequate
and sufficient for the operations of the Company. The Company has implemented commercially reasonable data backup, data storage, system
redundancy and disaster recovery procedures, as well as a commercially reasonable business continuity plan.
(m)
Since the Lookback Date, the Company has not (i) experienced a material Security Incident; (ii) been required pursuant to any Privacy
Laws to notify customers, consumers, employees, Governmental Authority, or any other Person of any Security Incident; (iii) been the
subject of any Action or any inquiry or investigation of any Governmental Authority with respect to compliance with any Privacy Law,
or (iv) received any written notice, request, claim, complaint, correspondence or other communication from any Governmental Authority
relating to any Security Incident or violation of any Privacy Law.
43
(n)
The Company is in compliance in all material respects with all Laws applicable to the Company’s development, use and implementation
of AI Technology and industry standards for the ethical and responsible use of AI Technology applicable to the Company, including oversight
of employees and contractors’ use of AI Inputs and development and implementation of AI Technology. The Company has not received
any written notice, complaint, claim, proceeding, litigation, inquiry, audit, investigation, or other action by any Governmental Authority
or other Person concerning any Company’s development or implementation of AI Technology; and, to the Knowledge of the Company,
there are no facts or circumstances that could reasonably be expected to give rise to any of the foregoing.
Section
4.17 Taxes.
(a)
All Tax Returns required to have been filed by or with respect to the Company subsequent to (and including) the date that is four years
prior to the date hereof have been timely and properly filed (taking into account any extension of time to file granted or obtained),
and all such Tax Returns are true, accurate and complete in all material respects. All Taxes due and payable (whether or not shown as
due on any Tax Return) have been timely and properly paid.
(b)
No deficiency for any Tax has been asserted or assessed by a Governmental Authority in writing against the Company that has not been
satisfied by payment, settled or withdrawn.
(c)
There are no Tax liens on the assets of the Company (other than Permitted Encumbrances).
(d)
All Taxes that the Company is obligated to withhold from amounts paid or owing to any employee, former employee, independent contractor,
creditor, equity holder or other Person have been withheld in compliance with applicable Law, and the Company has complied in all material
respects with all related material reporting and recordkeeping requirements.
(e)
There are no Actions with respect to Tax pending or threatened in writing against or with respect to the Company.
(f)
Other than automatic extensions of time to file a Tax Return obtained in the ordinary course of business, the Company has not waived
any statute of limitations in respect of, or extended the period for the assessment or collection of, any Taxes which waiver or extension
is still in effect.
(g)
With respect to the period subsequent to (and including) the date that is four (4) years prior to the date hereof, the Company (i) is
not and has not been a member of any Affiliated Group filing a consolidated, combined, unitary or similar Tax Return (other than a group
the common parent of which is or was the Company) and (ii) has no liability for a material amount of Taxes of any Person (other than
Taxes of the Company) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law), as a transferee
or successor, by contract, or otherwise.
(h)
With respect to the period subsequent to (and including) the date that is four years prior to the date hereof, the Company is not party
to, or bound by, any Tax sharing, Tax indemnification, Tax allocation or similar agreement or arrangement, other than pursuant to any
customary provision in a commercial agreement that was entered into in the ordinary course of business and the principal subject of which
is not related to Taxes.
44
(i)
Except for any Cash-to-Accrual Taxes, the Company will not be required to include any item of income in, or exclude any item of deduction
from, taxable income for, or pay any material Taxes in, any taxable period (or portion thereof) beginning after the Closing Date as a
result of any (i) change in or improper use of any method of accounting for a Pre-Closing Tax Period, (ii) installment sale or open transaction
disposition made, prepaid amount received or deferred revenue accrued, by the Company on or prior to the Closing Date, (iii) intercompany
transaction or excess loss account described in the Treasury Regulations under Section 1502 of the Code (or any corresponding or similar
provision of state, local or non-U.S. Law), (iv) transaction or election occurring on or prior to the Closing Date, or as a result of
any recapture of any Tax loss or credit (including a dual consolidated loss) utilized in a Pre-Closing Tax Period, (v) election made
under 965(h) of the Code, or (vi) closing agreement within the meaning of Section 7121 of the Code (or any similar provision of state,
local or non-U.S. Law).
(j)
No private letter rulings, technical advice memorandum or similar ruling has been issued by, and no request for a private letter ruling,
administrative relief, technical advice or a change of any method of accounting, or any other request, is pending with any Governmental
Authority with respect to the Company that would have an effect on the Company for any Tax period beginning after the Closing Date.
(k)
The Company is not subject to Tax in any country other than its country of incorporation, organization or formation by virtue of having
employees, a permanent establishment (within the meaning of an applicable Tax treaty) or an office or fixed place of business in that
country or otherwise.
(l)
The Company has not received a written claim from any Governmental Authority in a jurisdiction where the Company does not file a particular
type of Tax Return or pay a particular type of Tax stating that the Company is or may be subject to taxation by, or required to file
any such Tax Return in, that jurisdiction that has not been paid in full, settled or otherwise resolved.
(m)
The Company has not been, in the last two years, a “controlled corporation” or a “distributing corporation” in
a transaction that was purported or intended to be governed in whole or in part by Section 355 or 361 of the Code.
(n)
The Company is not and has not been, a party to or otherwise participated in any “listed transaction” (as defined in Section
6707A(c)(2) of the Code or any similar provision of state, local or non-U.S. Law).
(o)
The Company has no liability in respect of any unclaimed property or escheat. The Company is in substantial compliance with applicable
Law pertaining to escheat and unclaimed property.
(p)
The Company (i) is not a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code and has
not been classified as such during the applicable period specified in Section 897(c)(l)(A)(ii) of the Code; and (ii) has not made an
election pursuant to Section 897(i) of the Code to be treated as a domestic corporation.
(q)
The Company has not (i) entered into a gain recognition agreement pursuant to Treasury Regulations Section 1.367(a)-8 or (ii) transferred
any intangible assets, the transfer of which would be subject to the rules of Section 367(d) of the Code.
45
(r)
The Company has complied in all material respects with all applicable transfer pricing requirements under applicable Law.
(s)
At all times since its formation, the Company was validly treated for federal income Tax purposes and applicable state and local income
tax purposes as an “S corporation” within the meaning of Sections 1361 and 1362 of the Code and was validly treated in a
similar manner for purposes of the income Tax laws of all states and localities in which it has been subject to taxation. From the incorporation
of the Company, no Person has taken or failed to take any action that would cause or otherwise result in the termination of the status
of the Company as an “S corporation” within the meaning of Sections 1361 and 1362 of the Code during such period. The Company
owns no assets the disposition of which could give rise to Tax under Section 1374 of the Code. The Company is not and never has been
subject to Tax under Section 1375 of the Code. No Governmental Authority has ever challenged or threatened in writing, or to the Knowledge
of the Company, threatened orally, to challenge the status of the Company as an S corporation for Tax purposes.
Section
4.18 Environmental Matters.
(a)
The Company has obtained all Environmental Permits required under Environmental Laws for its operations as currently conducted and, where
applicable, has applied in a timely manner for renewal of such Environmental Permits in accordance with their terms, and each such permit
is disclosed in Schedule 4.18(a) of the Disclosure Schedules.
(b)
(i) The Company is now, and since the Lookback Date has been, in compliance in all material respects with all applicable Environmental
Laws, all material terms of Environmental Permits, and all contract terms relating to Environmental Laws or Hazardous Materials, and
(ii) there are no written claims alleging unresolved violation of or liability under applicable Environmental Laws or contract terms
relating to Environmental Laws or Hazardous Materials pending or, to the Knowledge of the Company, threatened against the Company, and
there have been no written claims alleging such violations or liability at any time since the Lookback Date.
(c)
The Company is not currently subject to any order issued by a Governmental Authority arising from or relating to alleged violations of
Environmental Laws.
(d)
There has been no release or migration of Hazardous Materials at or to any Leased Real Property or elsewhere that, to the Knowledge of
the Company, could reasonably be expected to result in material liability for the Company under any Environmental Laws or any contract
term relating to Environmental Laws or Hazardous Materials.
(e)
The Company has never deployed firefighting foams or other supplies that contain per- or polyfluoroalkyl substances, and such firefighting
supplies are not now present at any Leased Real Property.
(f)
The Company has not retained or assumed, by contract or operation of Law, any material liabilities or obligations under Environmental
Law of third parties.
(g)
The Company has provided or otherwise made available to the Buyer (i) all Phase I and Phase II site assessments conducted since the Lookback
Date, and other material reports and data relating to the possible presence of Hazardous Materials at any real property currently owned,
operated, or leased by the Company; and (ii) any material audits, reports, risk assessments and other similar documents conducted since
the Lookback Date related to compliance with Environmental Laws or the release of Hazardous Materials.
46
Section
4.19 Material Contracts.
(a)
Schedule 4.19(a) of the Disclosure Schedules sets forth a true and complete list of each of the following written contracts and
agreements, other than purchase orders entered into in the ordinary course of business of the Company, that is of a type described below
to which the Company is a party or bound (such contracts and agreements as described in this Section 4.19(a) being “Material
Contracts”):
(i)
contracts that provide for payment by the Company of more than $50,000 per year;
(ii)
contracts that provide for receipt by the Company of more than $50,000 per year, including any such contracts with customers or clients;
(iii)
contracts relating to (x) Indebtedness for borrowed money or (y) other Indebtedness for an amount more than $50,000;
(iv)
contracts that (A) limit or purport to limit the ability of the Company to (1) conduct or compete in any line of business or with any
Person or in any geographic area or during any period of time, (2) solicit sales or business from any Person or (3) solicit for employment
or hire any Person or (B) grant any exclusive or similar rights to any Person or contain “most favored nations” clauses;
(v)
contracts relating to any joint venture, partnership or similar agreements or arrangements;
(vi)
contracts under which the Company is lessee of or holds or operates any real property owned by any other Person;
(vii)
contracts under which the Company is lessee of or holds or operates any personal property owned by any other Person;
(viii)
contracts under which the Company is lessor of or permits any third party to hold or operate any real or tangible property;
(ix)
contracts providing for capital expenditures with unpaid obligations or commitments;
(x)
contracts containing an exclusive sale or purchase obligation binding upon the Company with respect to any Product, service or geographic
area;
(xi)
contracts with any Governmental Authority;
(xii)
license agreements relating to the use of any third party Intellectual Property, other than Open Source Software Licenses and licenses
for off-the-shelf, commercially available software that is licensed for a fee of no more than $10,000 per year;
(xiii)
contracts pursuant to which the Company has granted any Person any license or interest under (including a right to receive a license
or a covenant not to sue) any Owned Intellectual Property, excluding, for listing purposes only, non-exclusive license agreements between
the Company and its customers entered into in the ordinary course of business consistent with past practices, IP Assignment Agreements,
and licenses which are incidental to the primary purpose of the agreement;
47
(xiv)
contracts relating to the development of any material Owned Intellectual Property, excluding, for listing purposes only, IP Assignment
Agreements;
(xv)
contracts with any Material Customer or Material Supplier;
(xvi)
contracts (a) that relate to any outstanding obligations or future obligations related to any disposition or acquisition of businesses,
divisions, product lines, assets or properties by the Company (except in the ordinary course of business), or any merger, sale of shares,
sale of assets, business combination or other corporate transaction with respect to the Company (other than this Agreement) or (b) under
which the Company has any obligations to pay any amounts in respect of purchase price adjustments or “earn-outs”;
(xvii)
settlement agreements, conciliations or similar agreements with respect to Actions, or contracts relating thereto, that are reasonably
expected to (a) obligate the Company to make payments after Closing, (b) restrict or otherwise affect the operations of the Company,
the Buyer Parties or their respective Affiliates in any way after the Closing Date or (c) impose fines or criminal penalties that remain
unpaid after the Closing Date;
(xviii)
any hedging, futures, options or other derivative contract;
(xix)
all employment or other compensatory contracts, including severance agreements, with or in respect of any employee, officer, director,
independent contractor or other individual service provider of the Company (or, to the extent that the Company has continuing obligations
under any such contract, any former employee, officer, director, independent contractor or other individual service provider) of the
Company;
(xx)
any Collective Bargaining Agreement; and
(xxi)
any contracts granting a power of attorney with respect to the Company to any Person.
(b)
The Company has made available to the Buyer true and complete copies of each Material Contract. Each Material Contract is valid, binding
and has been duly authorized (including having been executed and adequately stamped and registered as required under applicable Law)
by the Company and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect. Neither the Company
nor, to the Knowledge of the Company, the counterparties thereto, is in breach of, or default under, any Material Contract, except for
breaches or defaults that are not material to such Material Contract. To the Knowledge of the Company, no event has occurred which, individually
or together with other events, would reasonably be expected to result in a breach of or a default under or a termination of any Material
Contract (in each case, with or without notice or lapse of time or both), except for breaches or defaults that would not be material
to such Material Contract.
(c)
Since the Lookback Date, the Company has not been subject to material liability in respect of any breach of any express or implied warranties
on any Product or service sold or provided by the Company, other than replacement or repair of a Product. Since the Lookback Date, except
as adequately reflected or reserved against on the Interim Financial Statements, the Company has no material liabilities with respect
to the failure of any Product or service designed, manufactured, or sold by the Company and is in conformity in all material respects
with all Product specifications or contractual commitments. Since the Lookback Date, the Company has not been, and none of their respective
Products are or have ever been, subject to any Product recall, withdrawal, seizure, sequestration, or quarantine, whether voluntarily
or at the discretion or order of any Governmental Authority and there is no reasonable basis for any recall, withdrawal, seizure, sequestration,
or quarantine.
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Section
4.20 Material Customers and Suppliers.
(a)
Schedule 4.20(a) of the Disclosure Schedules sets forth a true and complete list of (i) the names and addresses of the top ten
largest customers of the Company (based on the dollar amount of sales) during each of the 12 months ended December 31, 2024 and December
31, 2025 (each, a “Material Customer”). Since the Lookback Date, no Material Customer has terminated, cancelled or
materially adversely modified its relationship with the Company. Since the Lookback Date, no Material Customer has notified the Company
that such Material Customer has ceased or will cease to be a customer of the Company or that such Material Customer intends to terminate
or adversely modify its relationship with the Company.
(b)
Schedule 4.20(b) of the Disclosure Schedules sets forth a true and complete list of the names and addresses of the top ten largest
suppliers of the Company (based on the dollar amount of sales) during each of the 12 months ended December 31, 2024 and December 31,
2025 (each, a “Material Supplier”). Since the Lookback Date, no Material Supplier has terminated, cancelled or materially
adversely modified its relationship with the Company. Since the Lookback Date, no Material Supplier has notified the Company that such
Material Supplier has ceased or will cease to be a supplier of the Company or that such Material Supplier intends to terminate or adversely
modify its relationship with the Company.
Section 4.21 Related
Party Transactions. Except as set forth in Schedule 4.21 of the Disclosure Schedules, no Related Party of the Sellers or the
Company, nor, to the Knowledge of the Company, any member of such individual’s immediate family, as applicable: (a) has any interest
in any asset, real or personal, owned or leased by the Company or used in connection with the businesses of the Company or (b) is engaged
in any transaction, agreement, contract, commitment, arrangement or understanding with the Company (other than payments made to, and
other compensation provided to, employees, officers and directors (or equivalent) in the ordinary course of business) (each of (a) and
(b), collectively, a “Related Party Transaction”). Except as set forth in Schedule 4.21 of the Disclosure Schedules,
there are no outstanding notes payable to, accounts receivable from or advances by the Company to, and the Company is not otherwise a
debtor or creditor of, or has any liability or other obligation of any nature to, any Related Party of the Sellers or the Company.
Section 4.22 No
Insolvency Proceedings. No insolvency Action of any character, including bankruptcy, receivership, reorganization, composition or
arrangement with creditors, voluntary or involuntary, similar Action under applicable Law, affecting any of the Company is pending, and
the Company has not made any assignment for the benefit of creditors, and the Company has not been declared insolvent or bankrupt by
a Governmental Authority.
Section 4.23 Brokers.
No broker, finder, financial advisor or investment banker is entitled to any brokerage, finder’s or other fee or commission or
other reimbursement of expenses in connection with the transactions contemplated hereby based upon arrangements made by or on behalf
of the Company.
Section 4.24 Exclusivity
of Representations and Warranties. Neither the Company nor any of its Affiliates or Representatives is making any representation
or warranty on behalf of the Company of any kind or nature whatsoever, oral or written, express or implied, except as expressly set forth
in this Article IV or any other Transaction Document and the Company hereby disclaims any such other representations or warranties.
49
Article
V
REPRESENTATIONS AND WARRANTIES OF THE BUYER PARTIES
Each
of the Buyer Parties, as applicable, hereby represents and warrants to the Sellers as follows:
Section 5.1 Organization.
Such Buyer Party is a corporation duly organized, validly existing and in good standing under the Laws of Nevada, and has all necessary
corporate or other equivalent power and authority to own, lease and operate its properties and assets and to carry on its business as
it is now being conducted.
Section 5.2 Authority.
Such Buyer Party has the corporate or other equivalent power and authority to execute and deliver this Agreement and each of the other
Transaction Documents to which it will be a party, to perform its obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution, delivery and performance by such Buyer Party of this Agreement and each of the other
Transaction Documents to which it will be a party and the consummation by such Buyer Party of the transactions contemplated hereby and
thereby have been duly and validly authorized by all necessary corporate action, and no other corporate action on the part of such Buyer
Party is necessary to authorize the execution, delivery or performance by such Buyer Party of or under this Agreement or any of the other
Transaction Documents or the consummation by such Buyer Party of the transactions contemplated hereby or thereby. This Agreement has
been, and upon execution of each of the other Transaction Documents to which it will be a party will have been, duly executed and delivered
by such Buyer Party and, assuming due execution and delivery by each of the other parties hereto and thereto, this Agreement constitutes,
and upon execution of each of the other Transaction Documents to which such Buyer Party will be a party will constitute, the legal, valid
and binding obligation of such Buyer Party, enforceable against such Buyer Party in accordance with its terms, subject to the Enforceability
Exceptions.
Section
5.3 No Conflict; Required Filings and Consents.
(a)
The execution, delivery and performance by such Buyer Party of this Agreement and each of the other Transaction Documents to which such
Buyer Party will be a party, and the consummation of the transactions contemplated hereby and thereby do not and will not:
(i)
conflict with, violate or constitute or result in a breach or default under (in each case, with or without notice of lapse of time, or
both) the Organizational Documents of such Buyer Party;
(ii)
conflict with or violate any Law or material Permit applicable to such Buyer Party or by which any property or asset of such Buyer Party
is bound or affected; or
(iii)
conflict with, violate, result in any breach of, constitute a default (or an event that, with notice or lapse of time or both, would
become a default) under, give rise to any right of termination, cancellation or acceleration with respect to, result in the payment of
any additional fee or penalty under, or require any consent of or notice to any Person pursuant to, any material contract or agreement
to which such Buyer Party is a party; except, in the case of clause (ii) or (iii), for any such conflicts, violations, breaches, defaults
or other occurrences that would not have, or would not reasonably be expected to have, individually or in the aggregate, a Buyer Material
Adverse Effect or that arise as a result of any facts or circumstances relating to the participation of the Sellers or any of their Affiliates
(as opposed to any third party) in the transactions contemplated by this Agreement.
50
(b)
Such Buyer Party is not required to file, seek or obtain any notice, authorization, approval, order, permit or consent of or with any
Governmental Authority in connection with the execution, delivery and performance by such Buyer Party of this Agreement or each of the
other Transaction Documents to which such Buyer Party will be a party or the consummation of the transactions contemplated hereby or
thereby, except (i) for such filings as may be required by any applicable federal or state securities or “blue sky” Laws,
(ii) where failure to obtain such consent, approval, authorization or action, or to make such filing or notification, would not have,
and would not reasonably be expected to have, individually or in the aggregate, a Buyer Material Adverse Effect or (iii) as may be necessary
as a result of any facts or circumstances relating to the participation of the Sellers or any of their Affiliates (as opposed to any
third party) in the transactions contemplated by this Agreement.
Section 5.4 Solvency.
Assuming (i) that the Company was solvent immediately prior to the Closing and (ii) the accuracy of the Company’s representations
and warranties in Article IV, immediately following the Closing, neither of the Buyer Parties nor the Company, will (a) be insolvent
or left with unreasonably small capital, (b) have incurred debts beyond their ability to pay such debts as they mature (taking into account
refinancing opportunities), or (c) have liabilities in excess of the reasonable market value of their respective assets.
Section 5.5 Brokers.
No broker, finder, financial advisor or investment banker is entitled to any brokerage, finder’s or other fee or commission payable
prior to the Closing Date or other reimbursement of expenses in connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of a Buyer Party.
Section 5.6 Investment
Intent. The Buyer is acquiring the Interests for its own account for investment purposes only and not with a view to any public distribution
thereof or with any intention of selling, distributing or otherwise disposing of the Interests in a manner that would violate the registration
requirements of the Securities Act. The Buyer agrees that the Interests may not be sold, transferred, offered for sale, pledged, hypothecated
or otherwise disposed of without registration under the Securities Act and any applicable state securities Laws, except pursuant to an
exemption from such registration under the Securities Act and such Laws. The Buyer is able to bear the economic risk of holding the Interests
for an indefinite period (including total loss of its investment) and has sufficient knowledge and experience in financial and business
matters so as to be capable of evaluating the merits and risk of its investment.
Section 5.7 Buyer
Parties’ Investigation and Reliance. Each Buyer Party is a sophisticated purchaser and has made its own independent investigation,
review and analysis regarding the transactions contemplated hereby, which investigation, review and analysis were conducted by the Buyer
Parties together with expert advisors, including legal counsel, that it has engaged for such purpose. None of the Sellers, the Company
or any of their respective Affiliates or Representatives have made any representation or warranty, express or implied, as to the accuracy
or completeness of any information concerning the Company contained herein or made available in connection with the Buyer Parties’
investigation of the Company, except as expressly set forth in this Agreement or the other Transaction Documents, and the Sellers, the
Company and their respective Affiliates and Representatives expressly disclaim any and all liability that may be based on such information
or errors therein or omissions therefrom. The Buyer Parties have not relied and are not relying on any statement, representation or warranty,
oral or written, express or implied, made by the Sellers, the Company, or any of their respective Affiliates or Representatives, except
as expressly set forth in Article III and Article IV. The Buyer Parties acknowledge that, should the Closing occur, the
Buyer shall acquire the Company on an “as is” and “where is” basis, except as otherwise expressly set forth in
Article III and Article IV. The Buyer Parties acknowledge and agree that the representations and warranties in Article
III and Article IV are the result of arms’ length negotiations between sophisticated parties.
51
Section 5.8 Listing
Exchange. The Parent Common Stock is listed on the Nasdaq Stock Market (the “Nasdaq”), and the Parent has not
received any notice of delisting from the Nasdaq. No judgment, order, ruling, decree, injunction, or award of any securities commission
or similar securities regulatory authority or any other Governmental Authority, or of the Nasdaq, preventing or suspending trading in
any securities of the Parent has been issued, and no proceedings for such purpose are, to the Parent’s knowledge, pending, contemplated
or threatened. The Parent has taken no action that is designed to terminate the registration of the Parent Common Stock under the Exchange
Act of 1934 (the “Exchange Act”).
Section 5.9 Financial
Reports and Regulatory Filings. The Parent has timely filed or furnished with the United States Securities and Exchange Commission
(the “SEC”) all reports, schedules, forms, statements, and other documents (including exhibits and other information
incorporated therein) required to be filed or furnished by it since the Lookback Date under the Exchange Act. The Parent’s Annual
Reports on Form 10-K for the years ended December 31, 2023, 2024, and 2025, and all other reports, registration statements, definitive
proxy statements or information statements filed by it subsequent to December 31, 2025 under Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, in the form filed or as thereafter amended prior to the date hereof (collectively, the “Parent SEC Filings”)
with the SEC as of the date filed or amended prior to the date hereof, as the case may be, (i) complied in all material respects as to
form with the applicable requirements under the Exchange Act, as the case may be, and (ii) did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
The
audited or unaudited financial statements included in the Parent SEC Filings, including any notes thereto or schedules, (x) were prepared
in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or
the omission of notes to the extent permitted by Regulation S-K or, in the case of unaudited statements, as permitted by Form 10-Q of
the SEC) and subject, in the case of interim financial statements, to normal and recurring year-end adjustments, and (y) fairly present
in all material respects the financial position, results of operations and cash flows of the Buyer as at the respective dates thereof
and for the respective periods indicated therein.
Section 5.10 No
Stockholder Approval. The transactions contemplated hereby and in the Transaction Documents, taken together with any transactions
consummated by the Parent and the Buyer as permitted by Article VI, do not require any vote of the stockholders of the Parent
under applicable Law, the rules and regulations of the Nasdaq (or other national securities exchange on which the Parent Common Stock
is then listed) or the organizational documents of the Parent.
Section 5.11 Legal
Proceedings. There are no actions, suits, claims, investigations or other legal proceedings pending or, to the Buyer’s knowledge,
threatened against or by the Buyer or any Affiliate of Buyer that challenge or seek to prevent, enjoin or otherwise delay the transactions
contemplated by this Agreement in any material respect.
Section 5.12 Exclusivity
of Representations and Warranties. None of the Buyer Parties nor any of their Affiliates or Representatives is making any representation
or warranty on behalf of such Buyer Party of any kind or nature whatsoever, oral or written, express or implied, except as expressly
set forth in this Article V or any other Transaction Document, and the Buyer Parties hereby disclaim any such other representations
or warranties.
52
Article
VI
COVENANTS
Section
6.1 Related Party Transactions. Except as set forth on Schedule 6.1 of the Disclosure Schedules, all Related Party Transactions
between the Company, on the one hand, and the Sellers and its Affiliates (other than the Company), on the other hand (collectively, the
“Seller Agreements”), shall be cancelled without any consideration or further liability to any party and without the
need for any further documentation, immediately prior to the Closing.
Section
6.2 Further Assurances. The Sellers shall, and shall cause their Affiliates to, execute and deliver such further instruments of
conveyance and transfer and take such additional action as the Buyer may reasonably request to effect, consummate, confirm, or evidence
the sale and transfer to the Buyer of the Interests and the other transactions contemplated by this Agreement. The Buyer shall, and shall
cause its Affiliates to, execute and deliver such further instruments of assumption and take such additional action as the Sellers may
reasonably request to effect, consummate, confirm, or evidence the transactions contemplated by this Agreement.
Section
6.3 Public Announcements. On and after the date hereof, the parties shall consult with each other before issuing any press release
or otherwise making any public statements with respect to this Agreement or the transactions contemplated hereby, and none of the parties
shall issue any press release or make any public statement prior to obtaining the other parties’ written approval, which approval
shall not be unreasonably withheld, except that no such approval shall be necessary to the extent disclosure may be (i) required by applicable
Law or (ii) required or desirable under applicable stock exchange rules or listing requirements.
Section
6.4 Directors’ and Officers’ Indemnification.
(a)
The Buyer Parties agree that all rights to indemnification or exculpation now existing in favor of the directors and officers of the
Company, as provided in the Company’s Organizational Documents, shall survive the Closing and shall continue in full force and
effect for a period of not less than six years following the Closing Date and that the Company will perform and discharge the obligations
to provide such indemnity and exculpation after the Closing; provided, however, that all rights to indemnification and
exculpation in respect of any Action arising out of or relating to matters existing or occurring at or prior to the Closing Date and
asserted or made within such six-year period shall continue until the final disposition of such Action. From and after the Closing, the
Buyer Parties shall not, and shall cause each of their respective Subsidiaries and Affiliates (including the Company) not to, amend,
repeal or otherwise modify the indemnification provisions of the Company’s Organizational Documents as in effect at the Closing
in any manner that would adversely affect the rights thereunder of individuals who at the Closing were directors, officers, employees,
or agents of the Company.
(b)
As of the Closing, the Buyer Parties and the Sellers have obtained, at the Buyer Parties’ sole cost and expense, from the providers
of the current officers’ and directors’ liability insurance of the Company a non-cancelable run-off insurance policy (the
“D&O Insurance”) for a period of six years following the Closing Date, covering liability and acts or omissions
occurring on or prior to the Closing Date with respect to those Persons who are presently covered by such insurance at limit levels and
otherwise on terms with respect to such coverage no less favorable to the insured than those of such insurance in effect on the date
hereof.
(c)
In the event any of the Buyer Parties or the Company or any of their respective successors or assigns (i) consolidates with or merges
into any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers
all or substantially all of its properties and assets to any Person, then and in either such case, the Parent shall make proper provision
so that the successors and assigns of the applicable Buyer Party or the Company, as the case may be, shall assume the obligations set
forth in this Section 6.4.
53
(d)
The provisions of this Section 6.4 shall survive the consummation of the Closing and continue for the periods specified herein.
This Section 6.4 is intended to benefit the directors and officers of the Company and any other Person or entity (and their respective
heirs, successors and assigns) referenced in this Section 6.4 or indemnified hereunder, each of whom may enforce the provisions
of this Section 6.4 (whether or not parties to this Agreement). All of the Persons referenced in the immediately preceding sentence
are intended to be third party beneficiaries of this Section 6.4.
Section
6.5 Reserved.
Section
6.6 Additional Listing Application; Removal of Restrictive Legends.
(a)
As promptly as practicable after the date of this Agreement, but in any event after taking into consideration the rules and regulations
of the Nasdaq with respect to the timing of the Additional Listing Application (as hereinafter defined) and the supporting documents
required to accompany the Additional Listing Application, the Buyer Parties shall submit to the Nasdaq an additional supplemental listing
application relating to the Aggregate Stock Consideration (the “Additional Listing Application”) and shall use its
commercially reasonable efforts to secure the Nasdaq approval of the Additional Listing Application, subject to official notice of issuance
and compliance with applicable Nasdaq listing standards.
(b)
Subject to compliance with the requirements set forth herein, and the Company being current in its filings under the Securities Exchange
Act of 1934 and applicable securities laws, following the earlier of (i) the date that is at least six months after the Closing Date
on which the Sellers have provided the representations required by this Section 6.6(b), (ii) the date that is at least 12 months
after the Closing Date, or (iii) the date on which the Parent Common Stock is sold pursuant to an effective registration statement under
the Securities Act, upon the written request of the Sellers, the Buyer Parties shall, at their own expense, promptly take or cause to
be taken all actions reasonably necessary to cause any restrictive legends or similar notations imposed under the Securities Act or other
applicable securities Laws to be removed from any certificate(s) or book-entry statements representing such Parent Common Stock held
by the Sellers. If the Sellers request removal of such legends or notations pursuant to subparagraph (i) above, the Sellers shall provide
a written representation in the form set forth in Schedule 6.6(b) of the Disclosure Schedules. If the Sellers request removal
of such legends or notations pursuant to subparagraph (ii) above, the Sellers shall represent to the Buyer that the Sellers are not,
and have not been during the preceding three months, an “affiliate” of the Parent within the meaning of Rule 144 under the
Securities Act. The Sellers agree to notify the Company promptly once it has sold all of the Parent Common Stock issued to it hereunder.
In all cases, the Buyer Parties’ actions required under this Section 6.6(b) shall include the timely delivery of any authorizations,
instructions, or legal opinions of the Buyer Parties’ counsel confirming that the conditions for removal of restrictive legends
under applicable securities laws have been satisfied as may be required by the Buyer Parties’ and shall be subject to the requirements
of the Company’s transfer agent to effect the removal of such legends or notations. Notwithstanding anything to the contrary herein,
nothing in this Section 6.6 shall require the Buyer Parties to take any action that would result in a violation of applicable
securities laws or be construed as a guarantee of the ability of any Seller to resell the Parent Common Stock.
Section
6.7 Lock-Up.
(a)
Subject to Section 6.7(b) and Section 6.7(c), with respect to each issuance of shares of Parent Common Stock by the Parent
to the Sellers pursuant to this Agreement, the Sellers shall not, directly or indirectly, for a period of six (6) months from the date
such shares are issued to the Sellers (each such period a “Lock-Up Period”) (i) sell, transfer, assign, hypothecate,
pledge or otherwise encumber such shares of Parent Common Stock, or any interest therein; (ii) enter into any swap, derivative, hedging
or similar arrangement (including any short sale, forward contract, option, collar, equity swap, total return swap or other transaction)
that is designed to, or reasonably could be expected to, hedge, reduce or eliminate the economic risk of ownership of such shares, in
whole or in part; (iii) deposit or maintain such shares of Parent Common Stock in any margin account, or otherwise use such shares as
collateral for any indebtedness or obligation, including under any margin loan, securities-based lending arrangement or similar credit
facility; or (iv) publicly announce or disclose any intention to engage in any of the foregoing transactions.
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(b)
Notwithstanding anything in Section 6.7(a) to the contrary, the Sellers may transfer Restricted Shares (i) to one or more Affiliates,
(ii) to any direct or indirect partners, members or equityholders of the Sellers (including for bona fide tax or estate planning purposes),
or (iii) pursuant to any court order or by operation of Law, provided that, in each case, each transferee agrees in writing to be bound
by the restrictions applicable to the Sellers set forth in Section 6.7(a) for the remainder of the applicable Lock-Up Period,
in each case subject to the exceptions set forth in this Section 6.7(b) and Section 6.7(c).
(c)
Notwithstanding the foregoing, the restrictions in Section 6.7(a) shall not apply to any sale, transfer or exchange made pursuant
to or in connection with any merger, tender offer, reclassification, recapitalization, consolidation, stock exchange or similar transaction
involving Parent Common Stock made to all holders of Parent Common Stock that would result in the holders of Parent Common Stock exchanging
their shares for cash, securities or other property.
Section
6.8 General Efforts. Upon the terms and subject to the conditions set forth in this Agreement (including this Section 6.8)
and subject to any different standard set forth herein with respect to any covenant or obligation, the Buyer Parties shall (and shall
cause their respective Subsidiaries to, if applicable) on the one hand, and the Sellers and the Company shall (and shall cause their
respective Affiliates to, if applicable) on the other hand, use their respective reasonable best efforts to (i) take (or cause to be
taken) all actions, (ii) do (or cause to be done) all things, and (iii) assist and cooperate with the other parties hereto in doing (or
causing to be done) all things, in each case as are necessary, proper or advisable to consummate and make effective, as promptly as reasonably
practicable, the transactions contemplated hereby. In furtherance of the foregoing, the Company and the Sellers shall, use their respective
commercially reasonable efforts to make and obtain at the earliest practicable date the notices, consents, approvals or waivers of any
contracts set forth on Schedule 6.8 of the Disclosure Schedules triggered by the consummation of the transactions contemplated
hereby.
Section
6.9 PCAOB Financial Statements
(a)
Prior to the date hereof, the Company engaged a PCAOB-registered independent public accounting firm (the “PCAOB Auditor”)
to audit the Company’s financial statements in accordance with the standards of the Public Company Accounting Oversight Board for
calendar years ending December 31, 2024 and December 31, 2025 (the “PCAOB Audited Financial Statements”).
(b)
As of the date hereof, the Company has delivered the PCAOB Audited Financial Statements to the Buyer.
(c)
The Buyer shall bear the reasonable and documented fees and expenses of the PCAOB Auditor incurred in connection with the preparation
of the PCAOB Audited Financial Statements (the “Audit Costs”).
55
Article
VII
TAX MATTERS
Section
7.1 Tax Returns.
(a)
The Sellers (at Sellers’ sole cost and expense) shall timely prepare and file or cause to be timely prepared and filed all Flow-Through
Tax Returns with respect to any taxable period ending on or prior to the date immediately preceding the Closing Date and that are first
due after the Closing Date (any such Tax Return a “Seller Prepared Tax Return”). Except as otherwise required by this
Agreement, all Seller Prepared Tax Returns shall be prepared or completed in a manner consistent with prior practice of the Company (to
the extent such prior practice is supportable at a “more likely than not” or greater level of comfort). At least thirty (30)
days prior to the date on which any such Seller Prepared Tax Return is due (taking into account any applicable extension), the Sellers
shall submit such Seller Prepared Tax Return to the Buyer for review and comment and shall consider in good faith any reasonable comments
timely received from the Buyer on such Seller Prepared Tax Return. For the avoidance of doubt, the Sellers shall timely pay all Taxes
shown as due and payable by them in respect of any such Seller Prepared Tax Return. For purposes of filing the applicable Seller Prepared
Tax Return pursuant to this Section 7.1(a), the Parties shall treat any payment of Transaction Expenses as allocable to the Pre-Closing
Tax Period and, such amounts shall be reported, to the extent they are actually deductible expenses, as determined on a “more likely
than not” basis, on the Seller Prepared Tax Return for the S Short Year pursuant to Proposed Treasury Regulations Section 1.1502-76(b)(5).
(b)
The Buyer shall prepare or cause to be prepared, and timely file or cause to be timely filed, all other Tax Returns for the Company for
any Pre-Closing Tax Period or Straddle Period the due date of which (taking into account any applicable extensions) is after the Closing
Date but only if not filed prior to the Closing that are not Seller Prepared Tax Returns (“Buyer Filed Tax Returns”).
Any Buyer Filed Tax Returns that reasonably would be expected to reduce the Purchase Price (as finally determined pursuant to Section
2.4) by more than a de minimis amount shall be prepared in a manner consistent with the past custom and practice of the Company to
the extent such past custom or practice is supported by a “more likely than not” (or higher) level of authority, and at least
30 days prior to the date on which such Buyer Filed Tax Return is due (taking into account any applicable extensions), the Buyer shall
submit such Buyer Filed Tax Return to the Sellers for review and comment and shall consider in good faith any reasonable comments timely
received from the Sellers on such Buyer Filed Tax Return.
Section
7.2 Books and Records; Cooperation. Except as otherwise provided in this Agreement and to the extent reasonably requested by the
other party, the Buyer and the Sellers shall, and shall cause their respective Representatives and Affiliates to use commercially reasonable
efforts to cooperate in connection with the filing of Tax Returns or any Tax audit or other Tax examination by any Governmental Authority,
in each case, with respect to the Company; provided, however, that nothing in this Agreement shall require the Buyer to provide the Sellers
with any consolidated, combined, unitary or other Tax Return (other than as contemplated by Section 7.1(b)).
Section 7.3 Transfer
Taxes. The Buyer and the Sellers shall each be responsible for fifty percent (50%) of any real property transfer Tax, documentary
or stamp Tax, stock transfer Tax, recording charges, or other similar Tax imposed on the Company as a result of the transactions contemplated
by this Agreement (collectively, “Transfer Taxes”); provided that, Transfer Taxes shall not include Income Taxes,
Taxes imposed on or with reference to gross receipts, or any ad valorem or other property taxes arising with respect to vehicles or other
assets subject to certificate of title laws. The parties hereto agree to use commercially reasonable efforts to cooperate in the timely
filing of any Tax Returns with respect to the Transfer Taxes, including by promptly supplying to the party required by applicable Law
to file any such Tax Return any information in its possession that is reasonably necessary to complete such Tax Return and joining, or
causing its respective Representative and Affiliates to join, in the execution of such Tax Return.
56
Section 7.4 Straddle
Period Allocation. To the extent it is necessary for purposes of this Agreement to determine the allocation of Taxes among a Straddle
Period, (a) the amount of any Taxes based on or measured by income, receipts, payroll or sales of the Company for the Pre-Closing Tax
Period shall be determined based on an interim closing of the books as of the end of the date immediately preceding the Closing Date
(and for such purpose, the taxable period of any partnership or other pass through entity or “controlled foreign corporation”
(within the meaning of Section 957(a) of the Code) in which the Company holds a beneficial interest shall be deemed to terminate at such
time) and (b) the amount of other Taxes of the Company not described in clause (a) for the portion of a Straddle Period that relates
to the Pre-Closing Tax Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction, the
numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator of which is the number
of days in such Straddle Period. For the avoidance of doubt, for purposes of this Agreement (including for purposes of calculating Net
Working Capital), a Transaction Tax Deduction shall be treated as deductible in the Pre-Closing Tax Period to the extent such Transaction
Tax Deduction is deductible at a “more likely than not” (or higher) level of authority.
Section 7.5 Tax
Proceedings. To the extent that this Section 7.5 conflicts with Article VIII, this Section 7.5 shall control.
The Sellers (at their sole cost and expense) shall have the right to control all Actions in respect of a Pre-Closing Tax Period or any
Seller Prepared Tax Return (excluding any Straddle Period) (a “Tax Contest”). The Sellers shall not settle or compromise
any such Tax Contest without the prior written consent of the Buyer (not to be unreasonably withheld, conditioned or delayed). Each Party
shall use commercially reasonable efforts to provide the other Party with notice of any written inquiries, audits, examinations or proposed
adjustments by a Taxing Authority that relate to any such Tax Contest within fifteen (15) Business Days of the receipt of such notice.
The Sellers shall keep the Buyer reasonably informed of the details and status of such matter (including providing the Buyer with copies
of all material written correspondence regarding such matter). The Buyer shall be permitted to fully participate in any such Tax Contest,
including attending any meetings or conferences and having an opportunity to comment on any written materials prepared in connection
with any such Tax Contest. The Sellers shall incorporate any reasonable comments made by the Buyer with respect to any such written materials.
The Sellers shall conduct such Tax Contest diligently and in good faith. The failure or delay of the Buyer in complying with this Section
7.5 shall not reduce or affect the obligations of the Sellers under this Agreement. The Buyer shall control all other Actions relating
to Taxes of the Company that are not Tax Contests.
Section 7.6 Tax
Accounting Method Change. The Parties acknowledge and agree that:
(a)
The Company shall make an accounting method change by filing IRS Form 3115 to change its overall method of accounting from the cash receipts
and disbursements method to an applicable accrual method for U.S. federal and applicable state income Tax purposes, effective for and
in respect of the S Short Year (as defined below) (the “Tax Accounting Method Change”).
(b)
The transactions contemplated by this Agreement qualify as an “eligible acquisition transaction,” as defined in Section 7.03(3)(d)(iii)
of IRS Revenue Procedure 2015-13, that occurs during the taxable year following the “year of change” (i.e. the S Short Year
(as defined below)) in respect of the Tax Accounting Method Change. The Company shall elect a one-year Section 481(a) adjustment period
for all positive Section 481(a) adjustments (the “Section 481(a) Adjustments”) for the S Short Year (the “year
of change”) resulting from the Tax Accounting Method Change by filing an “eligible acquisition transaction election statement”
pursuant to Section 7.03(3)(d)(ii) of IRS Revenue Procedure 2015-13, along with IRS Form 3115 in respect of the S Short Year (such election
and Tax Return filings, the “One-Year 481(a) Adjustment for the S Short Year”). The Parties shall take all actions
and file all Tax Returns necessary to properly effectuate the One-Year 481(a) Adjustment for the S Short Year.
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(c)
For avoidance of doubt, the Parties hereto acknowledge and agree that Sellers shall have no liability or obligation to pay all or any
portion of any Cash-to-Accrual Taxes, all of which shall be the sole responsibility of Company and Buyer.
Section
7.7 S
Corporation Termination.
The
Parties acknowledge and agree that the taxable year in which the S corporation status of the Company is terminated will be an “S
Termination Year” (as such term is defined in Section 1362(e)(4) of the Code) for tax purposes. As defined in Section 1362(e)(1)(A)
of the Code, the S Short Year shall be that portion of the Company’s S Termination Year ending on the day immediately preceding
the Closing Date (the “S Short Year”) and the S Short Year will end on the day immediately preceding the Closing Date in
accordance with Treasury Regulations Section 1.1362-3(a) and Treasury Regulations 1.1502-76(b)(1)(ii)(2). In accordance with Treasury
Regulations Section 1.1362-3(a) and Treasury Regulations Section 1.1502-76(b)(1)(ii)(2), the Company will join the U.S. consolidated
income tax group that includes the Buyer on the Closing Date.
Article
VIII
INDEMNIFICATION
Section 8.1 Sellers’
Indemnification. The Sellers shall, jointly and severally, in accordance with this Article VIII, indemnify, defend, protect
and hold harmless the Buyer and its assigns, successors and Affiliates and their respective Representatives (collectively, the “Buyer
Indemnitees”) from, against and in respect of all Actions asserted against, and all Losses asserted against or suffered, sustained,
incurred or paid by, any Buyer Indemnitee (collectively, “Buyer Losses”) in connection with or arising out of:
(a)
the breach or inaccuracy of any representation or warranty of any Seller or the Company set forth in this Agreement or any Transaction
Document (in each case, without regard to any qualification or limitation as to materiality, whether by reference to “in any material
respect,” “Material Adverse Effect,” or any other use of the term “material”);
(b)
the nonfulfillment of any covenant or agreement in this Agreement or any Transaction Document on the part of either of the Sellers or
the Company;
(c)
any Transaction Expenses or Indebtedness incurred prior to Closing but not deducted in the calculation of the Purchase Price payments
made by the Buyer;
(d)
any failure to properly classify the employees of the Company as non-exempt under any federal, state, local or non-US laws regarding
payment and amount of wages, hours of work and overtime;
(e)
any Indemnified Taxes; or
(f)
Fraud by the Sellers or the Company.
Section 8.2 Buyer
Parties Indemnification. The Buyer Parties shall, in accordance with this Article VIII, indemnify, defend, protect and hold
harmless the Sellers and its respective assigns, successors and Affiliates and their respective Representatives (collectively, the “Seller
Indemnitees”) from, against and in respect of all Actions asserted against, and all Losses asserted against or suffered, sustained,
incurred or paid by, any Seller Indemnitee (collectively, “Seller Losses”) in connection with or arising out of:
(a)
the breach or inaccuracy of any representation or warranty of the Buyer Parties set forth in this Agreement or any Transaction Document
that the Buyer Parties are party to (in each case, without regard to any qualification or limitation as to materiality, whether by reference
to “in any material respect,” “Material Adverse Effect,” or any other use of the term “material”);
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(b)
the nonfulfillment of any covenant or agreement in this Agreement or any Transaction Document that the Buyer Parties are party to on
the part of the Buyer Parties; or
(c)
Fraud by the Buyer Parties.
Section
8.3 Limitations
(a)
The period during which a claim for indemnification may be asserted hereunder (the “Claims Period”) with respect to:
(i)
a breach or inaccuracy of any Fundamental Representation or any claim for indemnification under Section 8.1(c), Section 8.1(e)
or Section 8.1(f) shall begin on the date hereof and thereafter shall be indefinite;
(ii)
a breach or inaccuracy of any Special Representation shall begin on the date hereof and terminate sixty (60) days after the end of statute
of limitations applicable thereto;
(iii)
a breach or inaccuracy of any representation or warranty of the Sellers, the Company or the Buyer Parties (other than Fundamental Representations
and Special Representations) shall begin on the date hereof and terminate eighteen (18) months after the Closing Date;
(iv)
a breach of any covenant to be performed on or prior to the Closing shall begin on the date hereof and terminate eighteen (18) months
after the Closing Date; and
(v)
a breach of any covenant to be performed after the Closing shall begin on the date hereof and terminate upon being fully performed.
(b)
Notwithstanding anything herein to the contrary:
(i)
the Sellers (as a group and in the aggregate) shall not have any indemnification obligation under Section 8.1(a) unless and until
the aggregate amount of Buyer Losses exceeds Fifty Thousand Dollars ($50,000) (the “Basket”), whereupon the Sellers
shall indemnify the Buyer Indemnitees for all Buyer Losses (including the Basket); provided, however, that this Section 8.3(b)
shall not apply to Buyer Losses arising out of any breach or inaccuracy of any Fundamental Representation or Special Representation;
(ii)
the maximum amount of Buyer Losses for which the Sellers shall be obligated to indemnify Buyer Indemnitees pursuant to Section 8.1(a):
(A)
for claims arising out of breaches or inaccuracies of Fundamental Representations and Special Representations shall be the amount of
the Purchase Price; and
(B)
for claims arising out of breaches or inaccuracies of representations and warranties of the Sellers or the Company in this Agreement
(other than Fundamental Representations and Special Representations) shall be an amount equal to fifteen (15%) of the Purchase Price
(the “General Cap”).
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(iii)
the maximum amount of Seller Losses for which the Buyer Parties shall be obligated to indemnify Seller Indemnitees pursuant to Section
8.2(a) shall be the General Cap.
(c)
Notwithstanding Section 8.3(a), if, prior to the close of business on the last day of the Claims Period, an Indemnifying Party
shall have been properly notified of a good faith claim for indemnity hereunder and such claim shall not have been Finally Resolved at
such date, such claim shall continue to survive and shall remain a basis for indemnity hereunder until such claim is Finally Resolved
in accordance herewith. All representations and warranties herein shall survive the Closing until the last day of the Claims Period applicable
thereto and, with respect to claims that remain unresolved as of the last day of the Claims Period, until such unresolved claims have
been Finally Resolved.
(d)
Each Person entitled to indemnification under this Article VIII (an “Indemnified Party”) shall exercise, and
cause its Affiliates to exercise, commercially reasonable efforts to recover any amounts reasonably available to offset any Losses from
any applicable insurer or third party indemnitor. Losses shall be calculated net of actual recoveries under existing insurance policies
(net of any actual collection costs and reserves, deductibles, premium adjustments and retrospectively rated premiums).
Section 8.4 Notice
of Claims. An Indemnified Party shall notify the Persons obligated to provide such indemnification under this Article VIII
(the “Indemnifying Party”) in writing promptly after becoming aware of any Action or Loss which an Indemnified Party
shall have determined has given rise to a claim for indemnification under this Article VIII. Such written notice (a “Claim
Notice”) shall include an estimate of the Loss, if known, the method of computation thereof and a reference to the specific
provision(s) of this Agreement in respect of which indemnification is sought. If the Indemnifying Party notifies the Indemnified Party
that it does not dispute the claim or the estimated amount of the Loss described in the Claim Notice, or fails to notify the Indemnified
Party within thirty (30) days after receipt of such Claim Notice whether the Indemnifying Party disputes the claim or the estimated amount
of the Loss described in such Claim Notice, the estimated Loss in the amount specified in the Indemnified Party’s Claim Notice
will be conclusively deemed a liability of the Indemnifying Party, and the Indemnifying Party shall pay the amount of such Loss to the
Indemnified Party. If the Indemnifying Party has timely disputed its liability with respect to such claim or the estimated amount of
the Loss, the dispute shall be resolved, and the amount of the Loss payable by the Indemnifying Party to the Indemnified Party shall
be determined, in accordance with Section 9.7. This Section 8.4 does not apply to Third Party Actions.
Section
8.5 Third Party Actions.
(a)
If any third Person shall commence an Action against any Indemnified Party (a “Third Party Action”) with respect to
any matter which may give rise to a claim for indemnification under this Article VIII, then the Indemnified Party shall notify
the Indemnifying Party in writing promptly after becoming aware of such Third Party Action, describing in reasonable detail the Third
Party Action (such notice being hereinafter called a “Third Party Action Notice”), which notice shall include a reference
to the specific provision(s) of this Agreement in respect of which indemnification is sought. No delay on the part of any Indemnified
Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from its obligations hereunder, except to the extent the
Indemnifying Party is prejudiced by such failure to give notice. The Indemnifying Party will have thirty (30) days from the receipt of
such Third Party Action Notice (the “Response Period”) to determine whether or not (i) the Indemnifying Party will
defend against such Third Party Action; and/or (ii) the Indemnifying Party is disputing the claim for indemnity hereunder.
(b)
If the Indemnifying Party (i) does not respond to the Third Party Action Notice by 5:00 p.m., Eastern Time on the last day of the Response
Period, or (ii) responds to the Third Party Action Notice within the Response Period and does not affirmatively state that the Indemnifying
Party will defend against such Third Party Action, then (A) the Indemnified Party shall have the right to defend against such Third Party
Action; and (B) the Indemnifying Party shall promptly pay all Losses resulting from such Third Party Action in accordance with Section
8.5(e) below; provided that in the case of clause (ii) of this sentence, any right of the Indemnified Party to recover from the Indemnifying
Party shall depend on the resolution of the dispute as to the right of indemnity in accordance with Section 9.7.
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(c)
If the Indemnifying Party disputes the right to indemnity, but nevertheless elects to defend against any Third Party Action, any right
of the Indemnified Party to recover from the Indemnifying Party shall depend on the resolution of the dispute as to the right of indemnity
in accordance with Section 9.7.
(d)
Notwithstanding anything herein to the contrary, if the Indemnifying Party notifies the Indemnified Party that it will defend against
or settle any Third Party Action:
(i)
such defense or settlement shall be at the sole cost and expense of the Indemnifying Party, except for costs and expenses of the Indemnified
Party’s counsel, if any, pursuant to Section 8.5(d)(v);
(ii)
the Indemnifying Party and its counsel shall conduct such defense or settlement at all times in good faith;
(iii)
the Indemnifying Party and its counsel shall (A) at the reasonable request of the Indemnified Party, provide periodic updates to the
Indemnified Party in order to keep the Indemnified Party informed as to its conduct of such defense or settlement, and (B) not compromise
or settle such Third Party Action without the prior written consent of the Indemnified Party, unless the Indemnified Party has affirmatively
acknowledged its obligation to indemnify the Indemnified Party hereunder, and such settlement or compromise does not subject the Indemnified
Party to any monetary or criminal liability, injunctive relief or other restriction, and includes a complete, unconditional release of
the Indemnified Party from all liability with respect to such Third Party Action;
(iv)
the Indemnified Party shall reasonably cooperate with the Indemnifying Party, including making available to the Indemnifying Party, all
relevant witnesses and pertinent documents and information and appropriate personnel;
(v)
the Indemnified Party may employ its own counsel and participate in such defense or settlement at the Indemnified Party’s sole
cost and expense, but the control of such defense and the settlement shall rest with the Indemnifying Party;
(vi)
notwithstanding the Indemnifying Party’s election to defend against or settle the Third Party Action, the Indemnified Party may,
upon written notice to the Indemnifying Party, elect to employ its own counsel at the Indemnifying Party’s expense if (A) the Indemnifying
Party is also a Person against whom the Third Party Action is made and the Indemnified Party has been advised by counsel that (x) representation
of both parties by the same counsel would be inappropriate under applicable standards of professional conduct or (y) the Indemnified
Party has available to it one or more defenses or counterclaims that are inconsistent with, different from, or in addition to one or
more of those that may be available to the Indemnifying Party with respect to such Third Party Action; (B) the Indemnifying Party shall
not in fact have employed counsel reasonably satisfactory to the Indemnified Party for the defense or settlement of such Third Party
Action; or, (C) in the case where the Indemnified Party is a Buyer Indemnitee, the third Person in such Third Party Action is a customer,
distributor or supplier of a Buyer Party or any of its Affiliates; provided, that the assumption of control of the defense or settlement
of a Third Party Action by the Indemnified Party pursuant to this Section 8.5(d)(vi) shall not relieve the Indemnifying Party
of its obligation to indemnify and hold the Indemnified Party harmless; and
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(vii)
in no event shall the Indemnified Party consent to the entry of any judgment or enter into any settlement with respect to such Third
Party Action without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).
(e)
The Losses resulting from the settlement or the final, non-appealable adjudication of a Third Party Action shall be conclusively deemed
a liability of the Indemnifying Party to the Indemnified Party (i) if the Indemnifying Party did not respond to the Third Party Action
Notice by 5:00 p.m. Eastern Time on the last day of the Response Period; (ii) if the Indemnifying Party did not affirmatively dispute,
in writing, the Indemnified Party’s right to indemnification; or (iii) in the event the Indemnifying Party did affirmatively dispute,
in writing, the Indemnified Party’s right to indemnification, to the extent the dispute regarding the Indemnified Party’s
right to indemnification is resolved, in accordance with Section 9.7, in the Indemnified Party’s favor.
Section
8.6 Payments; Escrow Funds.
(a)
Subject to Section 8.6(b), once a Loss is agreed to by the Indemnifying Party or finally adjudicated to be payable pursuant to
this Article VIII, the Indemnifying Party shall satisfy its obligations within five (5) Business Days of such final, non-appealable
adjudication by wire transfer of immediately available funds.
(b)
Any Buyer Losses payable to a Buyer Indemnitee pursuant to this Article VIII (other than in respect of Section 8.1(b) through
Section 8.1(f)) shall be satisfied: (i) first, from the Escrow Fund; and (ii) to the extent the amount of Buyer Losses exceeds
the amounts available to the Buyer Indemnitee in the Escrow Fund, from the Sellers, severally and jointly. Any Buyer Losses payable to
a Buyer Indemnitee pursuant to Section 8.1(b) through Section 8.1(f) may, at Buyer Indemnitee’s election, be satisfied
from the Escrow Fund or the Sellers, severally and jointly. If Buyer Indemnitee becomes entitled to any distribution of all or any portion
of the Escrow Fund pursuant to this Article VIII, the Buyer and the Sellers shall deliver joint written instructions to the Escrow
Agent instructing the Escrow Agent to pay Buyer Indemnitee the amounts to be paid from the Escrow Fund to Buyer in accordance with this
Agreement.
(c)
Any Buyer Losses that are to be satisfied by the Sellers may, at the Buyer’s election, be satisfied either (i) by the Sellers in
cash or, (ii) subject to Section 8.7 below, by withholding and deducting from any shares of Parent Common Stock that is or may
be owed to the Sellers by the Buyer Parties pursuant to Section 2.2(d) through Section 2.2(i). The amount of shares of
Parent Common Stock to be withheld shall be determined based on the applicable Ten-Day VWAP to be used for the issuance of such shares
of Parent Common Stock to the Sellers.
(d)
Upon the termination of the Escrow Fund pursuant to the terms of the Escrow Agreement, the Escrow Agent shall pay any amounts remaining
in the Escrow Fund to the Sellers as set forth in the Escrow Agreement in accordance with their Pro Rata Portion.
Section 8.7 Right
of Offset. In addition to Section 2.4(i) and Section 8.6(c) and any rights of setoff or other similar rights that the
Buyer Parties or any of the other Buyer Indemnitees may have at common law or otherwise, the Buyer Parties shall have the right to withhold
and deduct any sum that is or may be owed to any Buyer Indemnitee by the Sellers under this Article VIII from any amount otherwise
payable or issuable by any Buyer Indemnitee to the Sellers under any Transaction Document (other than the Boyd Employment Agreement)
or otherwise in connection with any of the transactions contemplated by this Agreement and the other Transaction Documents; provided,
however, to the extent any amounts deducted and withheld are later determined by a final, non-appealable order of a court of competent
jurisdiction to have been wrongly offset, deducted or withheld, then, in addition to the payment of all such amounts wrongly offset or
withheld, Sellers shall be entitled to interest in the amount of ten percent (10.0%) per annum on such wrongfully offset or withheld
amounts accruing from the date such amounts were due and payable to Sellers until the date such amounts were actually paid.
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Section 8.8 Effect
of Investigation and Notices. The Buyer Parties have entered into this Agreement in express reliance on the representations
and warranties of the Sellers herein. The rights of Buyer Indemnitees to indemnification hereunder shall not be impacted or limited by
(a) any knowledge that the Buyer Parties may or should have acquired prior to the Closing or (b) any investigation or diligence, including
environmental diligence, conducted by the Buyer Parties.
Section 8.9 Tax
Treatment of Indemnity Payments. All indemnification payments made hereunder shall be treated as an adjustment to the Purchase Price
for Tax purposes, unless otherwise required by Law.
Section 8.10 Exclusive
Remedy. Excluding Fraud and claims seeking equitable remedies, the indemnification provisions in this Article VIII constitute
the sole and exclusive recourse of any Indemnified Party against any Indemnifying Party for any Losses or Actions arising under or related
to this Agreement. Notwithstanding the foregoing, nothing in this Article VIII is intended to limit the rights or remedies of
the Parties with respect to any intentional or willful misrepresentation of material facts which constitutes Fraud.
Article
IX
GENERAL PROVISIONS
Section 9.1 Fees
and Expenses. Except as otherwise provided herein, all fees and expenses incurred in connection with or related to this Agreement
and the other Transaction Documents and the transactions contemplated hereby and thereby shall be paid by the party incurring such fees
or expenses, whether or not such transactions are consummated. In the event of termination of this Agreement, the obligation of each
party to pay its own expenses will be subject to any rights of such party arising from Fraud or a Willful Breach by the other party.
Section 9.2 Amendment
and Modification; Waiver; Extension. This Agreement may not be amended, modified or supplemented in any manner, whether by course
of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto, signed on behalf of each
party. The Sellers, on the one hand and on behalf of itself and the Company, and the Buyer, on the other hand and on behalf of itself
and the Parent, may (a) extend the time for performance of any of the obligations or other acts of the other party contained herein,
(b) waive any inaccuracies in the representations and warranties of the other party contained herein or in any document, certificate
or writing delivered by such party pursuant hereto or (c) waive compliance by the other party with any of the agreements or conditions
contained herein. Any agreement on the part of any party to any such extension or waiver shall be valid only if set forth in a written
agreement signed on behalf of such party. No failure or delay of any party in exercising any right or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps
to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other
right or power. Any agreement on the part of any party to any such waiver shall be valid only if set forth in a written instrument executed
and delivered by a duly authorized officer on behalf of such party.
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Section 9.3 Notices.
All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered
personally, or if by e-mail, without the sender having received notice of failure to deliver such email, (b) on the first Business Day
following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier or (c) on the earlier of confirmed
receipt or the fifth Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested,
postage prepaid. All notices hereunder shall be delivered to the addresses set forth below, or pursuant to such other instructions as
may be designated in writing by the party to receive such notice:
(a)
if to the Sellers or prior to the Closing, the Company, to:
Onium
Capital, LLC
Attn: Roy Boyd and Angela Boyd
2680 Drayton Hall Drive
Buford, GA 30519
with
a copy (which shall not constitute notice) to:
Andersen,
Tate & Carr, P.C.
1960 Satellite Boulevard, Suite 4000
Duluth, GA 30097
Attention: R. Bradley Carr, Esq.
Email: bcarr@atclawfirm.com
(b)
if to a Buyer Party or after the Closing, the Company, to:
NANO
Nuclear Energy Inc.
10 Times Square
30th Floor
New York, NY 10018
Attention: Oscar Leandro
with
a copy (which shall not constitute notice) to:
Pillsbury
Winthrop Shaw Pittman LLP
1200 Seventeenth Street NW
Washington, DC 20036
Attention: Elina Teplinsky
E-mail: Elina.teplinsky@pillsburylaw.com
Section 9.4 Interpretation.
When a reference is made in this Agreement to a Section, Article, Exhibit or Schedule such reference shall be to a Section, Article,
Exhibit or Schedule of this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement or in
any Exhibit or Schedule are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation
of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Any
capitalized terms used in any Exhibit or Schedule but not otherwise defined therein shall have the meaning as defined in this Agreement.
All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set
forth herein. The word “including” and words of similar import when used in this Agreement will mean “including, without
limitation,” unless otherwise specified. The words “hereof,” “herein” and “hereunder” and words
of similar import when used in this Agreement shall refer to the Agreement as a whole and not to any particular provision in this Agreement.
The term “or” is not exclusive. The word “will” shall be construed to have the same meaning and effect as the
word “shall.” The words “to the extent” mean the degree to which a subject or other thing extends and shall not
simply mean “if”. References to days mean calendar days unless otherwise specified. The meaning assigned to each term defined
herein shall be equally applicable to both the singular and the plural forms of such term and vice versa. Whenever the last day for the
exercise of any right or the discharge of any duty under this Agreement falls on a day other than a Business Day, the party having such
right or duty shall have until the next Business Day to exercise such right or discharge such duty. References to any contract (including
this Agreement) or any Organizational Document refer to such contract or Organizational Document as amended, modified, supplemented or
replaced from time to time prior to the date hereof but only to the extent such amendment, modification, supplement or replacement has
been made available to the Buyer. References to any “copy” of any contract or other document refer to a true and complete
copy thereof. Any reference to any Law is a reference to the Law as amended, modified, supplemented or replaced from time to time (and,
in the case of statutes, includes any rules and regulations promulgated under the statute) and any reference to any Section of any statute,
rule or regulation includes any successor to the Section. References to “ordinary course of business” when used in reference
to the Company shall be deemed to refer to any action taken, or omitted to be taken, in the ordinary and usual course of business of
the Company, consistent with past practice. The terms “made available,” “provided,” “furnished” and
words of similar import shall mean, in reference to information, documents or other items by the Company, the posting by or on behalf
of the Company to the virtual data room “Secured Transportations Services LLC” hosted on OneHub or otherwise provided
directly to the Buyer at least two (2) Business Days prior to the execution of this Agreement.
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Section 9.5 Entire
Agreement. This Agreement (including the Exhibits and Schedules hereto), the Transaction Documents and the Confidentiality Agreement
constitute the entire agreement, and supersede all prior written agreements, arrangements, communications and understandings and all
prior and contemporaneous oral agreements, arrangements, communications and understandings among the parties with respect to the subject
matter hereof and thereof. This Agreement shall not be deemed to contain or imply any restriction, covenant, representation, warranty,
agreement or undertaking of any party with respect to the transactions contemplated hereby other than those expressly set forth herein
or in any document required to be delivered hereunder, including any implied covenants regarding noncompetition or nonsolicitation, and
none shall be deemed to exist or be inferred with respect to the subject matter hereof. Notwithstanding any oral agreement or course
of conduct of the parties or their Representatives to the contrary, no party to this Agreement shall be under any legal obligation to
enter into or complete the transactions contemplated hereby unless and until this Agreement shall have been executed and delivered by
each of the parties.
Section 9.6 Parties
in Interest. This Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any Person other than the parties and their respective successors and permitted
assigns any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, except with respect
to the provisions of Section 6.4 (Directors’ and Officers’ Indemnification) and Section 9.16 (Release) which
shall inure to the benefit of the Persons benefiting therefrom who are intended to be third party beneficiaries thereof.
Section 9.7 Governing
Law; Jurisdiction; Venue; Service of Process; Waiver of Jury Trial.
(a)
This Agreement and any claims or causes of action arising out of or relating to this Agreement, the negotiation, execution or performance
of this Agreement, or the transactions contemplated hereby (whether in contract, in tort, under statute or otherwise) shall be governed
by, and interpreted, construed and enforced in accordance with, the internal Laws of the State of Delaware, without regard to the Laws
of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of Delaware.
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(b)
Each of the Sellers, the Company and the Buyer, by its execution hereof, (i) hereby irrevocably submits to the exclusive jurisdiction
of the state or federal courts of the State of Delaware located in New Castle, Delaware (the “Delaware Courts”) for
the purpose of any lawsuit between or among the parties arising in whole or in part under or in connection with this Agreement or the
Transaction Documents, (ii) hereby waives and agrees not to assert, by way of motion, as a defense or otherwise, in any such lawsuit,
any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from
attachment or execution, that any such lawsuit brought in one of the above-named courts should be dismissed on grounds of forum non conveniens,
should be transferred or removed to any court other than one of the above-named courts, or should be stayed by reason of the pendency
of some other proceeding in any court other than one of the above-named courts, or that this Agreement or any other Transaction Document
or the subject matter hereof or thereof may not be enforced in or by such court, and (iii) hereby agrees not to commence any such lawsuit
other than before one of the above-named courts. Notwithstanding the previous sentence, a party may commence any lawsuit in a court other
than the above-named courts solely for the purpose of enforcing an order or judgment issued by one of the above-named courts.
(c)
The Sellers, the Company and the Buyer hereby (i) consent to service of process in any lawsuit between or among the parties arising in
whole or in part under or in connection with this Agreement or any other Transaction Document in any manner permitted by applicable Law,
(ii) agree that service of process made in accordance with clause (i) or made by registered or certified mail, return receipt requested,
at its address specified pursuant to Section 9.3, will constitute good and valid service of process in any such lawsuit, and (iii)
waive and agree not to assert (by way of motion, as a defense, or otherwise) in any such lawsuit any claim that service of process made
in accordance with clause (i) or (ii) does not constitute good and valid service of process.
(d)
EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING,
OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE ANCILLARY AGREEMENTS
EXECUTED AND DELIVERED IN CONNECTION HEREWITH, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 9.8 Disclosure
Generally. Notwithstanding anything to the contrary contained in the Disclosure Schedules or in this Agreement, the information and
disclosures contained in any Disclosure Schedule shall be deemed to be disclosed and incorporated by reference in any other Disclosure
Schedule as though fully set forth in such Disclosure Schedule for which applicability of such information and disclosure is reasonably
apparent on its face. The fact that any item of information is disclosed in any Disclosure Schedule shall not be construed to mean that
such information is required to be disclosed by this Agreement. Such information and the dollar thresholds set forth herein shall not
be used as a basis for interpreting the terms “material” or “Material Adverse Effect” or other similar terms
in this Agreement.
Section 9.9 Assignment;
Successors. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated,
in whole or in part, by operation of law or otherwise, by any party without the prior written consent of the other parties, and any such
assignment without such prior written consent shall be null and void; provided, that the Buyer may assign its right to acquire the Interests
and its obligation to pay the Aggregate Cash Closing Consideration to a Subsidiary of the Buyer without the consent of the Sellers; provided
further, that no assignment shall limit or relieve the Buyer’s respective obligations hereunder, as applicable. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective
successors and assigns. Any attempted assignment in violation of this Section 9.9 shall be null and void.
66
Section 9.10 Enforcement.
The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached and that money damages or other legal remedies would not be an adequate
remedy for any such nonperformance or breach. Accordingly, each of the parties shall be entitled to specific performance of the terms
hereof, including an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in the Court of Chancery of the State of Delaware; provided, that if jurisdiction is not then available in the Court
of Chancery of the State of Delaware, then in any state or federal court located in the State of Delaware, this being in addition to
any other remedy to which such party is entitled at law or in equity. Each of the parties hereby further waives (a) any defense in any
action for specific performance that a remedy at law would be adequate and (b) any requirement under any Law to post security as a prerequisite
to obtaining equitable relief.
Section 9.11 Currency.
All references to “dollars” or “$” or “US$” in this Agreement refer to United States dollars, which
is the currency used for all purposes in this Agreement.
Section 9.12 Severability.
Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective
and valid under applicable Law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained
herein.
Section 9.13 Counterparts.
This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same instrument and shall become
effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.
Section
9.14 Electronic
Signature
.
This Agreement may be executed electronically (including by means of .pdf or similar graphic reproduction format or by means of digital
signature software, e.g. DocuSign or Adobe Sign) and delivered by e-mail or other similar means of electronic transmission, and any electronic
signature shall constitute an original for all purposes.
Section 9.15 No
Presumption Against Drafting Party. Each of the Buyer Parties, the Sellers and the Company acknowledges that each party to this Agreement
has been represented by legal counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly,
any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting
party has no application and is expressly waived.
Section 9.16 Release.
Effective as of the Closing, the Sellers, on behalf of themselves and their Related Parties, successors and permitted assigns, hereby
unconditionally and irrevocably and forever release and discharge the Parent, the Buyer Parties, the Company and their respective Related
Parties (each, a “Buyer Released Party”), of and from, and hereby unconditionally and irrevocably waive (to the fullest
extent permitted by applicable Law, including by contractually shortening the applicable statute of limitations), any and all covenants,
liabilities, judgments, accounts, and other Actions of any kind or character whatsoever, known or unknown, suspected or unsuspected,
in contract, direct or indirect, at law or in equity that such party ever had, now has or ever may have or claim to have against any
Buyer Released Party, for or by reason of any matter, circumstance, event, action, inaction, omission, cause or thing whatsoever arising
on or prior to the Closing and arising by virtue of, or in any matter related to, the Sellers’ ownership of Interests in the Company,
the transactions contemplated by this Agreement or the other Transaction Documents or any actions or inactions with respect to the Company.
Notwithstanding anything herein to the contrary, nothing in this Section 9.16 shall release, waive, discharge or otherwise affect
(i) the rights or obligations of any Seller under this Agreement or any Transaction Document, (ii) any claims of Fraud, (iii) the rights
or obligations of any Seller with respect to indemnification, exculpation or expense advancement obligations owed to any current or former,
director, manager, officer, employee or agent under the Organizational Documents of the Company or as required by applicable Laws, in
each case, as set forth in Section 6.4 of this Agreement, (iv) any rights under any directors and officers insurance policies
benefitting pre-Closing directors and officers of the Company, including the D&O Insurance policy obtained by the Company pursuant
to Section 6.4(b) of this Agreement, and (v) payments of compensation and benefits in connection with any employee’s employment
with the Company in the ordinary course of business consistent with past practice. The Sellers, on behalf of themselves and its current
and future Related Parties, expressly waive all rights afforded by any statute which limits the effect of a release with respect to unknown
claims. The Sellers, on behalf of themselves and their current and future Related Parties, understand the significance of this release
of unknown claims and waiver of statutory protection against a release, on behalf of itself and its current and future Related Parties,
of unknown claims, and acknowledges and agrees that this waiver is an essential and material term of this Agreement. The Sellers, on
behalf of themselves and their current and future Related Parties, acknowledge that the Buyer Parties will be relying on the waiver and
release provided in this Section 9.16 in connection with entering into this Agreement and that this Section 9.16 is intended
for the benefit of, and to grant third party beneficiary rights to, each Buyer Released Party to enforce this Section 9.16.
67
Section
9.17 Parent Guarantee.
(a)
The Parent hereby absolutely, unconditionally and irrevocably guarantees, as a primary obligor and not merely as a surety, to the Sellers
the due, prompt and full payment and performance by the Buyer of all of its obligations, liabilities, covenants and agreements under
this Agreement and the other Transaction Documents, including the payment of the Aggregate Cash Closing Consideration (collectively,
the “Guaranteed Obligations”).
(b)
The Parent acknowledges and agrees that the guarantee set forth in this Section 9.17 is a guarantee of payment and performance
and not of collection, and the Parent hereby waives any right to require the Sellers to proceed against the Buyer or any other Person,
or to pursue any other remedy or enforce any other right, prior to seeking performance and payment from the Parent.
Section
9.18 Privilege; Counsel.
(a)
Each of the parties hereto acknowledges and agrees, on its own behalf and on behalf of its directors, managers, members, shareholders,
partners, officers, employees and Affiliates, that:
(i)
Andersen, Tate & Carr, P.C. (“ATC”) has acted as counsel to the Sellers and their Affiliates (not including the
Company) (individually and collectively, the “Seller Group”) and the Company in connection with the negotiation, preparation,
execution and delivery of this Agreement and the Transaction Documents and the consummation of the transactions contemplated hereby and
thereby. Buyer agrees, and shall cause the Company to agree, that, following consummation of the transactions contemplated hereby, such
representation and any prior representation of the Company by ATC (or any successor) shall not preclude ATC from serving as counsel to
the Seller Group or any director, manager, member, shareholder, partner, officer or employee of the Seller Group, in connection with
any litigation, dispute, claim or obligation arising out of or relating to this Agreement or the Transaction Documents and the transactions
contemplated hereby and thereby (a “Future Representation”).
(ii)
Buyer Parties shall not, and shall cause the Company not to, seek or have ATC disqualified from any Future Representation based on the
prior representation of the Company by ATC. Each of the parties hereto hereby consents thereto and waives any conflict of interest arising
in any Future Representation from such prior representation, and each of such parties shall cause any of its Affiliates to consent to
waive any conflict of interest in any Future Representation arising from such representation. Each of the parties acknowledges that such
consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been
advised they should do so in connection herewith.
68
(b)
All confidential communications prior to Closing between the Seller Group or the Company, on the one hand, and ATC, on the other hand,
to seek or obtain legal advice relating to the negotiation, preparation, execution and delivery of this Agreement and the Transaction
Documents and the consummation of the transactions contemplated hereby and thereby (the “Privileged Communications”)
shall be deemed to be attorney-client privileged and the expectation of client confidence relating thereto shall survive Closing, and
from and after Closing shall belong solely to the Seller Group and shall not pass to or be claimed by Buyer Parties or the Company. Accordingly,
Buyer Parties and the Company shall not have access to any Privileged Communications whether contained in the files of the Company or
ATC elsewhere relating to such engagement from and after Closing. Without limiting the generality of the foregoing, from and after the
Closing, (i) the Seller Group (and not Buyer or the Company) shall be the sole holders of the attorney-client privilege with respect
to the Privileged Communications, and none of the Buyer Parties or the Company shall be a holder thereof, (ii) to the extent that files
of ATC in respect of such engagement constitute property of the client, only the Seller Group (and not Buyer Parties nor the Company)
shall hold such property rights, and (iii) ATC shall have no duty whatsoever to reveal or disclose any Privileged Communications or ATC’s
files in respect of such engagement to Buyer Parties or the Company by reason of any attorney-client relationship between ATC and the
Company or otherwise; provided, that the foregoing clauses (i)-(iii) shall not apply in the case of any claim involving Fraud between
the Seller Group and the Buyer Parties. Notwithstanding the foregoing, in the event that after Closing a dispute arises between Buyer
Parties or their Affiliates (including the Company), on the one hand, and a third party other than any of the Seller Group, on the other
hand, Buyer Parties and their Affiliates (including the Company) may assert the attorney-client privilege to prevent disclosure of the
Privileged Communications to such third party; provided, however, that neither Buyer Parties nor any of their Affiliates (including the
Company) may waive such privilege without the prior written consent of the Seller Group, which consent shall not be unreasonably withheld,
conditioned or delayed. In the event that Buyer Parties or any of their Affiliates (including the Company) is legally required by order
of any Governmental Authority or otherwise legally required to access or obtain a copy of all or a portion of the Privileged Communications,
to the extent (x) permitted by applicable Law, and (y) advisable in the opinion of Buyer Parties’ counsel, then Buyer Parties shall
promptly notify Sellers in writing to enable Sellers to seek a protective order. In furtherance of the foregoing, each of the parties
agrees that (i) no waiver is intended by failing to remove all Privileged Communications from the Company’s files and computer
systems, (ii) before the Closing the Seller Group will use commercially reasonable efforts to take the steps necessary to ensure the
Privileged Communications will be held and controlled by the Seller Group following the Closing, and (iii) after the Closing the Buyer
Parties will take commercially reasonable efforts as are reasonably requested by the Seller Group to ensure that any Privileged Communications
still in the possession of the Company following the Closing will be turned over to the Seller Group. Buyer Parties agree that after
Closing none of Buyer Parties, the Company, or their Affiliates will (i) access or review the Privileged Communications in connection
with any action, litigation, claim, or dispute against or involving the Seller Group or (ii) use or assert the Privileged Communications
against the Seller Group in any action, litigation, claim, or dispute against or involving the Seller Group.
(c)
This Section 9.18 is intended for the benefit of, and shall be enforceable by, ATC. This Section 9.18 shall be irrevocable,
and no term of this Section 9.18 may be amended, waived or modified, without the prior written consent of ATC.
[The
remainder of this page is intentionally left blank.]
69
IN
WITNESS WHEREOF, the Sellers, the Company and the Buyer Parties have caused this Agreement to be executed as of the date first written
above by their respective officers thereunto duly authorized.
SELLERS:
ROY A. BOYD, II
/s/ Roy A. Boyd, II
Roy A. Boyd, II
ONIUM CAPITAL, LLC
By:
/s/
Roy A. Boyd, II
Name:
Roy
A. Boyd, II
Title:
Chairman
of the Board of Directors
[Signature
Page to Membership Interest Purchase Agreement]
IN
WITNESS WHEREOF, the Sellers, the Company and the Buyer Parties have caused this Agreement to be executed as of the date first written
above by their respective officers thereunto duly authorized.
COMPANY:
SECURED TRANSPORTATION SERVICES LLC
By:
/s/
Roy A. Boyd, II
Name:
Roy
A. Boyd, II
Title:
President
[Signature
Page to Membership Interest Purchase Agreement]
IN
WITNESS WHEREOF, the Sellers, the Company and the Buyer Parties have caused this Agreement to be executed as of the date first written
above by their respective officers thereunto duly authorized.
BUYER PARTIES:
ADVANCED FUEL TRANSPORTATION INC.
By:
/s/
James Walker
Name:
James
Walker
Title:
Authorized
Signatory
NANO NUCLEAR ENERGY INC.
By:
/s/
James Walker
Name:
James
Walker
Title:
Chief
Executive Officer
[Signature
Page to Membership Interest Purchase Agreement]
EX-10.2
EX-10.2
Filename: ex10-2.htm · Sequence: 3
Exhibit
10.2
Execution
Version
REGISTRATION
RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of May 22, 2026, is made and entered into by and among
NANO Nuclear Energy Inc., a Nevada corporation (the “Company”), and the undersigned parties listed on the signature
page hereto (each a “Signing Holder” and collectively the “Signing Holders”).
RECITALS
WHEREAS,
on the date hereof, upon the closing (the “Closing”) of the transactions (such transactions, the “Transactions,”
and the date of such Closing, the “Closing Date”) contemplated by that certain Membership Interest Purchase Agreement,
dated as of May 22, 2026 (the “Purchase Agreement”), by and among (i) the Signing Holders, (ii) Secured Transportation
Services LLC, a Delaware limited liability company (“STS”), (iii) Advanced Fuel Transportation, Inc., a Nevada corporation
(“AFT”), and (iv) the Company, all equity interests in STS were delivered to AFT in exchange for the right of the
holders thereof to receive the Aggregate Stock Consideration and the Aggregate Cash Closing Consideration (as such terms are defined
in the Purchase Agreement); and
WHEREAS,
in connection with the Closing, the Company and the Signing Holders desire to enter into this Agreement in order to provide the holders
of Registrable Securities (each a “Holder” and collectively the “Holders”) with registration rights
on the terms set forth herein; and
NOW,
THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
Article
I
DEFINITIONS
1.1 Definitions.
The terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:
“Adverse
Disclosure” shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment
of the Chief Executive Officer or principal financial officer of the Company, after consultation with counsel to the Company, (i) would
be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not
to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein
(in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading,
(ii) would not be required to be made at such time if the Registration Statement were not being filed, and (iii) the Company has a bona
fide business purpose for not making such information public.
“Agreement”
shall have the meaning given in the Preamble.
“Closing
Date” shall have the meaning given in the Recitals hereto.
“Commission”
shall mean the Securities and Exchange Commission.
“Company”
shall have the meaning given in the Preamble, and includes the Company’s successors by recapitalization, merger, consolidation,
spin-off, reorganization or similar transaction.
“Company
Common Stock” means the Company’s Common Stock, par value $0.0001 and any other shares of stock issued or issuable with
respect thereto (whether by way of a stock dividend or stock split or in exchange for or upon conversion of such shares or otherwise
in connection with a combination of shares, distribution, recapitalization, merger, consolidation, other corporate reorganization or
other similar event with respect to the Company Common Stock).
“Directors”
shall mean the Directors of the Company.
“Effectiveness
Deadline” shall have the meaning given in Section 2.1.1.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.
“Filing
Deadline” shall have the meaning given in Section 2.1.1.
“Form
S-1 Shelf” shall have the meaning given in Section 2.1.1.
“Form
S-3 Shelf” shall have the meaning given in Section 2.1.1.
“Holder”
shall have the meaning given in the Recitals hereto.
“Holder
Information” shall have the meaning given in Section 4.1.2.
“Misstatement”
shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement
or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus (in the light of the circumstances under
which they were made) not misleading.
“Person”
means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization,
trust, association or other entity.
“Piggyback
Registration” has the meaning set forth in Section 2.3.1.
“Piggyback
Registration Statement” has the meaning set forth in Section 2.3.1.
“Piggyback
Shelf Registration Statement” has the meaning set forth in Section 2.3.1.
“Piggyback
Shelf Takedown” has the meaning set forth in Section 2.3.1.
2
“Prospectus”
shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended
by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
“Purchase
Agreement” shall have the meaning given in the Recitals hereto.
“Registrable
Securities” shall mean the Aggregate Stock Consideration (including, for the avoidance of doubt, the Deferred Stock Consideration
(as defined in the Purchase Agreement)) that has been or is contemplated to be issued by the Company to the Holders pursuant to the Purchase
Agreement, including, but not limited to, any shares of Company Common Stock issued or issuable with respect to the Aggregate Stock Consideration
above by way of a stock dividend or stock split or in exchange for or upon conversion of such shares or otherwise in connection with
a combination of shares, distribution, recapitalization, merger, consolidation, other reorganization or other similar event with respect
to the Company Common Stock (it being understood that, for purposes of this Agreement, a Person shall be deemed to be a Holder whenever
such Person has the right to then acquire or obtain from the Company any Registrable Securities, whether or not such acquisition has
actually been effected); provided, however, that, as to any particular Registrable Security, such securities shall cease
to be Registrable Securities upon the earliest to occur of: (A) a Registration Statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged
in accordance with such Registration Statement by the applicable Holder; (B) such securities shall have been otherwise transferred, new
certificates for such securities not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent
public distribution of such securities shall not require registration under the Securities Act; (C) such securities shall have ceased
to be outstanding; (D) such securities (i) may be sold without registration pursuant to Rule 144 or any successor rule promulgated under
the Securities Act (but with no volume or other restrictions or limitations including as to manner or timing of sale and without the
requirement for the Company to be in compliance with the current public information requirement under Rule 144(c)(1)) and (ii) the holder
of such securities has beneficial ownership of less than 5% of the outstanding Company Common Stock; (E) such securities have been sold
to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.; and (F) a Registration
Statement with respect to the sale of any Registrable Securities shall have become effective under the Securities Act but such Registration
Statement does not cover such Registrable Security due to the failure of the Holder of such Registrable Security to provide its Holder
Information for inclusion in such Registration Statement. For the purposes of the immediately preceding sentence, “beneficial ownership”
shall be determined in accordance with Section 13(d) of the Exchange Act and Rule 13d-3 thereunder.
“Registration”
shall mean a registration effected by preparing and filing a registration statement, prospectus or similar document in compliance with
the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement
becoming effective.
3
“Registration
Expenses” shall mean the out-of-pocket expenses of a Registration, including, without limitation, the following:
(A) all
registration and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority,
Inc.) and any securities exchange on which the Company Common Stock is then listed;
(B) fees
and expenses of compliance with securities or blue sky laws;
(C) printing,
messenger, telephone and delivery expenses;
(D) reasonable
fees and disbursements of counsel for the Company; and
(E) reasonable
fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such
Registration.
“Registration
Statement” shall mean any registration statement that covers the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements
to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.
“Rule
144” shall mean Rule 144 promulgated under the Securities Act (or any successor rule then in effect).
“Securities
Act” shall mean the Securities Act of 1933, as amended from time to time.
“Shelf
Registration” shall mean a registration of securities pursuant to a registration statement filed with the Commission in accordance
with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect).
“Signing
Holders” shall have the meaning given in the Preamble.
“Subsequent
Shelf Registration” shall have the meaning given in Section 2.1.2.
“Transfer”
shall mean the (a) sale of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise
dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation
with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any security,
(b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership
of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) public announcement
of any intention to effect any transaction specified in clause (a) or (b).
4
Article
II
REGISTRATIONS
2.1 Shelf
Registration.
2.1.1 Filing.
The Company shall file, as soon as practicable, but in any event no later than ninety (90) days following the Closing Date, (the “Filing
Deadline”), a Registration Statement for a Shelf Registration on Form S-1 (the “Form S-1 Shelf”) or, if
the Company is eligible to use a Form S-3 Shelf, a Registration Statement for a Shelf Registration on Form S-3 (the “Form S-3
Shelf”), in each case, covering the resale of all the Registrable Securities (determined as of two business days prior to such
filing) on a delayed or continuous basis. The Company shall use commercially reasonable efforts to cause such Shelf Registration to be
declared effective as promptly as is reasonably practicable after filing, but in no event later than the earlier of (i) sixty (60) days
following the Filing Deadline and (ii) three (3) business days after the Commission notifies the Company that it will not review such
Shelf Registration, if applicable (the “Effectiveness Deadline”); provided, that, if such Shelf Registration filed
pursuant to this Section 2.1.1 is reviewed by, and the Company receives comments from, the Commission with respect to such Shelf
Registration, the Effectiveness Deadline shall be extended by thirty (30) days to ninety (90) days following the Filing Deadline. Such
Shelf Registration shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination
of methods legally available to, and requested by, any Holder named therein. The Company shall maintain a Shelf Registration in accordance
with the terms hereof, and shall prepare and file with the Commission such amendments, including post-effective amendments, and supplements
as may be necessary to keep a Shelf Registration continuously effective, available for use and in compliance with the provisions of the
Securities Act until such time as there are no longer any Registrable Securities. Further to the foregoing, the Company shall file appropriate
post-effective amendments and supplements as may be necessary to make any additional Registrable Security subject to an effective Shelf
Registration within five (5) business days of the issuance of such shares. In the event the Company files a Form S-1 Shelf, the Company
shall use its commercially reasonable efforts to convert the Form S-1 Shelf (and any Subsequent Shelf Registration) to a Form S-3 Shelf
as soon as practicable after the Company is eligible to use Form S-3.
2.1.2 Subsequent
Shelf Registration. If any Shelf Registration ceases to be effective under the Securities Act for any reason at any time while Registrable
Securities are still outstanding, the Company shall, subject to Section 3.4, use its commercially reasonable efforts to promptly
cause such Shelf Registration to again become effective under the Securities Act (including obtaining the prompt withdrawal of any order
suspending the effectiveness of such Shelf Registration), and shall use its commercially reasonable efforts to promptly amend such Shelf
Registration in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf Registration
or file an additional registration statement as a Shelf Registration (a “Subsequent Shelf Registration”) registering
the resale of all Registrable Securities (determined as of two business days prior to such filing), and pursuant to any method or combination
of methods legally available to, and requested by, any Holder named therein. If a Subsequent Shelf Registration is filed, the Company
shall use its commercially reasonable efforts to (i) cause such Subsequent Shelf Registration to become effective under the Securities
Act as promptly as is reasonably practicable after the filing thereof (it being agreed that the Subsequent Shelf Registration shall be
an automatic shelf registration statement (as defined in Rule 405 promulgated under the Securities Act) if the Company is a well-known
seasoned issuer (as defined in Rule 405 promulgated under the Securities Act) at the most recent applicable eligibility determination
date) and (ii) keep such Subsequent Shelf Registration continuously effective, available for use and in compliance with the provisions
of the Securities Act until such time as there are no longer any Registrable Securities. Any such Subsequent Shelf Registration shall
be on Form S-3 to the extent that the Company is eligible to use such form. Otherwise, such Subsequent Shelf Registration shall be on
another appropriate form.
5
2.2 Piggyback
Registration.
2.2.1 Whenever
the Company proposes to register the offer and sale of any shares of Company Common Stock under the Securities Act (other than a registration
(i) pursuant to a Registration Statement on Form S-8 (or other registration solely relating to an offering or sale to employees or directors
of the Company pursuant to any employee stock plan or other employee benefit arrangement), (ii) pursuant to a Registration Statement
on Form S-4 (or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto),
or (iii) in connection with any dividend or distribution reinvestment or similar plan), whether for its own account or for the account
of one or more stockholders of the Company and the form of Registration Statement (a “Piggyback Registration Statement”)
to be used may be used for any registration of Registrable Securities (a “Piggyback Registration”), the Company shall
give prompt written notice (in any event no later than thirty (30) days prior to the filing of such Registration Statement) to the holders
of Registrable Securities of its intention to effect such a registration and, subject to Sections 2.2.2 and 2.2.3, shall include in such
registration all Registrable Securities with respect to which the Company has received written requests for inclusion from the Holders
within fifteen (15) days after the Company’s notice has been given to each such Holder. If any Piggyback Registration Statement
pursuant to which Holders have registered the offer and sale of Registrable Securities is a Registration Statement on Form S-3 or the
then appropriate form for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any
successor rule thereto (a “Piggyback Shelf Registration Statement”), such Holder(s) shall have the right, but not
the obligation, to be notified of and to participate in any offering under such Piggyback Shelf Registration Statement (a “Piggyback
Shelf Takedown”).
2.2.2 If
a Piggyback Registration or Piggyback Shelf Takedown is initiated as a primary underwritten offering on behalf of the Company and (i)
the managing underwriter advises the Company and the Holders of Registrable Securities (if any Holders of Registrable Securities have
elected to include Registrable Securities in such Piggyback Registration or Piggyback Shelf Takedown) in writing or (ii) the Company
determines, in either case, that in its reasonable and good faith opinion the inclusion of any of the Registrable Securities proposed
to be included in such registration or takedown is not commercially reasonable or advisable, the Company shall include in such registration
or takedown (x) first, the shares of Company Common Stock that the Company proposes to sell; (y) second, the shares of Company Common
Stock requested to be included therein by holders of shares of Company Common Stock (other than the Holders of Registrable Securities)
that have the right to request that their shares of Company Common Stock be included therein, and (z) third, to the extent commercially
reasonable and advisable as decided by the managing underwriter and the Company, the Registrable Securities and shares of Company Common
Stock requested to be included therein by the Holders of Registrable Securities and holders of Company Common Stock other than Holders
of Registrable Securities, allocated pro rata among all such Holders on the basis of the number of Registrable Securities and the number
of shares of Company Common Stock other than Registrable Securities (on a fully diluted, as converted basis), as applicable, owned by
all such holders or in such manner as they may otherwise agree.
6
2.2.3 If
a Piggyback Registration or Piggyback Shelf Takedown is initiated as an underwritten offering on behalf of a holder of Company Common
Stock other than Registrable Securities, and (i) the managing underwriter advises the Company in writing or (ii) the Company determines,
in either case, that in its reasonable and good faith opinion the inclusion of any of the Registrable Securities proposed to be included
in such registration or takedown is not commercially reasonable or advisable, the Company shall include in such registration or takedown
(i) first, the shares of Company Common Stock requested to be included therein by holders of shares of Company Common Stock (other than
the Holders of Registrable Securities) that have the right to request that their shares of Company Common Stock be included therein,
and (ii) second, to the extent commercially reasonable and advisable as decided by the managing underwriter and the Company, the Registrable
Securities and shares of Company Common Stock requested to be included therein by the Holders of Registrable Securities and holders of
Company Common Stock other than Holders of Registrable Securities, allocated pro rata among all such Holders on the basis of the number
of Registrable Securities and the number of shares of Company Common Stock other than Registrable Securities (on a fully diluted, as
converted basis), as applicable, owned by all such holders or in such manner as they may otherwise agree.
2.2.4 If
any Piggyback Registration or Piggyback Shelf Takedown is initiated as a primary underwritten offering on behalf of the Company, the
Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such
offering.
Article
III
COMPANY PROCEDURES
3.1 General
Procedures. If the Company is required to effect the Registration of Registrable Securities, the Company shall use its commercially
reasonable efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan
of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible:
3.1.1 Subject
to Section 2 above, prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable
Securities and use its commercially reasonable efforts to cause such Registration Statement to become effective and remain effective
until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare
and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the
Prospectus, as may be requested by any Signing Holder or as may be required by the rules, regulations or instructions applicable to the
registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement
effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution
set forth in such Registration Statement or supplement to the Prospectus;
7
3.1.3 at
least five (5) business days prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish
without charge to each Holder included in such Registration, and, upon request, each such Holder’s legal counsel, copies of such
Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including
all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including
each preliminary Prospectus), and such other documents as each Holder included in such Registration or the legal counsel for any such
Holder may request in order to facilitate the disposition of the Registrable Securities owned by such Holder, which documents shall be
subject to the reasonable review and comment of Holder and its counsel; provided, that the Company shall elect whether to incorporate
any comments of Holder or its counsel in its sole discretion;
3.1.4 prior
to any public offering of Registrable Securities, use its commercially reasonable efforts to take such action necessary to cause such
Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities
as may be necessary by virtue of the business and operations of the Company; provided, however, that the Company shall
not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any
action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise
so subject;
3.1.5 cause
all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued
by the Company are then listed;
3.1.6 provide
a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date
of such Registration Statement;
3.1.7 advise
each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any
stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding
for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal
if such stop order should be issued;
3.1.8 make
available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12)
months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement
which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter
by the Commission); and
3.1.9 otherwise,
in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection
with and to effect such Registration.
3.2 Registration
Expenses. All Registration Expenses of all Registrations shall be borne in full by the Company. Notwithstanding the foregoing, it
is acknowledged by the Signing Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable
Securities, brokerage fees, and, other than as set forth in the definition of “Registration Expenses,” all reasonable fees
and expenses of any legal counsel representing the Holders.
8
3.3 Requirements
for Participation. Notwithstanding anything in this Agreement to the contrary, if any Holder does not provide the Company with its
requested Holder Information, the Company may exclude such Holder’s Registrable Securities from the applicable Registration Statement
or Prospectus if the Company determines, based on the advice of counsel, that such information is necessary to effect the registration
and such Holder continues thereafter to withhold such information. If a Holder does not respond to requests for Holder Information within
10 business days of outreach made by the Company addressed to the Holder at such Holder’s address or contact information as set
forth in the Company’s books and records, then such Holder shall be deemed to have not provided the Company with its requested
Holder Information until such Holder Information is provided. The exclusion of a Holder’s Registrable Securities as a result of
this Section 3.3 shall not affect the registration of the other Registrable Securities to be included in such Registration.
3.4 Suspension
of Sales; Adverse Disclosure.
3.4.1 Upon
receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement, each of the Holders shall
forthwith discontinue disposition of Registrable Securities until it has received copies of a supplemented or amended Prospectus correcting
the Misstatement (it being understood that the Company hereby covenants to prepare and file such supplement or amendment as soon as practicable
after the time of such notice), or until it is advised in writing by the Company that the use of the Prospectus may be resumed.
3.4.2 Subject
to Section 3.4.4, if the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration
at any time would (a) require the Company to make an Adverse Disclosure, (b) require the inclusion in such Registration Statement of
financial statements that are unavailable to the Company for reasons beyond the Company’s control, or (c) in the good faith judgment
of the majority of the Directors, be detrimental to the Company and the majority of the Directors concludes as a result that it is advisable
to defer such filing, initial effectiveness or continued use at such time, the Company may, upon giving prompt written notice of such
action to the Holders, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest
period of time determined in good faith by the Company to be necessary for such purpose. In the event the Company exercises its rights
under this Section 3.4.2, the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their
use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities.
3.4.3 Subject
to Section 3.4.4, during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of
the date of the filing of, and ending on a date one hundred and twenty (120) days after the effective date of, a Company-initiated Registration
and provided that the Company continues to actively employ, in good faith, all commercially reasonable efforts to maintain the effectiveness
of the applicable Registration Statement.
3.4.4 The
right to delay or suspend any filing, initial effectiveness or continued use of a Registration Statement pursuant to Section 3.4.2
or a registered offering pursuant to Section 3.4.3 shall be exercised by the Company, in the aggregate, not more than two (2)
times in any twelve-month period, and any such delay or suspension shall last for no more than thirty (30) consecutive days.
9
3.4.5 The
Company shall as promptly as commercially practicable notify the Holders of the expiration of any period during which the Company exercised
its rights under this Section 3.4.
3.5 Reporting
Obligations. As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting company
under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace period)
all reports required to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act. The Company
further covenants that it shall take such further action as any Holder may reasonably request, all to the extent required from time to
time to enable such Holder to sell Company Common Stock held by such Holder without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 (or any successor rule promulgated thereafter by the Commission), including providing
any legal opinions. Upon the request of any Holder, the Company shall deliver to such Holder a written certification of a duly authorized
officer as to whether it has complied with such requirements.
Article
IV
INDEMNIFICATION AND CONTRIBUTION
4.1 Indemnification.
4.1.1 The
Company agrees to indemnify, to the extent permitted by law, each Holder, its officers, members, managers, and directors (if applicable)
and each person who controls such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities
and expenses (including attorneys’ fees) resulting from any untrue statement of material fact contained in any Registration Statement,
Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused
by or contained in any information furnished in writing to the Company by such Holder expressly for use therein.
4.1.2 In
connection with any Registration Statement in which a Holder is participating, such Holder shall furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus
(the “Holder Information”) and, to the extent permitted by law, shall indemnify the Company, its directors and officers
and agents and each person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses (including without limitation reasonable attorneys’ fees) resulting from any untrue statement of material fact contained
in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission of
a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that
such untrue statement or omission is contained in any information or affidavit so furnished in writing by such Holder expressly for use
therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders
of Registrable Securities, and the liability of each such Holder shall be in proportion to and limited to the net proceeds received by
such Holder from the sale of Registrable Securities pursuant to such Registration Statement.
10
4.1.3 Any
person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification
hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s
reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit
such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense
is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its
consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume
the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel (plus local counsel) for all parties
indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict
of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying
party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot
be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such
settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified
party of a release from all liability in respect to such claim or litigation.
4.1.4 The
indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling person of such indemnified party and shall survive the transfer
of securities. The Company and each Holder participating in an offering also agree to make such provisions as are reasonably requested
by any indemnified party for contribution to such party in the event the Company’s or such Holder’s indemnification is unavailable
for any reason.
4.1.5 If
the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless
an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party,
in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of
such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party
and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue statement
of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such
indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge,
access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder
under this Section 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise
to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed
to include, subject to the limitations set forth in Sections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees,
charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that
it would not be just and equitable if contribution pursuant to this Section 4.1.5 were determined by pro rata allocation or by
any other method of allocation, which does not take account of the equitable considerations referred to in this Section 4.1.5.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution
pursuant to this Section 4.1.5 from any person who was not guilty of such fraudulent misrepresentation.
11
Article
V
MISCELLANEOUS
5.1 Notices.
All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when
delivered (i) in person, (ii) by electronic mail, with affirmative confirmation of receipt, (iii) two (2) business days after being sent,
if sent by reputable, internationally recognized overnight courier service or (iv) four (4) business days after being mailed, if sent
by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable party at the following addresses
(or at such other address for a party as shall be specified by like notice). Any notice or communication under this Agreement must be
addressed, if to any Holder, at such Holder’s address or contact information as set forth in the Company’s books and records
if the Holder has made such information available to the Company, and, if to the Company, at the address set forth below. Any party may
change its address for notice at any time and from time to time by written notice to the other parties hereto, and such change of address
shall become effective thirty (30) days after delivery of such notice as provided in this Section 5.1.
If
to the Company, to:
NANO
Nuclear Energy Inc.
10
Times Square, 30th Floor
New
York, NY 10018
Attn:
Oscar Leandro
Email:
oscar@nanonuclearenergy.com
with
a copy (which shall not constitute notice) to:
Pillsbury
Winthrop Shaw Pittman LLP
1200
Seventeenth Street NW
Washington,
DC 20036
Attention:
Elina Teplinsky
E-mail:
Elina.teplinsky@pillsburylaw.com
5.2 Assignment;
Third Party Beneficiaries.
5.2.1 This
Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or
in part.
5.2.2 This
Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and
the permitted assigns of the Signing Holders.
12
5.2.3 The
Holders shall be third party beneficiaries to the agreements made hereunder between the Company, on the one hand, and the Signing Holders,
on the other, and shall have the right to enforce such agreements directly to the extent they may deem such enforcement necessary or
advisable to protect their rights or the rights of Holders hereunder.
5.2.4 This
Agreement shall not confer any rights or benefits on any persons that are not parties hereto, other than as expressly set forth in this
Agreement and Section 5.2 hereof.
5.2.5 No
assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company
unless and until the Company shall have received (i) written notice of such assignment as provided in Section 5.1 hereof and (ii)
the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this
Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement). Any transfer or assignment made other
than as provided in this Section 5.2 shall be null and void.
5.3 Counterparts.
This Agreement may be executed in multiple counterparts and delivered electronically (including facsimile or PDF counterparts), each
of which shall be deemed an original, and all of which together shall constitute the same instrument, but only one of which need be produced.
5.4 Governing
Law; Venue. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE
THAT (I) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICT OF
LAW PROVISIONS OF SUCH JURISDICTION AND (II) THE VENUE FOR ANY ACTION TAKEN WITH RESPECT TO THIS AGREEMENT SHALL BE ANY STATE OR FEDERAL
COURT IN NEW CASTLE COUNTY IN THE STATE OF DELAWARE.
5.5 Trial
By Jury. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
5.6 Amendments
and Modifications. Upon the written consent of the Company and the Signing Holders of at least a majority in interest of the Registrable
Securities held by the Signing Holders at the time in question, compliance with any of the provisions, covenants and conditions set forth
in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however,
that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects one Holder, solely in its capacity as
a holder of the shares of capital stock of the Company, in a manner that is materially different from the other Holders (in such capacity)
shall require the consent of the Holder so affected. No course of dealing between any Signing Holder or the Company and any other party
hereto or any failure or delay on the part of a Signing Holder or the Company in exercising any rights or remedies under this Agreement
shall operate as a waiver of any rights or remedies of any Holder or the Company. No single or partial exercise of any rights or remedies
under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder
by such party.
5.7 Term.
The rights under this Agreement of any Holder shall terminate on the date that such Holder no longer holds any Registrable Securities.
The provisions of Article IV shall survive any termination.
5.8 Holder
Information. Each Holder agrees, if requested in writing, to represent to the Company the total number of Registrable Securities
held by such Holder in order for the Company to make determinations hereunder.
5.9 Remedies.
Each Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, shall be entitled to
specific performance of its rights under this Agreement. The Company acknowledges that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of this Agreement and the Company hereby agrees to waive the defense
in any action for specific performance that a remedy at law would be adequate.
[Signature
Page Follows]
13
IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
COMPANY:
NANO NUCLEAR ENERGY Inc.,
a Nevada corporation
By:
/s/
James Walker
Name:
James
Walker
Title:
Chief
Executive Officer
Signing Holders:
ROY A. BOYD, II,
an individual
/s/
Roy A. Boyd, II
ONIUM CAPITAL, LLC,
a Georgia limited liability company
By:
/s/
Roy A. Boyd, II
Name:
Roy
A. Boyd, II
Title:
Member
[Signature
Page To registration Rights Agreement]
14
EX-10.3
EX-10.3
Filename: ex10-3.htm · Sequence: 4
Exhibit
10.3
FORM
OF EQUITYHOLDER RESTRICTIVE COVENANT AGREEMENT
THIS
EQUITYHOLDER RESTRICTIVE COVENANT AGREEMENT (this “Agreement”) is made as of May 22, 2026, by and between Advanced
Fuel Transportation Inc., a Nevada corporation (the “Buyer”) and [●](the “Equityholder”).
Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Purchase Agreement (as defined below).
RECITALS
WHEREAS,
the Equityholder is a [member of Onium Capital, LLC, a Georgia limited liability company (“Onium”), which is a] member
of Secured Transportation Services LLC, a Delaware limited liability company (the “Company”);
WHEREAS, pursuant
to (i) that certain Membership Interest Purchase Agreement, dated as of May 22, 2026, by and among Onium Capital, LLC, a Georgia limited
liability company (“Onium”), Roy A. Boyd, II (together with Onium, the “Sellers”), the Company,
the Buyer, and Nano Nuclear Energy Inc., a Nevada corporation (the “Parent” and, together with the Buyer and each
of the Parent’s and the Buyer’s Affiliates (including the Company), each a “Buyer Party” and collectively,
the “Buyer Parties”) (the “Purchase Agreement”), the Buyer will purchase from the Sellers all of
the Sellers’ equity interests in the Company (the “Transaction”);
WHEREAS,
the Equityholder will receive a substantial financial benefit from the Transaction; and
WHEREAS,
the Transaction is conditioned upon the execution and delivery of this Agreement and the parties hereto are willing to execute this Agreement
and be bound by the provisions hereof.
NOW,
THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which
is acknowledged by the parties hereto, effective as of and contingent upon the Closing of the Transaction, the parties hereto hereby
agree as follows:
Section 1. Confidentiality.
The
Equityholder will hold, and will cause its Affiliates and partners, principals, directors, officers, equityholders, managers, employees,
and other authorized Persons who receive Confidential Information (as defined below) and direct its counsel and accountants (together
with such partners, principals, directors, officers, equityholders, managers, employees and other authorized Persons, collectively, their
“Representatives”) to hold, all documents or information disclosed or otherwise made available by inspection, observation
or otherwise concerning the Buyer Parties (such information, the “Confidential Information”) furnished to the Equityholder,
in each case, whether disclosed in writing, orally, electronically or otherwise, in connection with the transactions contemplated by
the Purchase Agreement, in strict confidence (outside the course of performing authorized duties on behalf of any Buyer Party or their
Affiliates, to the extent the Equityholder is engaged or employed thereby), unless compelled to disclose by judicial or administrative
process, or, in the opinion of its counsel, by other requirements of applicable Laws or except to the extent that the Confidential Information
can be shown to have been (a) in the public domain or is generally available to and known by the public other than as a result of disclosure
by the Equityholder in violation of this Agreement, (b) later lawfully acquired by the Equityholder from other sources not under an obligation
of confidentiality to any Buyer Party with respect to the Confidential Information, or (c) developed by the Equityholder independently
and without reference to any Confidential Information; and will not disclose such information to any third party, except to its Representatives
in connection with the Purchase Agreement. The parties agree that all information obtained in connection with the Purchase Agreement,
the Transaction Documents and the transactions contemplated thereby (but subject to the provisions of subsections (a), (b) and (c) in
the immediately preceding sentence) shall be kept confidential in accordance with the provisions of this Section 1. If the Equityholder
becomes compelled in any Action (other than an Action between or among the parties hereto or to the Purchase Agreement) or is requested
by a Governmental Authority having regulatory jurisdiction over the transactions contemplated under the Purchase Agreement to make any
disclosure that is prohibited or otherwise constrained by this Section 1, the Equityholder shall provide Parent with prompt notice
of such compulsion or request to the extent permissible under applicable Law so that Parent may (i) seek an appropriate protective order
or other appropriate remedy, in each case, at Parent’s sole expense or (ii) waive compliance with the provisions of this Section
1. In the absence of a protective order or other remedy, or an agreement between the Equityholder and the Buyer, the Equityholder
may disclose that portion (and only that portion) of the Confidential Information that, based upon the reasonable advice of the Equityholder’s
counsel, the Equityholder is legally compelled to disclose, or that has been requested by such Governmental Authority; provided, however,
that the Equityholder shall use commercially reasonable efforts (but, for avoidance of doubt, at no expense to the Equityholder) to obtain
reasonable assurance that confidential treatment will be afforded by any Person to whom any Confidential Information is so disclosed.
Section 2. Non-Compete.
(a)
Except as otherwise provided in subparagraph (b) below, the Equityholder shall not, and shall cause its Affiliates not to, in any manner
whatsoever during the period from the Closing Date to and including the fifth (5th) anniversary of the Closing Date (the “Restricted
Period”), without the prior written consent of Parent (which Parent may withhold in its sole discretion), anywhere in the United
States or in any other country or jurisdiction in which, as of the date hereof, the Company Group is engaged, or reasonably anticipates
to be engaged, in the Restricted Business (as defined below) (such territory referred to herein as the “Restricted Territory”),
either individually or in partnership or jointly or in conjunction with any other Person:
(i)
directly or indirectly carry on, engage in, provide services to, support or assist (as principal, beneficiary, director, equityholder,
partner, nominee, executor, trustee, agent, servant, employee, consultant, independent contractor, supplier, lender, guarantor, financier
or in any other capacity whatsoever) any Person to carry on, engage in, provide services to or assist in the Restricted Business; and,
as used herein, “Restricted Business” means any business involving (i) nuclear logistics, including the packaging,
transport or handling of nuclear or radiological materials, (ii) spent fuel and decommissioning transport, (iii) fuel-cycle intermediary
transportation, and (iv) consulting, auditing or training services related to nuclear or radiological materials or operations.
2
(ii)
have any direct or indirect ownership or other economic interest (as principal, beneficiary, director, equityholder, partner, nominee,
executor, trustee, agent, servant, employee, consultant, independent contractor, supplier, lender, guarantor, financier or in any other
capacity whatsoever) in or with any Person engaged in or reasonably anticipated to be engaged in the Restricted Business.
(b)
Notwithstanding any provisions or restrictions contained in this Section 2, nothing in this Section 2 shall prohibit or
restrict the Equityholder or its Affiliates from (i) owning as a passive investment less than three percent (3%) in the aggregate of
(A) the publicly traded securities of any entity or (B) securities of any investment fund engaged in or reasonably anticipated to be
engaged in the Restricted Business, provided that neither the Equityholder nor its Affiliates provide any services to such entity or
fund or any Affiliate thereof (whether as an employee, consultant, advisor or otherwise), or (ii) engaging in any Permitted Outside Activities
(as defined below) so long as such activities do not otherwise violate the terms of this Section 2 and, in the course of such activities,
Equityholder and its Affiliates otherwise comply with all of the obligations in this Agreement, including, but not limited to, those
set forth in Sections 1 - 3. As used herein, “Permitted Outside Activities” means participating in the management
of (i) Onium Machine and Fabrication, LLC (“OMF”, Onium, and Connect Consulting, LLC (“CC LLC”; and
with OMF and Onium, collectively the “Equityholder Affiliated Entities, each of which is owned as of the date hereof directly
or indirectly by the Equityholder or [his/her/its] Affiliates; provided, however, that management of such entity does not compete
with the Restricted Business; for avoidance of doubt, it is agreed by Buyer Parties that the following business activities by the Equityholder
Affiliated Entities are expressly Permitted Outside Activities hereunder and shall not be prohibited by the terms of this Agreement
nor be the basis for any claim by Buyer Parties hereunder: (i) marketing, sales, design, manufacture, distribution and other services
for cask or basket system support related to the storage, transportation, and potential disposal of nuclear or radiological materials,
and (ii) marketing, sales, design, manufacture, distribution and other services related to the projects, programs and opportunities of
the Equityholder Affiliated Entities, both existing and in the future, so long as such are not expressly included in the definition of
Restricted Business hereunder.
Section 3. Non-Solicit.
During
the Restricted Period, the Equityholder shall not, and shall cause its Affiliates not to, either individually or in partnership, jointly
or in conjunction with any other Person, directly or indirectly:
(a)
solicit, hire, engage, retain the services of (as an employee, consultant, independent contractor or otherwise) any individuals who were
equityholders, employees, consultants or independent contractors of the Buyer Parties as of the Closing, without the prior written consent
of the Buyer, provided that the foregoing shall not apply (i) to general advertising, web postings or a solicitation program (including
through search firms) that are not specifically targeted at the Buyer Parties’ employees, consultants or independent contractors
and any hiring, engaging or retaining of services of Persons who respond to such advertising, postings or programs, or (ii) to the hiring
or engagement of any person whose employment or engagement as a consultant or independent contractor was terminated by a Buyer Party
more than twelve (12) months prior to such hire or engagement;
3
(b)
solicit, induce, entice or procure, or endeavor to solicit, induce, entice or procure any customer or supplier or prospective customer
or supplier of a Buyer Party that was a customer or supplier of a Buyer Party, or was an actively pursued prospective customer or supplier,
during the twelve (12) month period prior to the Closing in order to sell or offer to sell to such customer or prospective customer,
or obtain from such supplier or prospective supplier, in any case, the same, similar or related products or services as the Restricted
Business; or
(c)
solicit, induce, entice or procure, or endeavor to solicit, induce, entice or procure any customer or supplier or prospective customer
or supplier of a Buyer Party that was a customer or supplier of a Buyer Party, or was an actively pursued prospective customer or supplier,
during the twelve (12) month period prior to the Closing to cease doing business, or cease, alter or limit its business relationship,
with a Buyer Party, or to otherwise intentionally interfere with the business relationship between a Buyer Party and any such customer
or supplier, as applicable.
Section 4. Non-Disparagement.
During
the Restricted Period, the Equityholder shall not at any time make statements, representations, or other communications, directly or
indirectly, in writing, orally or otherwise, or take any action, that may, directly or indirectly, disparage or be damaging to the business
or reputation of the Buyer Parties or any of their respective Representatives or businesses. Notwithstanding the foregoing, it shall
not constitute a violation of this Section 4 for the Equityholder to make truthful statements that are required or authorized
by applicable Law (including whistleblower Laws), regulation or subpoena or other legal process, or in connection with any Action or
other dispute between or among the parties hereto or to the Purchase Agreement.
Section 5. Third
Party Beneficiaries.
The
Equityholder agrees that (a) the Buyer Parties shall have the right to enforce the Equityholder’s obligations under this Agreement,
it being understood that each of the Buyer Parties is an express third party beneficiary of this Agreement, and (b) no claimed breach
of this Agreement, the Transaction Documents or any other ancillary document, or change in the nature or scope of the Equityholder’s
relationship with the Buyer Parties shall operate to excuse the Equityholder from the performance of his, her or its obligations under
this Agreement.
Section 6. Reasonableness
of Covenants.
The
Equityholder acknowledges and agrees that:
(a)
Sections 1-4 are reasonable in the circumstances and are necessary to protect the value of the business acquired by the Buyer;
4
(b)
the Equityholder will receive a substantial financial benefit as a result of the transactions contemplated by the Purchase Agreement;
(c)
Sections 1-4 are a material inducement for the Buyer to enter into the Purchase Agreement;
(d)
the breach by the Equityholder of any of the provisions of Sections 1-4 may cause serious and irreparable harm to the Buyer Parties
which may not adequately be compensated for in damages;
(e)
the principles of law to be applied to the interpretation of Sections 1-4 are those that generally apply to restrictive covenants
given by a seller on the sale of a business; and
(f)
the Buyer Parties shall be entitled to seek an order specifically enforcing the provisions of Sections 1-4, or an order of injunction
being issued against it restraining it from any breach of such provisions without the necessity of posting any bond therefor. The provisions
of this Section 6 shall not derogate from any other remedy which the Buyer Parties may have in the event of such a breach (including,
without limitation, money damages from the Equityholder).
Section 7. Miscellaneous.
(a)
Waiver. Any failure of the Equityholder to comply with any of its obligations or agreements herein contained may be waived only
in writing by the Buyer. Any failure of the Buyer to comply with any of its obligations or agreements herein contained may be waived
only in writing by the Equityholder.
(b)
Governing Law; Venue. This Agreement and any claim or controversy arising hereunder or in connection herewith, whether sounding
in contract or tort, and whether brought at law or in equity, shall be governed by and construed in accordance with the internal substantive
laws of the State of Delaware, regardless of the choice of law rules of any jurisdiction. Any legal action or other Action relating to
this Agreement or the enforcement of any provision of this Agreement shall be brought or otherwise commenced exclusively in any state
or federal court located in the State of Delaware, and the parties expressly and irrevocably consent and submit to such jurisdiction.
(c)
Jury Trial Waiver. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN
ANY ACTION (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTION DOCUMENTS
EXECUTED AND DELIVERED IN CONNECTION HEREWITH, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(d)
Similar Restrictions in Other Agreements. The restrictions contained in this Agreement shall operate independently from any similar
restrictions contained in any other agreement between the Equityholder and a Buyer Party, the Company, or any of their respective Affiliates.
5
(e)
Counterparts. This Agreement may be executed in any number of counterparts (including by facsimile signature), each of which shall
be deemed an original but all of which together shall constitute one and the same instrument.
(f)
Amendment and Modification. This Agreement may be amended or modified only by written agreement of the parties hereto.
(g)
Binding Effect. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and
assigns.
(h)
Opportunity to Consult with Independent Counsel; No Coercion; Non-Reliance.
THE
EQUITYHOLDER ACKNOWLEDGES THAT THE EQUITYHOLDER HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT AND HAS BEEN
GIVEN SUFFICIENT TIME TO CONSIDER THIS AGREEMENT AND TO SEEK INDEPENDENT LEGAL OR OTHER ADVICE AS IT DEEMS APPROPRIATE. THE EQUITYHOLDER
FURTHER ACKNOWLEDGES AND AGREES THAT THE EQUITYHOLDER (I) HAS FULLY READ, KNOWS AND UNDERSTANDS THIS AGREEMENT, (II) HAS NOT RELIED UPON
ANY INDUCEMENTS, PROMISES OR REPRESENTATIONS MADE BY ANYONE EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN THE TRANSACTION AGREEMENTS, AND
(III) IS ENTERING INTO THIS AGREEMENT AND IS EXECUTING THIS AGREEMENT VOLUNTARILY OF THE EQUITYHOLDER’S OWN FREE WILL, WITHOUT
ANY THREATS, COERCION OR DURESS, WHETHER ECONOMIC OR OTHERWISE, HAVING BEEN MADE TO THE EQUITYHOLDER.
(i)
Severability; Modification. Any provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction shall,
as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way
the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal or unenforceable
in any other jurisdiction. Further, if a final judgment of a court or tribunal of competent jurisdiction determines that any term or
provision contained in Sections 1-5 of this Agreement is invalid or unenforceable, then the parties agree that the court or tribunal
will have the power to reduce the scope, duration or geographic area of the term or provision, to delete specific words or phrases or
to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest
to expressing the intention of the invalid or unenforceable term or provision. This Agreement will be enforceable as so modified after
the expiration of the time within which the judgment may be appealed.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have executed this Equityholder Restrictive Covenant Agreement as of the day and year first above
written.
BUYER
ADVANCED
FUEL TRANSPORTATION INC.
By:
Name:
Title:
EQUITYHOLDER
[_____________]
[By:]
[Name]
[Title]
[Signature Page to Equityholder
Restrictive Covenant Agreement – [Name]]
EX-10.4
EX-10.4
Filename: ex10-4.htm · Sequence: 5
Exhibit
10.4
Execution
Version
EXECUTIVE
EMPLOYMENT AGREEMENT
This
Employment Agreement (this “Agreement”) is entered into as of May 22, 2026, by and between Roy Boyd (“Executive”),
Secured Transportation Services LLC, a Delaware limited liability company (the “Company”), and NANO Nuclear Energy
Inc., a Nevada corporation (“Parent”).
RECITALS
WHEREAS,
the Company expects to enter into that certain Membership Interest Purchase Agreement, on or about May 22, 2026 (the “Purchase
Agreement”), by and among (i) Executive, (ii) Onium Capital, LLC, a Georgia limited liability company (together with Executive,
the “Sellers”), (iii) the Company, (iv) Advanced Fuel Transportation Inc., a Nevada corporation (“AFT”),
and (v) Parent, pursuant to which the Sellers will sell to AFT all of the issued and outstanding membership interests in the Company
(the “Acquisition”);
WHEREAS,
Executive and the Company are currently parties to that certain Employment Agreement, dated as of July 21, 2021 (the “Prior
Agreement”), setting forth certain terms and conditions of Executive’s employment with the Company;
WHEREAS,
in connection with, and conditioned upon the consummation of, the Acquisition, the Company and Executive desire to enter into this Agreement
to reflect Executive’s continued employment with the Company effective as of the closing date of the Acquisition (the “Effective
Date”);
WHEREAS,
effective as of the Effective Date, this Agreement shall govern the terms and conditions of Executive’s continued employment with
the Company;
WHEREAS,
this Agreement, subject to the consummation of the Acquisition, shall supersede any and all prior and contemporaneous, oral or written,
agreements or contracts between Executive and the Company or any predecessor thereof concerning the subject matter hereof, including
the Prior Agreement; and
WHEREAS,
if the Acquisition is not consummated for any reason, then this Agreement shall be void ab initio and shall be of no effect.
NOW
THEREFORE, in consideration of the foregoing recitals and the mutual covenants set forth herein and other good and valuable consideration,
the receipt and sufficiency of which the parties acknowledge, the Company and Executive, intending to be legally bound, hereby agree
as follows:
1.
Employment.
1.1 Position;
Duties; Responsibilities. Executive shall continue to be employed as the President of
the Company, and shall oversee the transportation services provided by the Company and any
of its current and future subsidiaries, reporting directly to the Chief Executive Officer
(the “CEO”) of Parent. Executive shall have the job responsibilities typically
associated with such position in similar capacities in similarly-sized companies and as may
otherwise reasonably be assigned by the CEO of Parent that are not inconsistent with the
Executive’s position with the Company. Executive shall devote Executive’s full
business time and efforts to the faithful performance of Executive’s duties on behalf
of the Company Group (as defined below). Executive shall not engage in additional gainful
employment or undertake any role or position, whether or not for compensation, with any person
or entity during the Term (as defined below) that would materially interfere with Executive’s
obligations to the Company Group; provided, that Executive may (a) continue to serve
on any civic or charitable boards on which Executive is currently serving as of the Effective
Date; (b) volunteer, act or perform services for charitable organizations; and (c) manage
Executive’s other business interests, including personal investments and investment
assets, participate in the management of Onium Machine and Fabrication, LLC, Onium Capital,
LLC, and Connect Consulting, LLC, each of which is owned as of the date hereof directly or
indirectly by Executive or his affiliates and (d) invest in public or private companies or
investment funds, provided that such ownership represents a passive investment of not more
than three percent (3%) of the equity securities of such company or fund, provided that neither
the Executive nor his affiliates provide any services to such entity or fund or any affiliate
thereof (whether as an employee, consultant, advisor or otherwise) (the items in clauses
(a), (b), (c) and (d) referred to collectively as the “Permitted Outside Activities”).
Notwithstanding the foregoing (i) Executive’s engagement in the Permitted Outside Activities
must not materially interfere with the performance of the Executive’s duties and responsibilities
to the Company as provided hereunder, and (ii) Executive’s engagement in the Permitted
Outside Activities must not violate Executive’s obligations set forth in Section
5 of this Agreement, or any other similar obligations set forth in any other agreement
to which Executive is subject vis-à-vis the Company Group, and Executive must at all
times comply with Section 4 of this Agreement and any other similar obligations set
forth in any other agreement to which Executive is subject vis-à-vis the Company Group.
1.2 Location.
Executive will continue to render services to the Company primarily at the Company’s
offices in Winder, Georgia; provided, however, that Executive may perform the
services under this Agreement from any location or region wherein the Company operates, or
as otherwise consented to in advance by the CEO of Parent in writing. The Company reserves
the right to require Executive to temporarily perform Executive’s duties at places
other than Executive’s primary location from time to time, provided the Company provides
reasonable advance written notice, and to require reasonable business travel (collectively
“Business Travel”).
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1.3 Employment
Term. Commencing on the Effective Date, Executive shall serve as President of the Company
and shall continue for an initial period of five (5) years from the Effective Date (the “Initial
Term”), and then continue thereafter for successive one (1)-year periods (each,
a “Successive Term”), in each case subject in all respects to Section
3 (the actual period during which Executive is employed by the Company (or a subsidiary
or successor thereof) commencing on the Effective Date, the “Term”), expressly
including the Company’s obligation to pay, if due under Section 3, Accrued Compensation
and Severance Benefits (each as defined in Section 3 below). If either party wishes
to terminate this Agreement (a) upon the expiration of the Initial Term for any reason (such
termination, a “Nonrenewal Termination”), or (b) during any Successive
Term for any reason, in each case, the applicable party must provide at least sixty (60)
days’ written notice to the other party; provided, that the Company may, in
its sole discretion, place Executive on garden leave for all or a portion of, or terminate
Executive’s employment at any time during, such sixty (60)-day period and pay out the
remaining portion thereof (and such earlier termination, if during the Initial Term, shall
also be deemed a Nonrenewal Termination). Notwithstanding anything herein to the contrary,
the parties agree that Executive’s continued employment with the Company shall at all
times be “at-will” and may be terminated by either party, at any time, with or
without Cause (as defined below), subject to the notice and other obligations set forth in
this Section 1.3 or Section 3 below, as applicable. Regardless of any changes
in Executive’s duties, title, compensation and benefits, as well as the Company’s
personnel policies and procedures, the “at-will” nature of Executive’s
employment shall not change.
2.
Compensation; Benefits.
2.1 Base
Annual Salary. Executive shall receive an annual Base Salary of $350,000, payable in
accordance with the Company’s normal payroll procedures, but not less frequently than
monthly. The Company may increase, but not decrease, Executive’s Base Salary during
Executive’s employment, other than a reduction that is implemented in connection with
a contemporaneous and proportionate reduction in annual base salaries affecting other executives
of the Company. Executive’s Base Salary shall be subject to all applicable federal
and state withholding taxes. As used herein, “Base Salary” shall mean
Executive’s current base salary at the time of the applicable employment event, as
may be adjusted by the CEO of Parent from time to time in accordance with the terms of this
Agreement.
2.2 Bonus.
Executive will be eligible to receive an annual target performance bonus equal to forty percent
(40%) of Executive’s then-current Base Salary, with a maximum potential bonus equal
to sixty percent (60%) of Executive’s then-current Base Salary (the actual amount earned
in accordance with this Section 2.2, the “Bonus”) for each calendar
year during the Term based on certain performance metric categories as follows: (a) operational
efficiency metrics (e.g., on-time delivery, cost per shipment, and warehouse efficiency);
(b) strategic initiatives metrics (e.g., successful implementation of new systems, automation,
and sustainability projects); (c) team development and retention metrics (e.g., retention,
training, and promotion of logistics team members); (d) financial performance metrics (e.g.,
cost savings, margin improvement, and revenue growth); and (e) individual performance metrics
(each of the foregoing categories, collectively, the “Bonus KPIs”). The
specific performance criteria with respect to the Bonus KPIs will be determined in good faith
by the Company and communicated to Executive within ninety (90) days of the commencement
of the applicable calendar year (or, with respect to the 2026 calendar year, within ninety
(90) days following the Effective Date). The Bonus KPIs shall be weighed equally (i.e., twenty
percent (20%) each) for purposes of calculating the Bonus hereunder. The extent to which
the Bonus KPIs are satisfied for each calendar year shall be determined by an authorized
representative of Parent in his, her or its sole discretion as exercised in good faith. Subject
to Section 3, Executive must remain employed on the payment date in order to receive
his Bonus (if any), which shall be paid to Executive, if earned, at the same time as the
Company pays annual bonuses to its other executives, but in any event no later than March
15th of the calendar year following the applicable calendar year to which such Bonus relates.
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2.3 Equity
Compensation. Subject to the approval of the Board of Directors (or a committee thereof)
of the Parent (the “Parent Board”), Executive shall be eligible to receive
an award under the Parent’s 2025 Equity Incentive Plan (the “Parent Equity
Plan”) as determined by the Parent Board in its sole discretion. The terms and
conditions of such award, if any, shall be governed by the applicable award documents approved
by the Parent Board and as provided to Executive under separate cover.
2.4 Expenses.
The Company shall continue to reimburse Executive for all reasonable Business Travel and
other business expenses incurred by Executive in the course of performing Executive’s
duties to the Company subject to the expense reimbursement policies of the Company as they
may be in effect from time to time.
2.5 Benefits.
Executive shall be eligible, at Executive’s election, to participate in all benefit
plans and programs generally available to other similarly situated Company executives, and
as such plans may be amended from time to time. Executive’s participation in any benefit
plan or program will be subject to the eligibility requirements and the terms and conditions
of the applicable plans. The Company may, in its sole discretion and from time to time, amend,
suspend or eliminate broad-based benefit plans or programs as it deems appropriate so long
as such amendment, suspension or termination affects all of the Company’s similarly
situated executives. Notwithstanding anything to the contrary contained herein, during the
Term, with respect to any group medical, dental, and vision insurance benefits the Company
offers from time to time, the Company agrees to pay 100% of the monthly premium costs for
Executive’s individual coverage.
2.6 Paid
Time Off. Executive will continue to be entitled to flexible paid time off pursuant to
the Company’s Paid Time Off policy. The Company, however, in its sole discretion may
revise this policy or implement a new policy at any time, in its sole discretion, in the
future.
2.7 Life
Insurance. During the Term, the Company shall pay all premiums on behalf of Executive
due or coming due with respect to that certain life insurance policy with Prudential Insurance,
Policy # L8673226, attached hereto as Exhibit A (the “Life Insurance Policy”).
Executive and his successors and beneficiaries may not amend, modify or supersede the Life
Insurance Policy without the prior written consent of an authorized officer of the Company.
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2.8 Indemnification.
Executive shall be indemnified under the applicable Company Group policy with respect to
directors’ and officers’ indemnification as the same may be amended from time
to time, and Executive shall be covered by the directors’ and officers’ liability
insurance that is maintained by such member of the Company Group, as amended from time to
time, in each case under which the Company Group’s other similarly situated executives
are covered.
3.
Termination. The Company or Executive may terminate this Agreement and Executive’s employment at any time (subject to any
prior notice requirement under Section 1.3 or this Section 3), as provided below:
3.1 Termination
of Employment. If Executive’s employment is terminated by the Company or if Executive
resigns, in each case for any reason, or if Executive’s employment is terminated as
a result of a Nonrenewal Termination, the Company shall pay Executive: (a) any unpaid Base
Salary accrued through the date of termination; (b) benefits payable to Executive pursuant
to the terms and conditions of any benefit plan or program in which Executive was a participant
as of such termination, the right to which was vested on the date of Executive’s termination
under the terms and conditions of such plan or program; and (c) unreimbursed business expenses
(collectively, the “Accrued Compensation”). Payment of the Accrued Compensation
shall be made as part of Executive’s final paycheck, except as may otherwise be provided
under the terms of any applicable benefit plan or program.
3.2 Termination
by the Company for Cause. The Company shall have the right to terminate Executive’s
employment and this Agreement immediately for any of the following reasons (each of which
is referred to herein as “Cause”):
(a) an
act of dishonesty or moral turpitude on Executive’s part which is intended to or results
in Executive’s personal enrichment or has or is likely to have an adverse effect upon
the Company Group (or any of its or their assets);
(b) Executive’s
conviction of, or plea of nolo contendere to, any felony or crime involving acts of fraud,
theft or embezzlement by Executive;
(c) Executive’s
willful and repeated failure to perform Executive’s duties or to comply with lawful
directives of the CEO of Parent (other than as a result of Executive’s physical or
mental incapacitation) after written notice thereof and a reasonable opportunity to remedy
such failure within thirty (30) days of such notice (if such failure can reasonably be remedied);
(d) Executive’s
failure to comply with written policies of the Company that has or is likely to have a material
adverse effect upon the Company Group (or any of its or their assets) after written notice
thereof and a reasonable opportunity to remedy such failure within thirty (30) days of such
notice (if such failure can reasonably be remedied);
5
(e) Executive’s
gross negligence or willful misconduct in performing Executive’s duties or conduct
on the part of Executive that constitutes a breach of any fiduciary duty or duty of loyalty
owed to the Company Group by Executive;
(f) Executive’s
breach of any material provision of this Agreement, including any breach by Executive of
Sections 4, 5 and/or 6 of this Agreement or of any other restrictive
covenant entered into between the Company or any other member of the Company Group and Executive,
that remains uncured after written notice thereof and a reasonable opportunity to remedy
such failure within thirty (30) days of such notice (if such failure can reasonably be remedied);
or
(g) Executive’s
breach of, or a breach by an affiliate of Executive of, or the Company’s reasonable
determination that Executive or one of his affiliates has breached, that certain Equityholder
Restrictive Covenant Agreement, dated as of May 22, 2026, by and between Executive and AFT
(the “Equityholder Restrictive Covenant Agreement”), that remains uncured
after written notice thereof and a reasonable opportunity to remedy such failure within thirty
(30) days of such notice (if such failure can reasonably be remedied).
If
the Company terminates Executive’s employment for any of the reasons set forth above, the Company shall pay Executive any Accrued
Compensation through the date of termination, and the Company shall have no further obligations to Executive hereunder from and after
the date of termination.
3.3 Termination
by the Company without Cause or Resignation for Good Reason by Executive. The Company
shall have the right to terminate Executive’s employment without Cause upon sixty (60)
days prior written notice, and Executive may terminate Executive’s employment for Good
Reason (as defined below). For the avoidance of doubt, a Nonrenewal Termination will not,
on its own, constitute a termination by the Company without Cause or a resignation by Executive
for Good Reason, as applicable. In the event of a termination by the Company without Cause
or resignation by Executive for Good Reason, the Company shall pay Executive any Accrued
Compensation through the date of termination. In addition, subject to the provisions of Section
3.7, Executive shall be entitled to receive the following “Severance Benefits”:
(a) a
severance payment equal to twelve (12) months of Base Salary, payable in equal installments
in accordance with the Company’s normal payroll practices;
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(b) a
pro-rated Bonus for the year in which such termination occurs, which shall be calculated
based on actual attainment of the Bonus KPIs, based on a fraction (i) the numerator of which
shall be the number of full calendar days Executive was continuously employed by the Company
during such year, and (ii) the denominator of which shall be the number of calendar days
in such year, which shall be paid at the same time as annual bonuses are paid to executives
of the Company generally; and
(c) if
Executive timely elects continued coverage under COBRA, the Company shall pay one hundred
percent (100%) of the Executive’s medical insurance premiums under COBRA for twelve
(12) months (the “COBRA Coverage Period”); provided, however,
such health insurance premium payments shall cease if Executive receives substantially similar
coverage from another company prior to the conclusion of the COBRA Coverage Period or if
Executive ceases to be eligible for COBRA continuation for any reason.
For
purposes of this Agreement, “Good Reason” shall mean Executive’s resignation due to the occurrence of any of
the following events, without Executive’s written consent: (i) a material reduction in Executive’s Base Salary or Bonus opportunity
(other than a reduction that is implemented in connection with a contemporaneous and proportionate reduction in annual base salaries
or annual bonus opportunities, as applicable, affecting other executives of the Company); (ii) a material reduction in Executive’s
title, authority, duties, or responsibilities (other than temporarily while Executive is physically or mentally incapacitated) with respect
to Executive’s role as President of the Company (including any subsidiaries thereof); (iii) the relocation of Executive’s
principal place of employment by more than thirty-five (35) miles and Executive is not afforded the opportunity to work remotely from
Executive’s home office location; or (iv) any material breach by Company of any material provision of any agreement between Executive
and the Company or any other member of the Company Group, including this Agreement.
Executive
cannot terminate employment for Good Reason unless (x) Executive has provided written notice to the Company of the existence of the circumstances
providing grounds for termination for Good Reason within sixty (60) days of the earlier of (A) Executive’s actual knowledge of
the initial existence of such grounds or (B) when Executive should have reasonably been aware of the initial existence of such grounds,
in each case which notice shall describe such circumstances in reasonable detail; (y) the Company fails to cure such circumstances within
forty-five (45) days from the date on which such notice is provided to the Company (the “Good Reason Cure Period”);
and (z) Executive does actually voluntarily terminate Executive’s employment with the Company within thirty (30) days following
the end of the Good Reason Cure Period.
Subject
to Section 3.7 below, the first severance payment shall be made on the next regularly scheduled payroll date following the date
that the General Release (as defined below) becomes irrevocable and shall include payment of any amounts that would otherwise be due
prior thereto.
3.4 Termination
Upon Death. In the event that Executive’s employment with the Company is terminated
due to the death of Executive, the Company shall pay Executive’s estate any Accrued
Compensation through the date of death.
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3.5 Termination
Upon Disability. In the event of the Disability (as defined below) of Executive, the
Company may terminate Executive’s employment hereunder by giving Executive not less
than thirty (30) days’ prior written notice of the effective date of termination and,
in such event, the Company shall pay Executive any Accrued Compensation through the date
of termination. For purposes of this Agreement, Executive’s “Disability”
means Executive’s inability to perform the essential functions of Executive’s
position as a result of physical or mental illness or injury, as determined by the Company
in its good faith judgment, for a period of one hundred twenty (120) consecutive days or
one hundred eighty (180) non-consecutive days within a three hundred sixty-five (365)-day
period.
3.6 Change
in Control Termination.
(a) Notwithstanding
any other provision contained herein, if the Executive’s employment hereunder is terminated
by the Executive for Good Reason or by the Company without Cause, in each case within twenty-four
(24) months following a Change in Control, the Executive shall be entitled to receive the
Accrued Compensation and subject to the Executive’s compliance with Section 3.7
of this Agreement, the Executive shall be entitled to receive the Severance Benefits in a
single, lump-sum payment as soon as possible following the date that the General Release
becomes effective and irrevocable in accordance with Section 3.7.
(b) For
purposes of this Agreement, “Change in Control” shall have the meaning
set forth in the Parent Equity Plan.
3.7 Release
Required for Severance Benefits; Restrictive Covenant Compliance. Executive agrees that,
as a condition to receiving the Severance Benefits under Section 3.3 or Section
3.6, as applicable, Executive shall execute and deliver a non-revocable separation agreement
and general release provided by the Company (the “General Release”) within
sixty (60) days following termination of employment. Failure to timely execute and return
such General Release or the revocation of such General Release during the revocation period
shall be a waiver by Executive of Executive’s right to the Severance Benefits (which,
for avoidance of doubt, shall not include any amounts required by law to be paid). In addition,
the Severance Benefits are conditioned on Executive’s compliance with Sections 4,
5, and 6 of this Agreement, and the Company reserves the right to cease payment
of the Severance Benefits in the event that Executive has breached Sections 4, 5,
or 6 of this Agreement.
3.8 Deferred
Stock Consideration Under Purchase Agreement. For avoidance of doubt, Executive and the
Company Group acknowledge and agree that the Aggregate Post-Closing Stock Consideration (as
defined in the Purchase Agreement) is subject to the terms and conditions set forth in the
Purchase Agreement and not this Agreement.
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3.9 Treatment
of Incentive Equity Awards. Notwithstanding anything herein to the contrary, the treatment
of any incentive equity awards issued by any member of the Company Group to Executive in
exchange for Executive’s services to any member of the Company Group, whether such
award(s) is (are) issued under the Parent Equity Plan or otherwise, in connection with a
termination of Executive’s employment or services shall be governed by the applicable
plan document, award agreement(s) and any other applicable documents entered into by and
between Executive and the applicable member of the Company Group evidencing such award(s),
and nothing in this Agreement shall be construed as amending, modifying or superseding the
treatment of such award(s) as provided in such documents.
4.
Confidentiality and Intellectual Property.
4.1 Confidential
Information.
(a)
Non-Use and Non-Disclosure of Confidential Information. Executive acknowledges that, during the Term, Executive may have access
to and obtain “Confidential Information” (as defined below). Executive understands and acknowledges that at all times during
the Term and thereafter, Executive shall hold in strict confidence the Company Group’s Confidential Information, except solely
to the extent necessary to perform Executive’s obligations to the Company Group, or unless the CEO of the Parent (or his or her
designee) expressly authorizes such disclosure or use in writing. Executive acknowledges that this restriction applies whether or not
any such information is marked “confidential.”
(b)
Definition of Confidential Information. For purposes of this Agreement, “Confidential Information” means any
information (i) relating to any member of the Company Group or that is provided to Executive by any member of the Company Group or in
the possession of any member of the Company Group, in each case that is not generally known by persons not employed by the Company Group,
or (ii) that Executive knows or reasonably should know is confidential, sensitive or proprietary in nature, including, without limitation,
trade secrets, know-how, research, software, user code, data, databases, spreadsheets, compilations, passwords, plans, business plans,
product plans, student information, alumni information, inventions, technology, designs, marketing, forecasts, market research, strategies,
vendor agreements, equipment specifications, services, project details, contractor lists and information, supplier lists and information,
business intelligence, supplier and contractor rates, hardware specifications, developments, processes, formulas, drawings, pricing strategies,
sales methods, tax information, revenue figures, account information, development strategies and plans, credit information, financial
information, financing arrangements, and other information that Executive observes, uses, receives, has access to, conceives or develops,
in whole or in part, in connection with Executive’s employment with the Company.
(c)
Defend Trade Secrets Act of 2016 Notification. Notwithstanding the foregoing, non-compliance with the disclosure provisions of
this Agreement will not subject Executive to criminal or civil liability under any federal or state trade secret law for the disclosure
of a Company trade secret that is made: (i) in confidence to a federal, state, or local government official, either directly or indirectly,
or to an attorney in confidence solely for the purpose of reporting or investigating a suspected violation of law; (ii) in a complaint
or other document filed in a lawsuit or other proceeding, provided that any complaint or document containing the trade secret is filed
under seal; or (iii) to Executive’s attorney representing him in a lawsuit for retaliation by the Company for reporting a suspected
violation of law or to use the trade secret information in that court proceeding, provided that any document containing the trade secret
is filed under seal and Executive does not disclose the trade secret, except pursuant to court order.
9
4.2 Inventions.
Executive is employed in a capacity such that Executive’s responsibilities may include
the making of technical contributions of value to the Company Group. Executive hereby assigns,
conveys and transfers to the Company all rights, title and interest in such contributions
and inventions made or conceived by Executive alone or jointly with others during Executive’s
employment which either (a) relate to the Company Group’s actual business, (b) relate
to any business which is actively planned by the Company Group during the Term, or (c) which
were developed using Company Group resources or Confidential Information. Notwithstanding
the foregoing, such assignment does not include the assignment of any contributions or inventions
made or conceived by Executive (i) without the use of any Company Group resources or Confidential
Information, (ii) solely outside of working hours, and (iii) which do not relate to the Company
Group’s actual business or any business actively planned by the Company Group during
the Term. This assignment shall include (x) the right to file and prosecute patent applications
on such inventions in any and all countries, (y) the patent applications filed and patents
issuing thereon, and (z) the right to obtain copyright, trademark or trade name protection
for any such work product. Executive shall promptly and fully disclose all contributions
and inventions subject to assignment under this Section 4.2 to the Company and assist
the Company in obtaining and protecting the rights therein (including patents thereon), in
any and all countries; provided, however, that said contributions and inventions will be
the property of the Company, whether or not patented or registered for copyright, trademark
or trade name protection, as the case may be. Notwithstanding the foregoing, the Company
shall not have any right, title or interest in any work product or copyrightable work developed
outside of work hours and without the use of any of the Company Group’s resources that
does not relate to the business of the Company Group and does not result from any work performed
by Executive for the Company Group.
5.
Restrictive Covenants.
5.1 Non-Solicitation
and Unfair Competition.
(a) Executive
agrees that, during the Term and for a period of one (1) year following the termination of
Executive’s employment with the Company (or any other member of the Company Group)
for any reason, Executive shall not, directly or indirectly, contact, approach or solicit
for the purpose of offering employment to or hiring (whether as an employee, consultant,
agent, independent contractor or otherwise) or actually hire any employee, officer, director,
affiliate or consultant of the Company Group, or attempt to do any of the foregoing, without
the prior written consent of the Company; provided, however, that Executive
shall not be prohibited from (i) conducting any general solicitations in a newspaper, job
board, trade publication or other periodical or web posting not specifically targeted at
any Company Group employee, (ii) participating in job fairs, career fairs or similar recruiting
events or (iii) hiring any person, to the extent that the Company Group has terminated such
person’s employment or engagement at least twelve (12) months prior to such hire. This
prohibition applies only to employees working in the geographic locations in which the Company
Group conducts business at the time of the prohibited solicitation.
10
(b) Executive
agrees that, during the Term, Executive will not, directly or indirectly, other than on behalf
of the Company Group, (i) service, take orders from, call on or solicit the business of any
individual or entity who is or has been, a current or actively pursued prospective referral
source, customer, vendor, supplier, teaming partner, subcontractor, prime contractor or any
other business partner of the Company Group as of or at any time within the twelve (12)-month
period immediately preceding such action, or attempt to do so, (ii) otherwise divert, entice
or take away from the Company Group the business or patronage of any of the Company Group’s
current or actively pursued prospective referral sources, customers, vendors, suppliers,
teaming partners, subcontractors, prime contractors or any other business partner, or attempt
to do so, or (iii) solicit, induce or encourage any of the Company Group’s current
or actively pursued prospective referral sources, customers, vendors, suppliers, teaming
partners, subcontractors, prime contractors or any other business partner to terminate or
reduce its relationship with the Company Group, or attempt to do so.
(c) Executive
agrees that, for a period of one (1) year following the termination of Executive’s
employment with the Company (or any other member of the Company Group) for any reason, Executive
will not, directly or indirectly solicit, or attempt to solicit, any of the Company Group’s
current or actively pursued prospective referral sources, customers, vendors, suppliers,
teaming partners, subcontractors, prime contractors or any other business partner to provide
services or products that are the same as or substantially similar to, or competitive with,
those provided by the Company Group, or otherwise solicit, induce or encourage, or attempt
to solicit, induce or encourage, any of Company Group’s current or actively pursued
prospective referral sources, customers, vendors, suppliers, teaming partners, subcontractors,
prime contractors or any other business partner to terminate or reduce its relationship with
the Company Group. For purposes of this Section 5.1(c), referral sources, customers,
vendors, suppliers, teaming partners, subcontractors, prime contractors and business partners
are those with which Executive worked, or about which Executive learned Confidential Information,
during the last twelve (12) months of Executive’s employment and actively pursued prospective
referral sources, customers, vendors, suppliers, teaming partners, subcontractors, prime
contractors and business partners are those with which Executive was involved in pitching
or marketing in an attempt to gain their business, or about which Executive learned Confidential
Information, during the last twelve (12) months of Executive’s employment.
11
(d) For
purposes of this Section 5, in the case of a governmental authority or agency, “customer”
means the source selection officials or program office for any applicable contract or program
and the personnel that are assigned to such program office.
(e) By
signing this Agreement, Executive acknowledges and agrees that the non-public names, addresses,
preferences, contract terms and financial information of the Company Group’s referral
sources, customers, vendors, suppliers, teaming partners, subcontractors, prime contractors
and business partners constitute Confidential Information and that the sale or unauthorized
use or disclosure of this or any other Confidential Information that Executive obtained during
the course of Executive’s employment would constitute Unfair Competition (as defined
below) with the Company Group. Executive promises not to engage in any Unfair Competition
with the Company Group either during the Term or at any time thereafter. For purposes of
this Agreement, “Unfair Competition” shall mean any direct or indirect
competition by Executive with the business of the Company Group by using any trade secrets
of the Company Group or other Confidential Information.
5.2 Non-Competition.
Executive agrees that during the Term and for a period of one (1) year following the termination
of Executive’s employment with the Company (or any other member of the Company Group)
Executive shall not, either on Executive’s own behalf, or on behalf of any other person
or entity, without the prior written consent of the Company, directly or indirectly, anywhere
in the United States or in any other country or jurisdiction in which the Company Group is
engaged in the Restricted Business, own, operate, manage, control, engage in, participate
in, invest in, permit Executive’s name to be used by, act as consultant or advisor
to, render services for (alone or in association with any person or entity) or otherwise
assist in any manner any person or entity that engages or proposes to engage in or owns,
invests in, operates, manages or controls any venture or enterprise that engages in the Restricted
Business. For avoidance of doubt, nothing in this Section 5.2 is intended to or does
prohibit Employee from engaging in any Permitted Outside Activities so long as such activities
do not otherwise violate the terms of this Section 5. Further, notwithstanding anything
in this Section 5.2 to the contrary, Executive’s passive ownership of three
percent (3%) or less of the equity securities of a publicly traded company or investment
fund shall not, solely by reason thereof, constitute a violation on the part of Executive
of this Section 5.2.
5.3 Restricted
Business. For purposes of this Agreement, “Restricted Business” means
the business of the packaging and transport of nuclear material.
5.4 Company
Group. For purposes of this Agreement, the “Company Group” means the
Company, AFT, the Parent, and its and their subsidiaries and affiliates.
12
5.5 Reasonableness.
It is agreed by the parties that the foregoing covenants in this Section 5: (a) are
reasonable in light of the consideration payable to Executive pursuant to this Agreement,
and (b) impose a reasonable restraint on Executive in light of the activities and business
of the Company Group on the date of the execution of this Agreement and the current plans
of the Company Group. Executive acknowledges that the covenants in this Section 5
shall not prevent Executive from earning a livelihood upon the termination of employment
hereunder, but merely prevents Unfair Competition with the Company Group for a limited period
of time.
5.6 Non-disparagement.
Executive hereby agrees that, during the Term and at all times thereafter, Executive will
not, directly or indirectly, disparage the Company Group, or any of its owners, employees,
officers, directors, agents, products or services, or disseminate, or cause or permit the
dissemination of, any negative statements about the Company Group or any of its owners, employees,
officers, directors, agents, products or services. Notwithstanding the foregoing, Executive
is not hereby barred or restricted from exercising any right of speech or expression protected
by applicable federal, state or local law, including, but not limited to, the rights to communicate
with securities regulators/any other administrative or regulatory agency to report suspected
unlawful conduct or from complying with any applicable law or regulation or a valid order
of a court of competent jurisdiction or an authorized government agency, provided that such
compliance does not exceed that required by the law, regulation, or order. Further and notwithstanding
the foregoing, in connection with a bona fide dispute between Executive and the Company,
nothing in this Section shall prohibit Executive (a) from making truthful statements to his
legal counsel or senior management of the Company Group when necessary or (b) from providing
truthful testimony in any lawsuit, arbitration or other legal proceeding, provided that such
statements are not made in any public medium (but such statements are expressly permitted
in any hearing related to any such bona fide dispute, whether public or private).
5.7 Severability.
The covenants in this Section 5 are severable and separate, and the unenforceability
of any specific covenant shall not affect the provisions of any other covenant. In the event
any arbitrator or court of competent jurisdiction shall determine that the scope, time or
territorial restrictions set forth herein are unreasonable, then it is the intention of the
parties that such restrictions be enforced to the fullest extent that such arbitrator or
court deems reasonable, and this Agreement shall thereby be reformed.
6.
Executive’s Representations, Warranties and Covenants.
6.1 No
Conflict of Interest. Executive warrants that Executive is not, to the best of Executive’s
knowledge and belief, involved in any situation that might create, or appear to create, a
conflict of interest with their loyalty to or duties for the Company, except as such may
have been previously disclosed to the Company in writing. Executive further covenants and
agrees that for so long as Executive continues to be employed by Company, Executive shall
not become involved in any situation that might create, or appear to create, a conflict of
interest with their loyalty to or duties for the Company without disclosing such conflict
of interest to the Company in writing, and obtaining consent to remain involved in such situation.
13
6.2 Notification
of Other Post-Employment Obligations. Executive also understands that, as part of Executive’s
employment with the Company, Executive is not to breach any obligation of confidentiality
that Executive has to former employers, and Executive agrees to honor all such obligations
to former employers during Executive’s employment with the Company. Executive represents,
warrants and covenants that: (a) Executive’s work for the Company will not conflict
with, or result in a breach or violation of, any obligation or agreement Executive may have
with any former company or other entity; (b) Executive has not used, disclosed or revealed
to the Company, its employees or agents, and will not during their employment use, disclose
or reveal to the Company, its employees or agents, any confidential information or trade
secrets of any other company; (c) Executive has fully disclosed to the Company any and all
non-competition and non-solicitation agreements with any former company or other company
to which they may be subject; and (d) Executive has returned to all former employers and
clients all documents, materials, electronic data, drives and diskettes containing confidential
information or trade secrets belonging to them.
7.
General Provisions.
7.1 Amendment
and Waiver. No amendment or modification of this Agreement shall be valid or binding
upon the Company unless made in writing and signed by an authorized officer of the Company.
7.2 Non-Waiver
of Breach. No failure by either party to declare a default due to any breach of any obligation
under this Agreement by the other, nor failure by either party to act quickly with regard
thereto, shall be considered to be a waiver of any such obligation, or of any future breach.
7.3 Severability.
In the event that any provision or portion of this Agreement, shall be determined to be invalid
or unenforceable for any reason, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect.
7.4 Binding
Arbitration. The parties agree that, except as noted below, any controversy, claim or
dispute arising out of or related to Executive’s employment, or the termination thereof
(“Claims”) shall be arbitrated in accordance with the following procedure:
(a) Any
and all Claims shall be submitted to final, confidential and binding arbitration in Barrow
County, Georgia pursuant to the Federal Arbitration Act, administered by JAMS Arbitrators
& Arbitration Services (“JAMS”) and in accordance with the Employment Arbitration
Rules and Procedures of JAMS; provided, however, that the arbitrator shall
allow for discovery sufficient to adequately arbitrate any claims including access to documents
and witnesses. The arbitrator shall be selected in accordance with the JAMS’ selection
procedures in effect at the time. Either party may initiate arbitration proceedings by filing
a demand for arbitration with JAMS.
14
(b) The
arbitrator shall have the authority to grant any relief authorized by law.
(c) The
arbitrator shall have exclusive authority to resolve all Claims covered by this arbitration
agreement, and any dispute relating to the interpretation, applicability, enforceability
or formation of this arbitration agreement, including, but not limited to, any claim that
all or any part of this arbitration agreement is void or voidable. Any issues involving the
arbitrability of a dispute shall be governed by the Federal Arbitration Act, 9 U.S.C. §
1 et seq.
(d) All
fees and expenses relating to any arbitration (including, without limitation, the reasonable
legal fees and expenses of the prevailing party and expert witness fees) arising pursuant
hereto shall be paid by the non-prevailing party, and the arbitrator shall include an award
of such amounts in its decision. Notwithstanding the foregoing, the Company shall pay for
any administrative or filing fees, including the arbitrator’s fee, that Executive would
not have otherwise incurred if the dispute was adjudicated in a court of law, rather than
through arbitration.
(e) The
Claims covered by the above include, but are not limited to, claims for wrongful termination,
unpaid wages or compensation, breach of contract, torts, violation of public policy, claims
for harassment or discrimination (including, but not limited to, race, sex, religion, national
origin, age, marital status, medical condition, disability, or sexual orientation), claims
for benefits (except where an employee benefit or pension plan specifies a procedure for
resolving claims different from this one), claims for physical or mental harm or distress,
or any other employment-related claims under any federal, state or other governmental law,
statute, regulation or ordinance, including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Americans With Disabilities Act, the Age Discrimination in Employment Act,
and any other statutes or laws relating to an employee’s relationship with the Company,
and claims related to Executive’s agreements with the Company.
(f) To
the fullest extent permitted by law, the parties agree that any arbitration shall be conducted
on an individual basis only, not a class, collective or representative basis, and hereby
waive any right to bring class-wide, collective or representative claims before any arbitrator
or in any forum, except to the extent a representative action under any applicable law, is,
as a matter of law, not deemed subject to such a waiver.
15
(g) Notwithstanding
this agreement to arbitrate, neither party waives the right to seek, from a court of competent
jurisdiction, temporary restraining orders or preliminary injunctions, without the necessity
of posting a bond, to require or prevent certain acts or events (“injunctive relief”)
in cases in which such injunctive relief would otherwise be authorized by law. In such cases
where injunctive relief is sought, the trial on the merits of the action will occur in front
of, and will be decided by, the arbitrator, who will have the same ability to order legal
or equitable remedies as could a court of general jurisdiction.
(h) This
agreement to arbitrate recognizes the rights and responsibilities of government agencies,
including but not limited to, the Equal Employment Opportunity Commission and state agencies,
to enforce the statutes which come under their jurisdiction. This agreement to arbitrate
is not intended to prevent Executive from initiating or participating in any investigation
or proceeding conducted by these government agencies. Nothing in this agreement to arbitrate
is intended to require Executive to arbitrate allegations or claims of unlawful sexual assault,
harassment or any other dispute for which mandatory pre-dispute arbitration agreements are
prohibited by applicable law, nor has Executive waived Executive’s right to bring class-wide
claims with respect to sexual assault or sexual harassment claims. In addition, nothing in
this agreement to arbitrate is intended to limit any right Executive may have to file a charge
with or obtain relief from the National Labor Relations Board or to file a claim for workers’
compensation benefits and unemployment compensation benefits with the appropriate government
agency.
(i) All
proceedings and decisions of the arbitrator shall be maintained in confidence to the extent
legally permissible and shall not be made public by any party or the arbitrator without the
prior written consent of all parties to the arbitration, except as the law may otherwise
require.
(j) The
arbitrator shall issue a written arbitration decision stating the arbitrator’s essential
findings and conclusions upon which any award is based. A party’s right for review
of the decision is limited to grounds provided under applicable law.
(k) The
parties agree that the arbitration shall be final, confidential and binding and any arbitration
award shall be enforceable in any court having jurisdiction to enforce this arbitration agreement.
(l) BY
AGREEING TO THIS BINDING ARBITRATION PROVISION, BOTH THE COMPANY AND EXECUTIVE GIVE UP ALL
RIGHTS TO TRIAL BY JURY, EXCEPT AS EXPRESSLY PROVIDED HEREIN.
(m) Executive
agrees that this agreement to arbitrate shall survive the termination of Executive’s
employment.
16
7.5 Injunctive
Relief and Attorney’s Fees. Executive understands and agrees that Company will
suffer irreparable harm in the event that Executive breaches any of his obligations in this
Agreement and that monetary damages will be inadequate to compensate the Company for such
breach. Accordingly, Executive agrees that, in the event of a breach or threatened breach
by Executive of this Agreement, the Company, in addition to and not in limitation of any
other rights, remedies or damages available to the Company at law or in equity, shall be
entitled to a temporary restraining order, preliminary injunction and/or permanent injunction,
without the necessity of posting of a bond, in order to prevent or to restrain any such breach
or threatened breach by Executive, or by any or all of Executive’s partners, employers,
employees, contractors, servants, agents, representatives and any and all persons directly
or indirectly acting for, on behalf of or with Executive. Notwithstanding the agreement to
arbitrate, neither party waives the right to seek, from a court of competent jurisdiction,
such injunctive relief in cases in which such injunctive relief would otherwise be authorized
by law. The prevailing party in any legal action relating to or arising out of this Agreement
shall be entitled to recover its reasonable and documented attorneys’ fees and costs.
7.6 Governing
Law; Venue. This Agreement and any dispute arising out of or related to this Agreement
shall be governed by and construed in accordance with the laws of the State of Georgia, without
giving effect to the choice of law provisions thereof, and venue, for matters that are not
arbitrated, will be in the federal and state courts located in Georgia.
7.7 Entire
Agreement. This Agreement contains all of the terms agreed upon by Company and Executive
with respect to the subject matter hereof and supersedes all prior agreements, arrangements
and communications between the parties dealing with such subject matter, whether oral or
written, including, but not limited to, the Prior Agreement; provided, that Executive
continues to be bound by any other restrictive covenants contained in an agreement entered
into between Executive and the Company (or any other member of the Company Group) (including,
but not limited to, the Equityholder Restrictive Covenant Agreement) and Executive’s
obligations to the Company and any other member of the Company Group set forth in the Purchase
Agreement.
7.8 Section
409A. The provisions of this Agreement shall be construed, interpreted and administered
in a manner whereby all provisions are exempt from, or comply with, the requirements of Section
409A of the Internal Revenue Code of 1986, as amended, and the regulations and other guidance
promulgated thereunder (collectively, “Section 409A”). To the extent applicable,
any payments to be made under this Agreement in connection with a termination of employment
or other services shall only be made if such termination of employment or other services
constitutes a “separation from service” under Section 409A. Executive’s
right to receive any installment payments under this Agreement shall be treated as a right
to receive a series of separate payments. In no event whatsoever shall any member of the
Company Group be liable for any tax, interest, or penalty that may be imposed on Executive
by Section 409A or damages for failing to comply with Section 409A.
17
7.9 Binding
Effect; Assignment. Executive may not assign, delegate, or otherwise transfer any of
his rights or obligations under this Agreement without the prior written consent signed by
the Company. The Company may transfer or assign, in whole or from time to time in part, to
one or more of its affiliates, or to any successor to one or more of its businesses, its
rights or obligations under this Agreement without the prior written consent signed by Executive,
provided the entity to which this Agreement is assigned shall agree to accept the Company’s
obligations under this Agreement.
7.10 Notices.
All notices, requests, consents, claims, demands, waivers and other communications hereunder
shall be in writing and shall be deemed to have been given (a) when delivered by hand (with
written confirmation of receipt), (b) when received by the addressee if sent by a nationally
recognized overnight courier (receipt requested), (c) on the date sent by e-mail if sent
during normal business hours of the recipient, and on the next business day if sent after
normal business hours of the recipient or (d) on the third (3rd) day after the
date mailed, by certified or registered mail, return receipt requested, postage prepaid.
All such notices, demands and communications to a party hereto shall be sent to the address
or e-mail address indicated for such party below, unless another address is specified by
such party in a notice given to the other parties hereto in accordance with this Section
7.10.
If
to the Company, addressed to:
NANO
Nuclear Energy Inc.
10
Times Square
30th
Floor
New
York, NY 10018
Attention:
Oscar Leandro
with
a copy, which shall not constitute notice, to:
Pillsbury
Winthrop Shaw Pittman LLP
1200
Seventeenth Street NW
Washington,
DC 20036
Attention:
Elina Teplinsky
E-mail:
Elina.teplinsky@pillsburylaw.com
If
to Executive, addressed to:
Roy
A. Boyd, II
2680
Drayton Hall Drive
Buford,
GA 30519
with
a copy, which shall not constitute notice, to:
Andersen,
Tate & Carr, P.C.
1960
Satellite Blvd., Suite 4000
Duluth,
GA 30097
Attention:
R. Bradley Carr
E-mail:
bcarr@atclawfirm.com
7.11 Survival.
The rights and obligations of the parties under this Agreement, which by their nature would
continue beyond the termination or expiration of this Agreement, are of a continuing nature
and shall survive the expiration, termination or cancellation of this Agreement.
7.12 Headings.
Numbers and titles to Sections hereof are for information purposes only and, where inconsistent
with the text, are to be disregarded.
7.13 Counterparts
and Electronic Signatures. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which when taken together, shall be and constitute
one and the same instrument. This Agreement may also be entered into by either or both parties
through the use of verified electronic signature programs, such as DocuSign.
[Remainder
of page intentionally left blank.]
18
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the date and year first written above.
Secured
Transportation Services LLC
By:
/s/
James Walker
Name:
James
Walker
Title:
Authorized
Signatory
Date:
May
22, 2026
Roy
A. Boyd, II
/s/
Roy A. Boyd, II
Roy
A. Boyd, II
Date:
May
22, 2026
NANO
Nuclear Energy Inc.
By:
/s/
James Walker
Name:
James
Walker
Title:
Chief
Executive Officer
Date:
May
22,2026
[Signature
Page to R. Boyd Executive Employment Agreement]
EX-99.1
EX-99.1
Filename: ex99-1.htm · Sequence: 6
Exhibit 99.1
NANO
Nuclear Acquires Secured Transportation Services LLC, Establishing a Fully Integrated Nuclear Fuel Logistics and Transportation Platform
and Joining a Select Group of Revenue-Generating Microreactor Developers
Acquisition
adds more than 20 years of specialized nuclear transportation experience, accelerating NANO Nuclear’s fuel supply chain and reactor
deployment capabilities.
NEW
YORK, N.Y., May 26, 2026 — NANO Nuclear Energy Inc. (NASDAQ: NNE) (“NANO Nuclear” or “the Company”),
a leading advanced nuclear micro modular reactor and technology company focused on developing clean energy solutions, today announced
the acquisition of Secured Transportation Services LLC (STS), a specialized U.S. based, globally operating nuclear logistics, transportation
and services company specializing in the safe, secure and compliant movement of radioactive and nuclear materials.
This
acquisition represents a significant strategic milestone in NANO Nuclear’s evolution into a vertically integrated nuclear energy
company by adding one of the most important and challenging elements of the nuclear fuel cycle: the capability to plan, coordinate, license,
secure and execute nuclear materials transportation and related deployment activities.
With
the addition of STS, NANO Nuclear is taking a decisive step toward becoming a leader in the next generation of nuclear energy infrastructure,
with capabilities designed to support reactor deployment and the broader ecosystem required to enable commercialization at scale.
One
of the most significant barriers to scaling advanced nuclear technologies is not the reactor itself, but the infrastructure required
to support it, particularly fuel transportation. The transport of nuclear materials, particularly spent fuel, HALEU fuel and advanced
reactor components, is one of the most highly regulated and operationally complex segments of the nuclear fuel cycle, with emerging capacity
constraints expected as next-generation reactor deployments accelerate.
With
STS part of the organization, NANO Nuclear is competitively well positioned to:
● Control
and coordinate critical nuclear fuel transportation logistics.
● Support
deployment planning for microreactors and related advanced nuclear systems.
● Reduce
reliance on third-party nuclear logistics providers for core transportation and deployment
functions.
● Navigate
complex regulatory, security and route-approval requirements.
● Develop
repeatable deployment models for defense, data center, industrial, remote and international
customers.
● Support
a broader ecosystem of nuclear fuel-cycle services expected to be required by NANO Nuclear
and other nuclear industry participants.
Founded
in 2005, STS brings more than two decades of specialized nuclear transportation experience and a strong track record of executing complex
nuclear materials projects safely, securely and efficiently. STS personnel have completed projects in more than 40 countries, providing
NANO Nuclear with operational experience in navigating various regulatory requirements, physical challenges and political environments.
STS currently holds approvals for more than 90% of the active U.S. NRC approved spent fuel routes in the United States.
STS
brings a team of highly experienced professionals with backgrounds spanning nuclear engineering, logistics, regulatory affairs, and operations
- capabilities that are difficult to procure and essential to transporting fuel and deploying reactors at scale.
In
addition, the acquisition of STS provides NANO Nuclear with revenue generating operations. For the twelve months ended December 31, 2025,
STS generated audited revenues of approximately $7.1 million and net income of approximately $1.3 million, reflecting strong underlying
profitability and operational efficiency. Equally as important, NANO Nuclear sees substantial opportunity for growth at STS in the coming
years as demand for nuclear fuel transportation and logistics accelerates. STS is expected to benefit from NANO Nuclear’s relationships
and exposure to several aspects of the nuclear fuel cycle, as well as NANO Nuclear’s strong financial position through prudent
deployment of strategic growth capital.
Figure
1 - NANO Nuclear Acquires Secured Transportation Services Joining a Select Group of Revenue-Generating Microreactor Developers
The
acquisition of STS directly supports NANO Nuclear’s broader strategy of building a fully vertically integrated business, spanning:
● Reactor
design and development.
● Fuel
sourcing and processing (LEU/HALEU ecosystem).
● Fuel
transportation and logistics.
● Reactor
deployment and installation.
● Long-term
operational support.
By
integrating STS into its operations, NANO Nuclear gains the ability to coordinate the movement of nuclear fuel and reactor systems from
origin to deployment site, a capability that is expected to become increasingly valuable as demand for microreactors accelerates globally.
“This
acquisition is about more than logistics, it’s about unlocking the full potential of advanced nuclear,” said Jay Yu, Chairman
and President of NANO Nuclear. “With STS, we now control a vital link in the nuclear value chain that very few companies possess
globally. This capability will allow us to move faster, deploy quicker, and deliver our technologies anywhere in the world. We are building
infrastructure for the next generation of nuclear energy, and this is a major step forward.”
Figure
2 - NANO Nuclear Establishes a Fully Integrated Nuclear Fuel Logistics and Deployment Platform.
“This
is a transformational acquisition for NANO Nuclear,” said James Walker, Chief Executive Officer of NANO Nuclear. “STS
brings the kind of deep, specialized expertise that is essential to making advanced nuclear a reality at scale. Transportation is one
of the most overlooked, but most critical, pieces of the nuclear value chain. By bringing STS into the NANO Nuclear ecosystem, we are
removing a major bottleneck and positioning ourselves as one of the few companies capable of delivering a truly end-to-end nuclear solution.
This acquisition doesn’t just strengthen our logistics capabilities, it accelerates everything: our fuel strategy, our deployment
timelines, and our ability to serve customers across North America and internationally.”
As
the global energy system shifts toward clean, reliable, and decentralized power, microreactors are expected to play a pivotal role. However,
their success depends on the ability to safely and efficiently move fuel and systems where they are needed.
“For
more than two decades, STS has built its reputation by executing complex nuclear transportation projects safely, securely and reliably,”
said Roy Boyd, Founder & President of STS, who will continue in this role post-acquisition. “Joining NANO Nuclear gives
STS the resources and platform to expand our capabilities while maintaining the safety-first culture, regulatory discipline and customer
focus that have defined our company since its founding. We are benefitting from the industry’s growth and believe we are well-prepared
to meet expected demand. We believe our logistics, training, consulting, security coordination, engineering and project execution experience
will be highly complementary to NANO Nuclear’s broader advanced nuclear strategy and advance the overall mission to meet growing
demand for nuclear energy.”
STS
was acquired by NANO Nuclear’s existing transportation subsidiary, Advanced Fuel Transportation Inc., for total consideration
valued at up to $13 million. The total purchase price is comprised of $6 million paid in cash at closing, subject to closing adjustments,
and $7 million in restricted shares of NANO Nuclear’s common stock paid in several installments, a portion of which is subject
to certain contractual contingencies. Additional information will be provided in a Form 8-K to be filed by NANO Nuclear with the U.S.
Securities and Exchange Commission.
About
NANO Nuclear Energy Inc.
NANO
Nuclear Energy Inc. (NASDAQ: NNE) is a North American advanced technology-driven nuclear energy company seeking to become a commercially
focused, diversified, and vertically integrated company across five business lines: (i) cutting edge portable and other microreactor
technologies, (ii) nuclear fuel supply chain, (iii) nuclear fuel transportation, (iv) nuclear applications for space and (v) nuclear
industry consulting services. NANO Nuclear believes it is the first portable nuclear microreactor company to be listed publicly in the
U.S.
Led
by a world-class nuclear engineering team, NANO Nuclear’s reactor products in development include its lead project, the patented
KRONOS MMR™ Energy System, a stationary high-temperature gas-cooled reactor that is in construction permit
pre-application engagement with the U.S. Nuclear Regulatory Commission (NRC) in collaboration with University of Illinois Urbana-Champaign
(U. of I.), ZEUS™, a solid core battery reactor, and the space focused, portable LOKI MMR™,
each representing advanced developments in clean energy solutions that are modular, on-demand capable, advanced nuclear microreactors.
Advanced
Fuel Transportation Inc. (AFT), a NANO Nuclear subsidiary, bolstered by the May 2026 acquisition of Secured Transportation Services
(STS), is led by former executives from the largest transportation company in the world and provides nuclear engineering and materials
transport services in the U.S. and globally. Through NANO Nuclear, AFT is the exclusive licensee of a patented high-capacity HALEU fuel
transportation basket developed by three major U.S. national nuclear laboratories and funded by the Department of Energy.
HALEU
Energy Fuel Inc. (HEF), a NANO Nuclear subsidiary, is focusing on the future development of a domestic source for a HALEU fuel fabrication
pipeline for NANO Nuclear’s own microreactors as well as the broader advanced nuclear reactor industry.
NANO
Nuclear Space Inc. (NNS), a NANO Nuclear subsidiary, is exploring the potential commercial applications of NANO Nuclear’s developing
micro nuclear reactor technology in space. NNS is focusing on applications such as the LOKI MMR™ system and other power
systems for extraterrestrial projects and human sustaining environments, and potentially propulsion technology for long haul space missions.
NNS’ initial focus will be on cis-lunar applications, referring to uses in the space region extending from Earth to the area surrounding
the Moon’s surface.
For
more corporate information please visit: https://NanoNuclearEnergy.com/
For
further NANO Nuclear information, please contact:
Email:
IR@NANONuclearEnergy.com
Business Tel: (212) 634-9206
PLEASE FOLLOW OUR SOCIAL MEDIA PAGES HERE:
NANO
Nuclear Energy LINKEDIN
NANO
Nuclear Energy YOUTUBE
NANO
Nuclear Energy X PLATFORM
Cautionary
Note Regarding Forward Looking Statements
This
news release and statements of NANO Nuclear’s management in connection with this news release contain or may contain “forward-looking
statements” within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended, and the Private Securities Litigation
Reform Act of 1995. In this context, forward-looking statements mean statements related to future events, which may impact our expected
future business and financial performance, and often contain words such as “expects”, “anticipates”, “intends”,
“explore,” “aim,” “plans”, “believes”, “potential”, “will”, “should”,
“could”, “would,” “goal,” “aim,” or “may” or derivatives of these words and
other words relating to the future. Specifically, forward-looking statements include those related to the anticipated benefits to NANO
Nuclear of the acquisition of STS as well as NANO Nuclear’s development, construction, demonstration, regulatory licensing and
commercial plans and strategies generally. These and other forward-looking statements are based on information available to us
as of the date of this news release and represent management’s current views and assumptions. Forward-looking statements are not
guarantees of future performance, events or results and involve significant known and unknown risks, uncertainties and other factors,
which may be beyond our control. For NANO Nuclear, particular risks and uncertainties that could cause our actual future results to differ
materially from those expressed in our forward-looking statements include but are not limited to the following: (i) risks related to
our U.S. Department of Energy (“DOE”), Canadian Nuclear Safety Commission (“CNSC”) or related state or non-U.S.
nuclear licensing submissions, (ii) risks related to our vertical integration strategy (notably the integration of STS as contemplated
herein) and the development of new or advanced technology and the acquisition of complimentary technology or businesses, including difficulties
with design and testing, cost overruns, regulatory delays, integration issues and the development of competitive technology, (iii) our
ability to obtain contracts and funding to be able to continue operations, (iv) risks related to uncertainty regarding our ability to
technologically develop and commercially deploy a competitive advanced nuclear reactor or other technology in the timelines we anticipate,
if ever, (v) risks related to the impact of U.S. and non-U.S. government regulation, policies and licensing requirements, including by
the DOE, the U.S. Nuclear Regulatory Commission, including those associated with the recently enacted ADVANCE Act and the May 23, 2025
Executive Orders seeking to streamline nuclear regulation, as well as the CNSC, and (vi) similar risks and uncertainties associated with
the operating an early stage business a highly regulated and rapidly evolving industry. Readers are cautioned not to place undue reliance
on these forward-looking statements, which apply only as of the date of this news release. These factors may not constitute all factors
that could cause actual results to differ from those discussed in any forward-looking statement, and NANO Nuclear therefore encourages
investors to review other factors that may affect future results in its filings with the SEC, which are available for review at www.sec.gov
and at https://ir.nanonuclearenergy.com/financial-information/sec-filings. Accordingly, forward-looking statements should not
be relied upon as a predictor of actual results. We do not undertake to update our forward-looking statements to reflect events or circumstances
that may arise after the date of this news release, except as required by law.
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