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):

 

September 28, 2021

 

 

 

AMICUS THERAPEUTICS, INC.

(Exact Name of Registrant as Specified in Charter)

 

 

 

Delaware   001-33497   71-0869350

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

 

3675 Market Street, Philadelphia, PA 19104

(Address of Principal Executive Offices, and Zip Code)

 

215-921-7600

Registrant’s telephone number, including Area Code

 

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
   
x 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 $0.01   FOLD   NASDAQ

 

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

 

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

 

Business Combination Agreement

 

On September 29, 2021, Amicus Therapeutics, Inc., a Delaware corporation (the “Company”), ARYA Sciences Acquisition Corp IV, a Cayman Islands exempted company (“ARYA”), Amicus GT Holdings, LLC, a Delaware limited liability company and wholly-owned subsidiary of Amicus (“Amicus GT”) and Caritas Therapeutics, LLC, a Delaware limited liability company and wholly-owned subsidiary of Amicus GT (“Caritas”) entered into a Business Combination Agreement (as it may be amended, supplemented or otherwise modified from time to time, the “Business Combination Agreement”).

 

The Business Combination Agreement and the transactions contemplated thereby were unanimously approved by the boards of directors of each of the Company and ARYA.

 

The Business Combination

 

The Business Combination Agreement provides for, among other things, the following transactions: (i) a pre-closing reorganization of the Company pursuant to which the entities and assets constituting the Company’s gene therapy business (such entities, the “Amicus GT Entities”) will be transferred to Caritas (the “Pre-Closing Reorganization”), (ii) ARYA will change its jurisdiction of incorporation by deregistering as an exempted company in the Cayman Islands and continuing and domesticating as a corporation incorporated under the laws of the State of Delaware (the “Domestication”) and, in connection with the Domestication, (A) ARYA’s name will be changed to “Caritas Therapeutics, Inc.” (“New Caritas”) (unless such name is not available in Delaware or ARYA is otherwise unable to change its name to “Caritas Therapeutics, Inc.,” in which case ARYA shall cause its name to change to such other name mutually agreed to by ARYA and the Company (such agreement not to be unreasonably withheld, conditioned or delayed by either ARYA or the Company), (B) each outstanding Class A ordinary share of ARYA and each outstanding Class B ordinary share of ARYA will become one share of Class A Common Stock of New Caritas (the “Caritas Common Stock”), and (C) ARYA will amend and restate its certificate of incorporation and bylaws in connection with the Domestication and (iii) (A) the Company will cause the existing limited liability company agreement of Caritas to be amended and restated, (B) the Company will cause all of the limited liability company interests of Caritas existing immediately prior to the Closing (as defined in the Business Combination Agreement) to be re-classified into a number of common units (“Units”) equal to the Transaction Equity Security Amount (as defined in the Business Combination Agreement) based on a pre-transaction equity value for Caritas of $175,000,000, (C) Amicus will make an additional cash contribution of $50 million (the “Amicus Contribution Amount”) in exchange for a number of Units equal to the Amicus Contribution Equity Amount (as defined in the Business Combination Agreement), (D) ARYA will contribute the Closing Date Contribution Amount (as defined in the Business Combination Agreement) to Caritas in exchange for a number of Units equal to the Net Outstanding ARYA Class A Shares (as defined in the Business Combination Agreement) and (E) New Caritas will issue to Amicus GT a number of Class B Shares, par value $0.0001 per share of New Caritas (the “Class B Shares”) (which will have no economic value but will entitle the holder thereof to one vote per share), equal to the number of Units held by Amicus GT.

 

The Pre-Closing Reorganization, the Domestication and the other transactions contemplated by the Business Combination Agreement are hereinafter referred to as the “Business Combination”.

 

Following the Business Combination, the combined company will be organized in an “Up-C” structure, in which substantially all of the assets and business of New Caritas will be held by Caritas and will operate through Caritas and the subsidiaries of Caritas, and New Caritas will be a publicly listed holding company that will hold equity interests in Caritas. At the Closing, Caritas and Amicus GT, its sole equity holder will amend and restate the limited liability company agreement of Caritas (the “Amended and Restated Limited Liability Company Agreement”) in its entirety to, among other things, provide Amicus GT the right to redeem its Units for cash or, at New Caritas’s option, Caritas Common Stock, in each case subject to certain restrictions set forth therein.

 

 

 

 

Concurrent with the closing of the transactions contemplated by the Business Combination Agreement, New Caritas will enter into the tax receivable agreement (the “Tax Receivable Agreement”) with Caritas, Amicus GT, New Caritas and the other persons from time to time that become a party thereto (such other persons and Amicus GT, collectively, the “TRA Participants”). Pursuant to the Tax Receivable Agreement, New Caritas will be required to pay the TRA Participants 85% of the amount of savings, if any, in U.S. federal, state and local income tax that New Caritas actually realizes (computed using certain simplifying assumptions) as a result of the increases in tax basis related to any exchanges of Units for Caritas Common Stock. All such payments to the TRA Participants will be New Caritas’s obligation, and not that of Caritas.

 

The Business Combination is expected to close in late 2021 or early 2022, following the receipt of the required approval by ARYA’s shareholders and the fulfillment of other customary closing conditions.

 

Representations and Warranties; Covenants

 

The Business Combination Agreement contains representations, warranties and covenants of each of the parties thereto that are customary for transactions of this type, subject to a mutual indemnity for specified matters. The Company and ARYA have also agreed to take all action within their respective power as may be necessary or appropriate such that, immediately after the Closing, the New Caritas board of directors will consist of seven directors, which shall be divided into three classes and be comprised of seven individuals determined by the Company, ARYA Sciences Holdings IV (“ARYA Sponsor”) and ARYA prior to the effectiveness of the Registration Statement as follows: two directors that will be designated by the Company; one director that will be designated by ARYA Sponsor; and four directors that the Company and ARYA will mutually agree to designate.

 

Conditions to Each Party’s Obligations

 

The obligation of the Company, Amicus GT, Caritas and ARYA to consummate the Business Combination is subject to certain customary closing conditions, including, but not limited to, (i) the expiration or termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, (ii) the absence of any order, law or other legal restraint or prohibition issued by any court of competent jurisdiction or other governmental entity of competent jurisdiction prohibiting or preventing the consummation of the transactions contemplated by the Business Combination Agreement, (iii) the effectiveness of the Registration Statement on Form S-4 (the “Registration Statement”) in accordance with the provisions of the Securities Act registering the ARYA Class A Common Stock to be issued in the Business Combination, (iv) the required approvals of ARYA’s shareholders, (v) ARYA having at least $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Securities Exchange Act of 1934, as amended) remaining after the closing of the Business Combination, (vi) the approval by Nasdaq of ARYA’s initial listing application in connection with the Business Combination and (vii) the aggregate cash proceeds from ARYA’s trust account, together with the proceeds from the Caritas PIPE Investment (as defined below) and the Amicus Contribution Amount, equaling no less than $300,000,000 (after deducting any amounts paid to ARYA shareholders that exercise their redemption rights in connection with the Business Combination).

 

Termination

 

The Business Combination Agreement may be terminated under certain customary and limited circumstances prior to the closing of the Business Combination, including, but not limited to, (i) by mutual written consent of ARYA and the Company, (ii) by ARYA if the representations and warranties of the Amicus GT Entities are not true and correct or if the Company, Amicus GT or Caritas fails to perform any covenant or agreement set forth in the Business Combination Agreement, in each case such that certain conditions to closing cannot be satisfied and the breach or breaches of such representations or warranties or the failure to perform such covenant or agreement, as applicable, are not cured or cannot be cured within certain specified time periods, (iii) by the Company if the representations and warranties of ARYA are not true and correct or if ARYA fails to perform any covenant or agreement set forth in the Business Combination Agreement, in each case such that certain conditions to closing cannot be satisfied and the breach or breaches of such representations or warranties or the failure to perform such covenant or agreement, as applicable, are not cured or cannot be cured within certain specified time periods, (iv) subject to certain limited exceptions, by either ARYA or the Company if the Closing has not occurred by March 29, 2022, (v) by either ARYA or the Company if certain required approvals are not obtained from ARYA shareholders after the conclusion of a meeting of ARYA’s shareholders held for such purpose at which such shareholders voted on such approvals and (vi) by either ARYA or the Company, if any governmental entity of competent jurisdiction shall have issued an order permanently enjoining or prohibiting the transactions contemplated under the Business Combination Agreement and such order shall have become final and nonappealable.

 

 

 

 

If the Business Combination Agreement is validly terminated, none of the parties to the Business Combination Agreement will have any liability or any further obligation under the Business Combination Agreement, except in the case of a willful and material breach or Fraud (as defined in the Business Combination Agreement) and for customary obligations that survive the termination thereof (such as confidentiality obligations).

 

A copy of the Business Combination Agreement is filed with this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein by reference, and the foregoing description of the Business Combination Agreement is qualified in its entirety by reference thereto.

 

Sponsor Letter Agreement

 

Concurrently with the execution of the Business Combination Agreement, (i) ARYA, (ii) ARYA Sponsor, (iii) each other holder of Class B ordinary shares of ARYA (the “Other Class B Shareholders” and with ARYA Sponsor, the “Class B Shareholders”), (iv) each of Joseph Edelman, Adam Stone, Michael Altman and Konstantin Poukalov (with the Class B Shareholders, the “Insiders”) and (v) Amicus GT entered into the Sponsor Letter Agreement (the “Sponsor Letter Agreement”), pursuant to which, among other things, (i) each Class B Shareholder agreed to vote in favor of each of the transaction proposals to be voted upon at the meeting of ARYA shareholders, including approval of the Business Combination Agreement and the transactions contemplated thereby, (ii) each Class B Shareholder agreed to waive any adjustment to the conversion ratio set forth in the governing documents of ARYA or any other anti-dilution or similar protection with respect to the Class B ordinary shares (whether resulting from the transactions contemplated by the Subscription Agreements (as defined below) or otherwise), (iii) each of the Insiders and ARYA agreed to terminate certain existing agreements or arrangements and (iv) each Class B Shareholder agreed to be bound by certain transfer restrictions with respect to his, her or its shares in ARYA prior to the Closing, in each case, on the terms and subject to the conditions set forth in the Sponsor Letter Agreement.

 

A copy of the Sponsor Letter Agreement is filed with this Current Report on Form 8-K as Exhibit 10.2 and is incorporated herein by reference, and the foregoing description of the Sponsor Letter Agreement is qualified in its entirety by reference thereto.

 

Amicus PIPE Investment (Private Placement)

 

On September 29, 2021, the Company entered into a securities purchase agreement (the “Redmile Purchase Agreement”) with certain entities affiliated with Redmile Group LLC (the “Redmile Purchasers”), a securities purchase agreement (the “Perceptive Purchase Agreement”) with Perceptive Life Sciences Master Fund, Ltd. (the “Perceptive PIPE Investor”) and a securities purchase agreement (the “Third Party Purchase Agreement”, together with the Redmile Purchase Agreement and the Perceptive Purchase Agreement, the “Purchase Agreements”) with the purchasers set forth on Schedule A attached thereto (together with the Redmile Purchasers and the Perceptive PIPE Investor, the “Purchasers”) for the private placement (the “Amicus Private Placement”) of an aggregate of (a) 11,296,660 shares of the Company’s common stock, at a purchase price of $10.18 per share (the “Common Stock”) and (b) pre-funded warrants to purchase an aggregate of 8,349,705 shares of Common Stock (the “Pre-Funded Warrants”), at a purchase price of $10.17 per Pre-Funded Warrant. The Purchase Agreements are substantially similar, with the principal differences between the three Purchase Agreements being that the Redmile Purchase Agreement provides for the sale of Pre-Funded Warrants, and the Redmile Purchase Agreement and the Perceptive Purchase Agreement each provide for a lock-up period of nine (9) months while the Third Party Purchase Agreement provides for a lock-up period of 60 days.

 

Gross proceeds from the Amicus Private Placement are expected to be approximately $199,916,502.13.

 

Each Pre-Funded Warrant has an initial exercise price of $0.01 per share and is exercisable at any time after its original issuance at the option of each holder, in such holder’s discretion, by (i) payment in full in immediately available funds of the initial exercise price for the number of shares of Common Stock purchased upon such exercise or (ii) a cashless exercise, in which case the holder would receive upon such exercise the net number of shares of Common Stock determined according to the formula set forth in the Pre-Funded Warrant.

 

 

 

 

The Pre-Funded Warrants may not be exercised if, upon giving effect to such exercise, (i) the aggregate number of shares of Common Stock beneficially owned by the holder together with such holder’s affiliates, any person having beneficial ownership of shares of Common Stock owned by the holder as calculated in accordance with Section 13(d) of the Exchange Act, or any persons acting as a Section 13(d) group together with such holder or any of such holder’s affiliates (any such person other than holder, including any group of which Holder is a member, an “Additional Restricted Ownership Person”) would exceed 9.99% of the number of shares of Common Stock outstanding immediately after giving effect to the exercise, or (ii) the combined voting power of the Company’s securities beneficially owned by the holder any Additional Restricted Ownership Person would exceed 9.99% of the combined voting power of all of the Company’s securities then outstanding immediately after giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of the Pre-Funded Warrants. However, any holder may increase or decrease such percentage, but not in excess of 19.99%, upon at least 61 days’ prior notice from the holder to the Company.

 

In the event of certain fundamental transactions, the holders of the Pre-Funded Warrants will be entitled to receive upon exercise of the Pre-Funded Warrants the kind and amount of securities, cash or other property that the holders would have received had they exercised the Pre-Funded Warrants immediately prior to such fundamental transaction without regard to any limitations on exercise contained in the Pre-Funded Warrants.

 

The Purchase Agreements contain customary indemnification provisions, representations, warranties and covenants made by the Company. In addition, pursuant to the terms of the Purchase Agreements, each Purchaser has agreed to a “lock-up” period that generally prohibits, without the prior written consent of the Company, the sale, transfer, pledge or other disposition of securities of the Company through the period ending nine (9) months (in the case of the Redmile Purchase Agreement and the Perceptive Purchase Agreement) or sixty (60) days (in the case of the Third Party Purchase Agreement) from the date of the applicable Purchase Agreement.

 

In connection with the Amicus Private Placement, the Company has agreed to file a registration statement within 50 days after the closing (the “Initial Registration Statement”) for purposes of registering the shares of Common Stock and shares of Common Stock underlying the Pre-Funded Warrants.

 

The foregoing description of the Purchase Agreements and the Pre-Funded Warrants does not purport to be complete and is qualified in its entirety by reference to the copies of the Securities Purchase Agreements, which are filed as Exhibit 10.3, Exhibit 10.4 and Exhibit 10.5 to this Current Report on Form 8-K, and the copy of the form of Pre-Funded Warrant that was purchased by each Redmile Purchaser, which is filed as Exhibit 4.1 to this Current Report on Form 8-K.

 

The representations, warranties and covenants contained in the Purchase Agreements were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to the Purchase Agreements, and may be subject to limitations agreed upon by the contracting parties. Accordingly, the Purchase Agreements are incorporated herein by reference only to provide investors with information regarding the terms of the Purchase Agreements, and not to provide investors with any other factual information regarding the Company or its business, and should be read in conjunction with the disclosures in the Company’s periodic reports and other filings with the SEC.

 

New Caritas PIPE Investment (Private Placement)

 

Concurrently with the execution of the Business Combination Agreement, ARYA entered into subscription agreements (the “Subscription Agreements”) with certain investors, including, among others, the Perceptive PIPE Investor, a fund managed by Perceptive Advisors, an affiliate of ARYA Sponsor and certain additional third party investors. Pursuant to the Subscription Agreements, investors agreed to subscribe for and purchase, and ARYA agreed to issue and sell to such investors, on the Closing Date (as defined in the Business Combination Agreement) immediately prior to the Closing (as defined in the Business Combination Agreement), an aggregate of 20,150,000 shares of ARYA Common Stock for a purchase price of $10.00 per share, for aggregate gross proceeds of $201,500,000 (the “Caritas PIPE Investment”).

 

The closing of the Caritas PIPE Investment is contingent upon, among other things, the substantially concurrent consummation of the Business Combination. The Subscription Agreements provide that ARYA will grant the investors in the Caritas PIPE Investment certain customary registration rights.

 

 

 

 

Investor Rights Agreement

 

Concurrently with the execution of the Business Combination Agreement, ARYA, Caritas, the Perceptive PIPE Investor, ARYA Sponsor, the Other Class B Shareholders and Amicus GT entered into an investor rights agreement (the “Investor Rights Agreement”) pursuant to which, among other things, the Perceptive PIPE Investor, ARYA Sponsor, the Company and the Other Class B Shareholders (i) each agreed not to effect any sale or distribution of any equity securities of New Caritas (and, in the case of the Amicus GT, the Units) held by any of them during the one-year lock-up period described therein and (ii) were granted certain registration rights with respect to their Registrable Securities (as defined in the Investor Rights Agreement), in each case, on the terms and subject to the conditions set forth therein.

 

A copy of the Investor Rights Agreement is filed with this Current Report on Form 8-K as Exhibit 10.6 and is incorporated herein by reference, and the foregoing description of the Investor Rights Agreement is qualified in its entirety by reference thereto.

 

Director Nomination Agreement

 

Concurrently with the Closing, ARYA, ARYA Sponsor and the Company will enter into a director nomination agreement (the “Director Nomination Agreement”), pursuant to which, among other things, (i) the Company will be entitled to ongoing director designation rights with respect to the two director positions for which the Company initially designated directors in connection with the Closing, subject to customary fall-away thresholds based on the Company’s continued ownership of New Caritas and (ii) ARYA Sponsor will be entitled to ongoing director designation rights with respect to the one director position for which ARYA Sponsor initially designated a director in connection with the Closing, subject to customary fall-away thresholds based on ARYA Sponsor’s continued ownership of New Caritas.

 

Co-Development and Collaboration Agreement

 

Concurrently with the Closing, the Company and Caritas will enter into a co-development and commercialization agreement (the “Co-Development and Collaboration Agreement”) pursuant to which, among other things, (i) the Company and Caritas will collaborate in the research and development of gene therapy product candidates for the treatment of Fabry disease and Pompe diseases, (ii) Caritas will grant the Company an exclusive license under Caritas’ intellectual property to clinically develop and commercialize certain existing and future gene therapy candidates and (iii) Caritas will grant the Company a right of first negotiation for the Company to negotiate an exclusive license to develop and commercialize therapeutic products incorporating gene therapy technologies being developed by Caritas for certain muscular dystrophy indications, in each case, subject to the terms and conditions therein.

 

Transition Services Agreement

 

Concurrently with the Closing, the Company and Caritas will enter into a transition services agreement pursuant to which, among other things, (i) the Company and/or one or more of its affiliates will provide certain transitional services to to Caritas and/or one or more of its affiliates and (ii) Caritas and/or one or more its affiliates will provide certain transitional services to the Company and/or one or more of its affiliates, in each case, in order to facilitate the orderly transition of the Company’s gene therapy business to Caritas.

 

Amended Hayfin Loan Agreement

 

In connection with the execution of the Business Combination Agreement, Hayfin Capital Management (“Hayfin”) and the Company amended the existing loan agreement governing the Company’s $400 million Senior Secured Term Loan due 2026, dated as of July 17, 2020, by and among the Company, Hayfin and the other parties thereto, for the purpose of permitting the transactions contemplated by the Business Combination Agreement.

 

A copy of the Limited Consent and Amendment No. 1 to Loan Agreement is filed with this Current Report on Form 8-K as Exhibit 10.7 and is incorporated herein by reference, and the foregoing description of the Limited Consent and Amendment No. 1 to Loan Agreement is qualified in its entirety by reference thereto.

 

 

 

 

Item 3.02 Unregistered Sales of Equity Securities.

 

The issuance of the 11,296,660 shares of Common Stock and the Pre-Funded Warrants to purchase 8,349,705 shares of Common stock constituting the Amicus Private Offering was exempt from registration under Section 4(2) of the Securities Act of 1933, as amended, or Regulation D thereunder, as a transaction by an issuer not involving a public offering. Each Purchaser has represented that it is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D under the Act.

 

Item 1.01 of this Current Report on Form 8-K contains a more detailed description of the issuance of shares of Common Stock and Pre-Funded Warrants to purchase shares of Common Stock and is incorporated into this Item 3.02 by reference.

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

John F. Crowley

 

In connection with the Business Combination, John F. Crowley, who has served as a Director, Chairman and Chief Executive Officer of the Company since February 2010 and Chief Executive Officer since January 2005 (except for a period from April 2011 through August 2011 during which time he served as Executive Chairman), will resign as Chief Executive Officer and Director of the Company and is expected to enter into an employment agreement with New Caritas pursuant to which he will become the Chief Executive Officer of New Caritas effective as of, and contingent upon, the Closing. Mr. Crowley is also expected to be nominated to serve as a director of New Caritas.

 

Bradley L. Campbell to become Company Chief Executive Officer

 

In connection with the Business Combination and the expected departure of John F. Crowley as the Chief Executive Officer of the Company, Bradley L. Campbell, who has served as a member of the Company’s board of directors since June 2018 and as President and Chief Operating Officer since January 2015, and Chief Operating Officer since December 2013, has agreed to enter into an employment agreement with the Company (the “CEO Employment Agreement”) at the Closing pursuant to which Mr. Campbell will become the Chief Executive Officer of the Company for a term that will commence at the Closing and continue until Mr. Campbell’s employment is terminated by either Mr. Campbell or the Company. Upon its execution in connection with the Closing, the CEO Employment Agreement will supersede Mr. Campbell’s prior employment agreement with the Company.

 

Under the terms of the CEO Employment Agreement, Mr. Campbell will be (i) entitled to an initial annual base salary of $625,000; (ii) eligible to receive an annual cash bonus with a target opportunity of 100% of base salary, with the actual amount determined by the compensation committee of the Company’s board of directors. Mr. Campbell will also receive a one-time promotion grant of Company equity valued at $2 million, comprised of 50% Company stock options and 50% restricted stock units, which will vest (subject to continued employment) in accordance with the terms and conditions of the applicable Company equity plans.

 

The CEO Employment Agreement provides that if Mr. Campbell’s employment is terminated for any reason, Mr. Campbell will be entitled to (1) all accrued but unpaid base salary, (2) unreimbursed expenses and (3) other accrued obligations under the Company’s employee plans ((1)-(3), collectively, “CEO Accrued Amounts”). If Mr. Campbell’s employment is terminated by the Company without Cause (as defined in the CEO Employment Agreement) and not within 12 months after a “Change in Control Event” (as defined in the CEO Employment Agreement), Mr. Campbell will be entitled to (1) the CEO Accrued Amounts, (2) payment of an amount equal to his then current base salary (generally payable over 18 months following termination), (3) payment of a bonus equal to 150% of the target bonus for the calendar year in which such termination occurs pro-rated for the number of days actually worked in the year of termination (generally payable within 75 days following termination), (4) the accelerated vesting of any Company stock options and restricted Company stock units held by Mr. Campbell that were scheduled to vest within 12 months following such termination and (5) the continuation of employee benefits plans for a period of 18 months after the date of termination ((2)-(5), collectively, the “CEO Severance Benefits”). Under the terms of the CEO Employment Agreement, if Mr. Campbell’s employment is terminated by the Company without Cause or by Mr. Campbell for Good Reason (as defined in the agreement) within 12 months of a Change in Control Event (as defined in the agreement), Mr. Campbell will be entitled to (1) the CEO Accrued Amounts and (2) payment of an amount equal to 2 times his then current base salary (generally payable over 24 months following termination), (3) a lump sum payment of an amount equal to 200% of the target bonus for the calendar year in which such termination occurs (generally payable within 75 days following termination), (4) the accelerated vesting of any Amicus stock options and restricted stock grants held by Mr. Campbell; and (5) the continuation of employee benefits plans for a period of 24 months after the date of termination ((2)-(5), collectively, the “CEO Change in Control Severance Benefits”). The payment of CEO Severance Benefits or CEO Change in Control Severance Benefits are contingent on Mr. Campbell signing and not revoking a release of claims in favor of the Company.

 

 

 

 

Strategic Advisor Agreement with John F. Crowley

 

The Company has also agreed to enter into a Strategic Advisor Agreement with John F. Crowley (the “Strategic Advisor Agreement”) in connection with the consummation of the Business Combination, pursuant to which, following the Closing, Mr. Crowley will provide services to the Company as Chairman Emeritus and Chief Strategic Advisor (or in such other position as may be mutually agreed upon by the parties) for an initial term of two years (which term may be extended for an additional year by mutual agreement). Upon its execution in connection with the Closing, the Strategic Advisor Agreement will supersede Mr. Crowley’s prior employment agreement with the Company. As consideration for the services to be provided under the Strategic Advisor Agreement, the Company will pay Mr. Crowley an annual base salary of $300,000 (subject to increase). Mr. Crowley will not be eligible to participate in the Company’s bonus program. Under the Strategic Advisor Agreement, Mr. Crowley will be eligible to receive a grant of restricted stock units with respect to Amicus common stock with a value of $1.4 million at grant, vesting as to 50% of the units on each of the first two anniversaries of the date of grant, generally subject to continued service with the Company.

 

The Strategic Advisor Agreement provides that in the event of a termination of Mr. Crowley’s employment by the Company during the term without “Cause” (as defined in the Strategic Advisor Agreement), Mr. Crowley will be entitled to accrued payments and benefits under the agreement as well as a severance payment equal to 1.5 times his then-current annual base salary, plus accelerated vesting of unvested equity compensation from the Company and certain continued medical benefits for thirty-six months following termination. If such termination (or a resignation for “Good Reason” (as defined in the Strategic Advisor Agreement)) occurs during the twelve month period following a Change in Control Event (as defined in the Strategic Advisor Agreement), then the severance payment will be 2 times his then current annual base salary.

 

The Strategic Advisor Agreement also provides that if the agreement is not extended for an additional year beyond the initial two year term, Mr. Crowley and his eligible dependents will remain eligible to continue their participation in any Company group health plan in which they are then participating for a period of twelve additional months, and that the Company will pay the full premiums otherwise payable for such coverage during such twelve month period. The Company will also allow Mr. Crowley and his dependents to continue to participate in those plans at his expense under COBRA for a period of twenty-nine months following the end of his employment or the twelve month period described above, as the case may be.

 

Samantha Prout

 

In connection with the Business Combination, Samantha Prout, who has served as Vice President and Global Controller since March of 2020, and Principal Accounting Officer of the Company since June of 2018, will resign as Vice President and Global Controller and has agreed to enter into an employment agreement with New Caritas at the Closing pursuant to which Ms. Prout will become the SVP Finance, Principal Accounting Officer & Principal Financial Officer of New Caritas effective as of, and contingent upon, the Closing. Effective September 29, 2021, Ms. Prout will no longer serve as Principal Accounting Officer of the Company as Daphne Quimi, Chief Financial Officer, will serve as both Principal Financial Officer and Principal Accounting Officer.

 

Hung Do Amendment

 

Effective September 28, 2021, Hung Do, who has served as Chief Science Officer of the Company since July 2015, entered into amendment (the “Do Amendment”) to his employment agreement, dated February 18, 2020. Under the terms of the Do Amendment, Dr. Do will no longer serve as the Company’s Chief Scientific Officer but will be named Chief Scientific Advisor (“CSA”). As CSA, Dr. Do will continue to support the Company as described in Exhibit C-1 to the Do Amendment and may pursue other opportunities, including with M6P Therapeutics, provided they do not constitute “Competitive Activities” as described in the Do Amendment. In light of these reduced duties and responsibilities as CSA and a part-time employee, as of the effective date Dr. Do will receive one-half of his current base salary, and, as an employee, continue to be eligible to participate in the Company’s benefit plans and remain eligible for equity grants under the Company’s Amended and Restated 2007 Equity Incentive Plan.

 

A copy of the Do Amendment is filed with this Current Report on Form 8-K as Exhibit 10.8 and is incorporated herein by reference, and the foregoing description of the Do Amendment is qualified in its entirety by reference thereto.

 

Item 7.01 Regulation FD Disclosure.

 

On September 29, 2021, ARYA and the Company issued a press release announcing their entry into the Business Combination Agreement. The press release is attached hereto as Exhibit 99.1 and incorporated by reference herein.

 

 

 

 

Furnished as Exhibits 99.2 and 99.3 hereto and incorporated into this Item 7.01 by reference is the investor presentation that ARYA and the Company have prepared for use in connection with the announcement of the Business Combination and a transcript of the investor presentation.

 

The foregoing (including Exhibits 99.1, 99.2 and 99.3) is being furnished pursuant to Item 7.01 and will not be deemed to be filed for purposes of Section 18 of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise be subject to the liabilities of that section, nor will it be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange Act.

 

Forward Looking Statements

 

This Form 8-K contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 relating to the business combination, development of Caritas’ product candidates, preclinical and clinical development of our product candidates, the timing and reporting of results from preclinical studies and clinical trials, the prospects and timing of the potential regulatory approval of our product candidates, commercialization plans, manufacturing plans and financing plans. The inclusion of forward-looking statements should not be regarded as a representation by us that any of our plans or Caritas’ plans will be achieved. Any or all of the forward-looking statements in this Form 8-K may turn out to be wrong and can be affected by inaccurate assumptions we might make or by known or unknown risks and uncertainties. For example, with respect to statements regarding the goals, progress, timing, and outcomes of discussions with regulatory authorities, and in particular the potential goals, progress, timing, and results of preclinical studies and clinical trials, and revenue goals, including as they are impacted by COVID-19 related disruption, are based on current information. The potential impact on operations and/or revenue from the COVID-19 pandemic is inherently unknown and cannot be predicted with confidence and may cause actual results and performance to differ materially from the statements in this release, including without limitation, because of the impact on general political and economic conditions, including as a result of efforts by governmental authorities to mitigate COVID-19, such as travel bans, shelter in place orders and third-party business closures and resource allocations, manufacturing and supply chain disruptions and limitations on patient access to commercial or clinical product or to treatment sites. In addition to the impact of the COVID-19 pandemic, actual results may differ materially from those set forth in this release due to the risks and uncertainties inherent in our business, including, without limitation: the potential that the transaction may not be completed in a timely manner or at all, which may adversely affect the price of our securities; the potential that the proposed transaction disrupts our current plans and operations and potential difficulties in our employee retention as a result of the transaction; the potential that results of clinical or preclinical studies indicate that the product candidates are unsafe or ineffective; the potential that it may be difficult to enroll patients in clinical trials; the potential that regulatory authorities, including the FDA, EMA, and PMDA, may not grant or may delay approval for our product candidates; the potential that Caritas may not be successful in maintaining or establishing collaborations, which could adversely affect its ability to develop products; substantial competition in the rapidly evolving field of gene therapy, which may result in others discovering, developing or commercializing products before or more successfully than Caritas; the potential that regulatory authorities approve biosimilar products with claims that compete with any of Caritas’ product candidates; the potential that preclinical and clinical studies could be delayed due to the identification of serious side effects or other safety issues; the potential that we or Caritas may not be able to manufacture or supply sufficient clinical or commercial products; the potential that Caritas may become involved in product liability lawsuits and in lawsuits to protect or enforce intellectual property rights, which could be expensive and time-consuming, and could result in substantial liabilities and the impairment of commercialization efforts of product candidates; and the potential that we or Caritas will need additional funding to complete all of our respective studies, commercialization and manufacturing. In addition, all forward-looking statements are subject to other risks detailed in our Annual Report on Form 10-K for the year ended December 31, 2020 and Quarterly Report 10-Q for the quarter ended June 30, 2021. You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof. All forward-looking statements are qualified in their entirety by this cautionary statement, and we undertake no obligation to revise or update this news release to reflect events or circumstances after the date hereof.

 

 

 

 

Participants in the Solicitation

 

The Company and its respective directors and executive officers under SEC rules, may be deemed to be participants in the solicitation of proxies of ARYA’s shareholders in connection with the Business Combination. Investors and security holders may obtain more detailed information regarding the names and interests in the Business Combination of ARYA’s directors and officers in ARYA’s filings with the SEC, including the Registration Statement to be filed with the SEC by ARYA, which will include the proxy statement of ARYA for the Business Combination, and such information and names of such directors and executive officers and their interests in the Business Combination.

 

Item 8.01Other Events.

 

On September 29, 2021, the Company issued a press release announcing that the U.S. Food and Drug Administration (FDA) has accepted the Company’s Biologics License Application (BLA) for cipaglucosidase alfa and the New Drug Application (NDA) for miglustat for AT-GAA, the Company’s investigational two-component therapy for the treatment of Pompe disease. A copy of the press release is attached hereto as Exhibit 99.4 and incorporated by reference herein.

 

Item 9.01.Financial Statements and Exhibits.

 

 (d) Exhibits.

 

Exhibit No. Description
4.1 Form of Pre-Funded Warrant
   
10.1* Business Combination Agreement, dated as of September 29, 2021, by and among ARYA Sciences Acquisition Corp IV, Amicus Therapeutics, Inc., Amicus GT Holdings, Inc. and Caritas Therapeutics, LLC
   
10.2 Sponsor Letter Agreement, dated as of September 29, 2021, by and among ARYA Sciences Acquisition Corp IV, ARYA Sciences Holdings IV, Amicus GT Holdings, Inc. and the other parties thereto
   
10.3 Securities Purchase Agreement, dated September 29, 2021, by and between Amicus Therapeutics, Inc. and Redmile Group LLC
   
10.4 Securities Purchase Agreement, dated September 29, 2021, by and between Amicus Therapeutics, Inc. and Perceptive Life Sciences Master Fund, Ltd.
   
10.5 Securities Purchase Agreement, dated September 29, 2021, by and among Amicus Therapeutics, Inc. and the Purchasers identified on the signature pages thereto
   
10.6 Investor Rights Agreement, dated September 29, 2021, by and among ARYA Sciences Acquisition Corp IV, Caritas Therapeutics, LLC, Perceptive Life Sciences Master Fund, Ltd., ARYA Sciences Holdings IV, Amicus GT Holdings, Inc. and the other parties thereto
   
10.7 Limited Consent and Amendment No. 1 to Loan Agreement
   
10.8 Amendment to Employment and Confidentiality Agreements, dated September 28, 2021, by and between Amicus Therapeutics, Inc. and Hung Do
   
99.1 Press Release of ARYA Sciences Acquisition Corp IV and Amicus Therapeutics, Inc. dated September 29, 2021
   
99.2 Investor Presentation of Caritas Therapeutics, Inc., dated September 29, 2021
   
99.3 Transcript of Conference Call, dated September 29, 2021
   
99.4 Press Release of Amicus Therapeutics, Inc. dated September 29, 2021
   
  * Certain of the exhibits and schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish a copy of all omitted exhibits and schedules to the SEC upon its request.

 

 

 

 

SIGNATURE

 

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

 

 

Dated: September 29, 2021 AMICUS THERAPEUTICS, INC.

 

  By: /s/ Ellen S. Rosenberg  
  Name: Ellen S. Rosenberg
  Title: Chief Legal Officer and Corporate Secretary

 

 

 

 

EXHIBIT 4.1

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.

 

AMICUS THERAPEUTICS, INC.

 

FORM OF PRE-FUNDED WARRANT TO PURCHASE COMMON STOCK

 

Number of Shares: [•]
(subject to adjustment)

 

Warrant No. [•] Original Issue Date: [•]

 

Amicus Therapeutics, Inc., a Delaware corporation (the “Company”), hereby certifies that, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, [•] or its registered assigns (the “Holder”), is entitled, subject to the terms set forth below, to purchase from the Company up to a total of [•] shares of common stock, $0.01 par value per share (the “Common Stock”), of the Company (each such share, a “Warrant Share” and all such shares, the “Warrant Shares”) at an exercise price per share equal to $0.01 per share (as adjusted from time to time as provided in Section 10 herein, the “Exercise Price”) upon surrender of this Warrant to Purchase Common Stock (including any Warrants to Purchase Common Stock issued in exchange, transfer or replacement hereof, the “Warrant”) at any time and from time to time on or after the date hereof (the “Original Issue Date”), subject to the following terms and conditions:

 

1.                  Definitions. For purposes of this Warrant, the following terms shall have the following meanings:

 

(a)               Affiliate” means any Person directly or indirectly controlled by, controlling or under common control with, a Holder, as such terms are used in and construed under Rule 405 under the Securities Act, but only for so long as such control shall continue. For purposes of this definition, “control” (including, with correlative meanings, “controlled by,” “controlling” and “under common control with”) means, with respect to a Person, possession, direct or indirect, of (a) the power to direct or cause direction of the management and policies of such Person (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise), or (b) at least 50% of the voting securities (whether directly or pursuant to any option, warrant or other similar arrangement) or other comparable equity interests.

 

 

 

(b)               Commission” means the United States Securities and Exchange Commission.

 

(c)               Closing Sale Price” means, for any security as of any date, the last trade price for such security on the Principal Trading Market for such security, as reported by Bloomberg L.P., or, if such Principal Trading Market begins to operate on an extended hours basis and does not designate the last trade price, then the last trade price of such security immediately prior to 4:00 P.M., New York City time, as reported by Bloomberg L.P., or if the security is not listed for trading on a national securities exchange or other trading market on the relevant date, the last quoted bid price for the security in the over-the-counter market on the relevant date as reported by OTC Markets Group Inc. (or a similar organization or agency succeeding to its functions of reporting prices). If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then the Board of Directors of the Company shall use its good faith judgment to determine the fair market value. The Board of Directors’ determination shall be binding upon all parties absent demonstrable error. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during the applicable calculation period.

 

(d)               Principal Trading Market” means the national securities exchange or other trading market on which the Common Stock is primarily listed on and quoted for trading, which, as of the Original Issue Date, shall be the Nasdaq Global Market.

 

(e)               Securities Act” means the Securities Act of 1933, as amended.

 

(f)                Trading Day” means any weekday on which the Principal Trading Market is open for trading. If the Common Stock is not listed or admitted for trading, “Trading Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in New York City are authorized or required by law or other governmental action to close.

 

(g)               Transfer Agent” means American Stock Transfer & Trust Company, LLC, the Company’s transfer agent and registrar for the Common Stock, and any successor appointed in such capacity.

 

2.                  Warrant Register. The Company shall register ownership of this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder (which shall include the initial Holder or, as the case may be, any assignee to which this Warrant is assigned hereunder) from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.

 

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3.                  Registration of Transfers. Subject to compliance with all applicable securities laws and the rules of the Principal Trading Market, the Company shall, or will cause its Transfer Agent to, register the transfer of all or any portion of this Warrant in the Warrant Register, upon surrender of this Warrant and delivery of a written assignment of this Warrant substantially in the form attached hereto as Exhibit A, and payment for all applicable transfer taxes (if any) by the Holder or any subsequent holder. Upon any such transfer, a new warrant to purchase Common Stock in substantially the form of this Warrant (any such new warrant, a “New Warrant”) evidencing the portion of this Warrant so transferred shall be issued to the transferee, and a New Warrant evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the transferring Holder. The acceptance of the New Warrant by the transferee thereof shall be deemed the acceptance by such transferee of all of the rights and obligations in respect of the New Warrant that the Holder has in respect of this Warrant. The Company shall, or will cause its Transfer Agent to, prepare, issue and deliver at the Company’s own expense any New Warrant under this Section 3. Until due presentment for registration of transfer, the Company may treat the registered Holder hereof as the owner and holder for all purposes, and the Company shall not be affected by any notice to the contrary.

 

4.                  Transfer Restrictions. If this Warrant is not registered pursuant to an effective registration statement under the Securities Act and under applicable state securities or blue sky laws at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the Company may require, as a condition of allowing such transfer, that (i) the Holder or transferee of this Warrant, as the case may be, furnish to the Company a written opinion of counsel (which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect that such transfer may be made without registration under the Securities Act and under applicable state securities or blue sky laws, and (ii) the Holder or transferee execute and deliver to the Company an investment letter in form and substance acceptable to the Company, and (iii) the transferee be an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), or (a)(8) promulgated under the Securities Act or a “qualified institutional buyer” as defined in Rule 144A(a) promulgated under the Securities Act.

 

5.                  Exercise and Duration of Warrants.

 

(a)               All or any part of this Warrant shall be exercisable by the registered Holder in any manner permitted by this Warrant at any time and from time to time on or after the Original Issue Date, subject to Section 12 below.

 

(b)               The Holder may exercise this Warrant by delivering to the Company (i) an exercise notice, in the form attached as Exhibit B hereto (the “Exercise Notice”), completed and duly signed, and (ii) payment of the Exercise Price for the number of Warrant Shares as to which this Warrant is being exercised (which may take the form of a “cashless exercise” if so indicated in the Exercise Notice pursuant to Section 11 below). The date on which such exercise notice is delivered to the Company (as determined in accordance with the notice provisions hereof) is an “Exercise Date.” The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. Execution and delivery of the Exercise Notice shall have the same effect as cancellation of the original Warrant and issuance of a New Warrant evidencing the right to purchase the remaining number of Warrant Shares, if any. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.

 

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6.                  Delivery of Warrant Shares.

 

(a)               Upon exercise of this Warrant, the Company shall promptly (but in no event later than three (3) Trading Days after the Exercise Date), upon the request of the Holder, cause the Transfer Agent to credit such aggregate number of shares of Common Stock to which the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s balance account with The Depository Trust Company (“DTC”) through its Deposit Withdrawal Agent Commission system or if the Transfer Agent is not participating in the Fast Automated Securities Transfer Program (the “FAST Program”) or if the certificates are required to bear a legend regarding restriction on transferability, a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of shares of Common Stock to which the Holder is entitled pursuant to such exercise in electronic book entry form to the account of such Holder or, upon request of the Holder, by physical delivery to the address specified in the Exercise Notice. The Holder, or any natural person or legal entity (each, a “Person”) so designated by the Holder to receive Warrant Shares, shall be deemed to have become the holder of record of such Warrant Shares as of the Exercise Date, irrespective of the date such Warrant Shares are credited to the Holder’s DTC account or the date of delivery of the certificates evidencing such Warrant Shares, as the case may be.

 

(b)               If by the close of the third (3rd) Trading Day after the Exercise Date, the Company fails to deliver to the Holder a certificate representing the required number of Warrant Shares in the manner required pursuant to Section 6(a) or fails to cause the Transfer Agent to credit the Holder’s DTC account for such number of Warrant Shares to which the Holder is entitled, and if after such third (3rd) Trading Day and prior to the receipt of such Warrant Shares, the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s written request and in the Holder’s sole discretion, either (i) pay in cash to the Holder an amount equal to the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased, at which point the Company’s obligation to deliver such certificate (and to issue such Warrant Shares) or to cause the Holder’s DTC account to be credited for such Warrant Shares shall terminate or (ii) promptly deliver to the Holder a certificate or certificates representing such Warrant Shares and pay cash to the Holder in an amount equal to the excess (if any) of Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased in the Buy-In over the product of (A) the number of shares of Common Stock purchased in the Buy-In, times (B) the Closing Sale Price of a share of Common Stock on the Exercise Date.

 

(c)               To the extent permitted by law and subject to Section 6(b), the Company’s obligations to cause the Transfer Agent to issue and deliver Warrant Shares in accordance with and subject to the terms hereof (including the limitations set forth in Section 12 below) are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any other circumstance that might otherwise limit such obligation of the Company to the Holder in connection with the issuance of Warrant Shares. Subject to Section 6(b), nothing herein shall limit the Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.

 

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7.                  Charges, Taxes and Expenses. Issuance and delivery of certificates for shares of Common Stock, if any, upon exercise of this Warrant shall be made without charge to the Holder for any issue or transfer tax, transfer agent fee or other incidental tax or expense (excluding any applicable stamp duties) in respect of the issuance of such certificates, all of which taxes and expenses shall be paid by the Company; provided, however, that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the registration of any certificates for Warrant Shares or the Warrants in a name other than that of the Holder or an Affiliate thereof. The Holder shall be responsible for all other tax liability that may arise as a result of holding or transferring this Warrant or receiving Warrant Shares upon exercise hereof.

 

8.                  Replacement of Warrant. If this Warrant is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction (in such case) and, in each case, a customary and reasonable indemnity and surety bond, if requested by the Company. Applicants for a New Warrant under such circumstances shall also comply with such other reasonable regulations and procedures and pay such other reasonable third-party costs as the Company may prescribe. If a New Warrant is requested as a result of a mutilation of this Warrant, then the Holder shall deliver such mutilated Warrant to the Company as a condition precedent to the Company’s obligation to issue the New Warrant.

 

9.                  Reservation of Warrant Shares. The Company covenants that it will, at all times while this Warrant is outstanding, reserve and keep available out of the aggregate of its authorized but unissued and otherwise unreserved Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise of this Warrant as herein provided, the number of Warrant Shares that are initially issuable and deliverable upon the exercise of this entire Warrant, free from preemptive rights or any other contingent purchase rights of persons other than the Holder (taking into account the adjustments and restrictions of Section 10). The Company covenants that all Warrant Shares so issuable and deliverable shall, upon issuance and the payment of the applicable Exercise Price in accordance with the terms hereof, be duly and validly authorized, issued and fully paid and non-assessable. The Company will take all such action as may be reasonably necessary to assure that such shares of Common Stock may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of any securities exchange or automated quotation system upon which the Common Stock may be listed. The Company further covenants that it will not, without the prior written consent of the Holder, take any actions to increase the par value of the Common Stock at any time while this Warrant is outstanding.

 

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10.              Certain Adjustments. The Exercise Price and number of Warrant Shares issuable upon exercise of this Warrant are subject to adjustment from time to time as set forth in this Section 10.

 

(a)               Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a distribution on any class of capital stock issued and outstanding on the Original Issue Date and in accordance with the terms of such stock on the Original Issue Date that is payable in shares of Common Stock, (ii) subdivides its outstanding shares of Common Stock into a larger number of shares of Common Stock, (iii) combines its outstanding shares of Common Stock into a smaller number of shares of Common Stock or (iv) issues by reclassification of shares of capital stock any additional shares of Common Stock of the Company, then in each such case the Exercise Price shall be multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately before such event and the denominator of which shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to clause (i) of this paragraph shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution, provided, however, that if such record date shall have been fixed and such dividend is not fully paid on the date fixed therefor, the Exercise Price shall be recomputed accordingly as of the close of business on such record date and thereafter the Exercise Price shall be adjusted pursuant to this paragraph as of the time of actual payment of such dividends. Any adjustment pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the effective date of such subdivision or combination.

 

(b)               Pro Rata Distributions. If the Company, at any time while this Warrant is outstanding, distributes to all holders of Common Stock for no consideration (i) evidences of its indebtedness, (ii) any security (other than a distribution of Common Stock covered by the preceding paragraph) (iii) rights or warrants to subscribe for or purchase any security, or (iv) cash or any other asset (in each case, a “Distribution”), other than a reclassification as to which Section 10(c) applies, then in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including the ownership limitation set forth in Section 12(a) hereof) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of Common Stock are to be determined for the participation in such Distribution (provided, however, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the ownership limitation set forth in Section 12(a) hereof, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until the earlier of (i) such time, if ever, as the delivery to such Holder of such portion would not result in the Holder exceeding the ownership limitation set forth in Section 12(a) hereof and (ii) such time as the Holder has exercised this Warrant.

 

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(c)               Fundamental Transactions. If, at any time while this Warrant is outstanding (i) the Company effects any merger or consolidation of the Company with or into another Person, in which the Company is not the surviving entity and in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) pursuant to any tender offer or exchange offer (whether by the Company or another Person) that is accepted by holders of capital stock tender shares representing more than 50% of the voting power of the capital stock of the Company and the Company or such other Person, as applicable, (iv) the Company consummates a stock purchase agreement or other business combination (including, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than the 50% of the voting power of the capital stock of the Company (except for any such transaction in which the stockholders of the Company immediately prior to such transaction maintain, in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by Section 10(a) above) (in any such case, a “Fundamental Transaction”), then following such Fundamental Transaction the Holder shall have the right to receive, upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been entitled to receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of the number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitations on exercise contained herein (the “Alternate Consideration”), and the Warrant will be deemed automatically exercised in full in exchange for such Alternate Consideration pursuant to the “cashless exercise” provisions in Section 11 below upon the consummation of the Fundamental Transaction.

 

(d)               Number of Warrant Shares. Simultaneously with any adjustment to the Exercise Price pursuant to Section 10 (including any adjustment to the Exercise Price that would have been effected but for the final sentence in this paragraph 10(d)), the number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, so that after such adjustment the aggregate Exercise Price payable hereunder for the increased or decreased number of Warrant Shares shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment. Notwithstanding the foregoing, in no event may the Exercise Price be adjusted below the par value of the Common Stock then in effect.

 

(e)               Calculations. All calculations under this Section 10 shall be made to the nearest one-hundredth of one cent or the nearest share, as applicable.

 

(f)                Notice of Adjustments. Upon the occurrence of each adjustment pursuant to this Section 10, the Company at its expense will, at the written request of the Holder, promptly compute such adjustment, in good faith, in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment, including a statement of the adjusted Exercise Price and adjusted number or type of Warrant Shares or other securities issuable upon exercise of this Warrant (as applicable), describing the transactions giving rise to such adjustments and showing in detail the facts upon which such adjustment is based. Upon written request, the Company will promptly deliver a copy of each such certificate to the Holder and to the Transfer Agent.

 

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(g)               Notice of Corporate Events. If, while this Warrant is outstanding, the Company (i) declares a dividend or any other distribution of cash, securities or other property in respect of its Common Stock, including, any granting of rights or warrants to subscribe for or purchase any capital stock of the Company or any subsidiary, (ii) authorizes or approves, enters into any agreement contemplating or solicits stockholder approval for any Fundamental Transaction or (iii) authorizes the voluntary dissolution, liquidation or winding up of the affairs of the Company, then, except if such notice and the contents thereof shall be deemed to constitute material non-public information, the Company shall deliver to the Holder a notice of such transaction at least ten (10) days prior to the applicable record or effective date on which a Person would need to hold Common Stock in order to participate in or vote with respect to such transaction; provided, however, that the failure to deliver such notice or any defect therein shall not affect the validity of the corporate action required to be described in such notice. In addition, if while this Warrant is outstanding, the Company authorizes or approves, enters into any agreement contemplating or solicits stockholder approval for any Fundamental Transaction contemplated by Section 10(c), other than a Fundamental Transaction under clause (iii) of Section 10(c), then, except if such notice and the contents thereof shall be deemed to constitute material non-public information, the Company shall deliver to the Holder a notice of such Fundamental Transaction at least ten (10) days prior to the date such Fundamental Transaction is consummated. Holder agrees to maintain any information disclosed pursuant to this Section 10(g) in confidence until such information is publicly available, and shall comply with applicable law with respect to trading in the Company’s securities following receipt any such information.

 

11.              Payment of Cashless Exercise Price. Notwithstanding anything contained herein to the contrary, the Holder may, in its sole discretion, satisfy its obligation to pay the Exercise Price through a “cashless exercise,” in which event the Company shall issue to the Holder the number of Warrant Shares in an exchange of securities effected pursuant to Section 3(a)(9) of the Securities Act as determined as follows:

 

X = Y [(A-B)/A]

 

where:

 

“X” equals the number of Warrant Shares to be issued to the Holder;

“Y” equals the total number of Warrant Shares with respect to which this Warrant is then being exercised;

“A” equals the Closing Sale Price per share of Common Stock as of the Trading Day on the date immediately preceding the Exercise Date; and

“B” equals the Exercise Price per Warrant Share then in effect on the Exercise Date.

 

For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and acknowledged that the Warrant Shares issued in such a “cashless exercise” transaction shall be deemed to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the Original Issue Date (provided that the Commission continues to take the position that such treatment is proper at the time of such exercise). In the event that a registration statement registering the issuance of Warrant Shares is, for any reason, not effective at the time of exercise of this Warrant, then this Warrant may only be exercised through a cashless exercise, as set forth in this Section 10.

 

-8-

 

 

In no event will the exercise of this Warrant be settled in cash.

 

12.              Limitations on Exercise.

 

(a)               Notwithstanding anything to the contrary contained herein, the Company shall not effect any exercise of this Warrant, and the Holder shall not be entitled to exercise this Warrant for a number of Warrant Shares in excess of that number of Warrant Shares which, upon giving effect or immediately prior to such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder, its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to exceed 9.99% (the “Maximum Percentage”) of the total number of issued and outstanding shares of Common Stock of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act to exceed 9.99% of the combined voting power of all of the securities of the Company then outstanding following such exercise. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Form 10-Q or Form 10-K, as the case may be, filed with the Commission prior to the Exercise Date, (y) a more recent public announcement by the Company or (z) any other notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written request of the Holder, the Company shall within three (3) Trading Days confirm in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% specified in such notice; provided that any such increase or decrease will not be effective until at least the sixty-first (61st) day after such notice is delivered to the Company. For purposes of this Section 12(a), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act shall include the shares of Common Stock issuable upon the exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (x) exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and is beneficially owned by the Holder or any of its Affiliates and other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act.

 

-9-

 

 

(b)               This Section 12 shall not restrict the number of shares of Common Stock which a Holder may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder may receive in the event of a Fundamental Transaction as contemplated in Section 10(c) of this Warrant.

 

13.              No Fractional Shares. No fractional Warrant Shares will be issued in connection with any exercise of this Warrant. In lieu of any fractional shares that would otherwise be issuable, the number of Warrant Shares to be issued shall be rounded down to the next whole number and the Company shall pay the Holder in cash the fair market value (based on the Closing Sale Price) for any such fractional shares.

 

14.              Notices. Any and all notices or other communications or deliveries hereunder (including any Exercise Notice) shall be in writing and shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile or confirmed e-mail prior to 5:30 P.M., New York City time, on a Trading Day, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile or confirmed e-mail on a day that is not a Trading Day or later than 5:30 P.M., New York City time, on any Trading Day, (iii) the Trading Day following the date of mailing, if sent by nationally recognized overnight courier service specifying next business day delivery, or (iv) upon actual receipt by the Person to whom such notice is required to be given, if by hand delivery. The addresses and e-mail addresses for such communications shall be:

 

If to the Company:

Amicus Therapeutics, Inc.

Attention: Ellen Rosenberg, General Counsel

3675 Market Street

Philadelphia, PA 19104

Email: erosenberg@amicusrx.com

 

With a copy to:

 

Troutman Pepper Hamilton Sanders LLP
Attention: Scott R. Jones, Esq.
400 Berwyn Park
899 Cassatt Road
Berwyn, PA 19312
Email: scott.jones@troutman.com

 

If to the Holder, to its address or e-mail address set forth herein or on the books and records of the Company. Or, in each of the above instances, to such other address or e-mail address as the recipient party has specified by written notice given to each other party at least five (5) days prior to the effectiveness of such change.

 

-10-

 

 

15.              Warrant Agent. The Company shall initially serve as warrant agent under this Warrant. Upon ten (10) days’ notice to the Holder, the Company may appoint a new warrant agent. Any corporation into which the Company or any new warrant agent may be merged or any corporation resulting from any consolidation to which the Company or any new warrant agent shall be a party or any corporation to which the Company or any new warrant agent transfers substantially all of its corporate trust or shareholders services business shall be a successor warrant agent under this Warrant without any further act. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed (by first class mail, postage prepaid) to the Holder at the Holder’s last address as shown on the Warrant Register.

 

16.              Miscellaneous.

 

(a)               No Rights as a Stockholder. The Holder, solely in such Person’s capacity as a holder of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in such Person’s capacity as the Holder of this Warrant, any of the rights of a stockholder of the Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, amalgamation, conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the Holder of the Warrant Shares which such Person is then entitled to receive upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors of the Company.

 

(b)               Authorized Shares. Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, amending its certificate or articles of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (a) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (b) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and non-assessable Warrant Shares upon the exercise of this Warrant, and (c) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof as may be necessary to enable the Company to perform its obligations under this Warrant.

 

(c)               Successors and Assigns. Subject to compliance with applicable securities laws, this Warrant may be assigned by the Holder. This Warrant may not be assigned by the Company without the written consent of the Holder, except to a successor in the event of a Fundamental Transaction. This Warrant shall be binding on and inure to the benefit of the Company and the Holder and their respective successors and assigns. Subject to the preceding sentence, nothing in this Warrant shall be construed to give to any Person other than the Company and the Holder any legal or equitable right, remedy or cause of action under this Warrant. This Warrant may be amended only in writing signed by the Company and the Holder, or their successors and assigns.

 

-11-

 

 

(d)               Amendment and Waiver. Except as otherwise provided herein, the provisions of the Warrants may be amended and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company has obtained the written consent of the Holder.

 

(e)               Acceptance. Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to all of the terms and conditions contained herein.

 

(f)                Governing Law; Jurisdiction. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. EACH OF THE COMPANY AND THE HOLDER HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT OF THE WARRANT OR ANY OF THE DOCUMENTS DELIVERED HEREUNDER), AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT. EACH OF THE COMPANY AND THE HOLDER HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PERSON AT THE ADDRESS IN EFFECT FOR NOTICES TO IT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. EACH OF THE COMPANY AND THE HOLDER HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY.

 

(g)               Headings. The headings herein are for convenience only, do not constitute a part of this Warrant and shall not be deemed to limit or affect any of the provisions hereof.

 

(h)               Severability. In case any one or more of the provisions of this Warrant shall be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Warrant shall not in any way be affected or impaired thereby, and the Company and the Holder will attempt in good faith to agree upon a valid and enforceable provision which shall be a commercially reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Warrant.

 

(i)                 Interpretation. For purposes of this Warrant, (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof, “hereby,” “hereto” and “hereunder” refer to this Warrant as a whole. Unless the context otherwise requires, references herein: (x) to sections and schedules mean the sections of, and schedules attached to, this Warrant; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document (as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof/without regard to subsequent amendments, supplements, and modifications thereto); and (z) to a statute means such statute (as amended from time to time and includes/enforced at the time and date of this Warrant becoming effective) and does not include any successor legislation thereto and any regulations promulgated thereunder. This Warrant shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The schedules referred to herein shall be construed with, and as an integral part of, this Warrant to the same extent as if they were set forth verbatim herein. All references to “$” or “dollars” mean the lawful currency of the United States of America. Whenever the singular is used in this Warrant, the same shall include the plural, and whenever the plural is used herein, the same shall include the singular, where appropriate.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

-12-

 

 

IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its authorized officer as of the date first indicated above.

 

AMICUS THERAPEUTICS, INC. 

 
By:        
Name:  Daphne Quimi
Title:   Chief Financial Officer

 

[Signature Page to Warrant]

 

 

 

 

EXHIBIT A

 

FORM OF ASSIGNMENT

 

(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)

 

FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to

 

Name:  
 

(Please Print)

 

Address:  

 

 

 

(Please Print)

   
Phone Number:  —
   
Email Address:  
   
   —
   

Dated: _______________ __, ______

 

 

Holder’s Signature:                                                                 

 

 

Holder’s Address:                                                                 

 

 

 

NOTE: The signature to this Form of Assignment must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant.

 

 

 

  

EXHIBIT B

 

FORM OF EXERCISE NOTICE

 

[To be executed by the Holder to purchase Warrant Shares under the Warrant]

 

Ladies and Gentlemen:

 

(1)       The undersigned is the Holder of Warrant No.[ ] (the “Warrant”) issued by Amicus Therapeutics, Inc., a Delaware corporation (the “Company”). Capitalized terms used herein and not otherwise defined herein have the respective meanings set forth in the Warrant.

 

(2)       The undersigned hereby exercises its right to purchase Warrant Shares pursuant to the Warrant.

 

(3)       The Holder intends that payment of the Exercise Price shall be made as (check one):

 

¨      Cash Exercise

 

¨    “Cashless Exercise” under Section 11 of the Warrant

 

(4)       If the Holder has elected a Cash Exercise, the Holder shall pay the sum of $__________ in immediately available funds to the Company in accordance with the terms of the Warrant.

 

(5)       Pursuant to this Exercise Notice, the Company shall deliver to the Holder Warrant Shares determined in accordance with the terms of the Warrant. The Warrant Shares shall be delivered to the following DWAC Account Number:

 

(6)       By its delivery of this Exercise Notice, the undersigned represents and warrants to the Company that in giving effect to the exercise evidenced hereby the Holder, its Affiliates and any other Person whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act will not beneficially own in excess of the number of shares of Common Stock (as determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended) permitted to be owned under Section 11(a) of the Warrant to which this notice relates.

 

Dated:    

 

Name of Holder:    

  

By:        
Name:  
Title:  

  

(Signature must conform in all respects to name of Holder as specified on the face of the Warrant)

 

 

 

Exhibit 10.1

 

Execution Version

 

BUSINESS COMBINATION AGREEMENT

 

DATED

 

SEPTEMBER 29, 2021

 

BY AND AMONG

 

ARYA SCIENCES ACQUISITION CORP IV,

 

AMICUS THERAPEUTICS, INC.,

 

AMICUS GT HOLDINGS, LLC

 

AND

 

CARITAS THERAPEUTICS, LLC

 

 

 

 

TABLE OF CONTENTS

 

  Page
   
Article I DEFINITIONS 4
   
Article II BUSINESS COMBINATION 29
   
2.1 Closing Transactions 29
2.2 Closing; Closing Date 30
2.3 Withholding 30
     
Article III REPRESENTATIONS AND WARRANTIES RELATING TO THE AMBER ENTITIES 31
   
3.1 Existence and Power 31
3.2 Authorization 31
3.3 Consents and Requisite Governmental Approvals; Non-Contravention 32
3.4 Finders’ Fees 32
3.5 Information Supplied 33
3.6 Investigation; No Other Representations 33
3.7 Exclusivity of Representations and Warranties 34
     
Article IV REPRESENTATIONS AND WARRANTIES RELATING TO THE BUSINESS 34
   
4.1 Existence and Power 34
4.2 Capitalization 35
4.3 Assumed Names 36
4.4 Financial Statements; No Undisclosed Liabilities 36
4.5 Business Activities 37
4.6 Internal Controls 38
4.7 Absence of Certain Changes 38
4.8 Tangible Personal Property; Sufficiency and Title to Assets 38
4.9 Litigation 39
4.10 Contracts 39
4.11 Licenses and Permits 42
4.12 Compliance with Laws 42
4.13 Intellectual Property 43
4.14 Information Technology and Data Matters 44
4.15 Employees 45
4.16 Employment Benefit Plans 46
4.17 Real Property 48
4.18 Tax Matters 49
4.19 Environmental Laws 51
4.20 Insurance 51
4.21 Affiliate Arrangements 52

 

 i

 

 

TABLE OF CONTENTS
(cont’d)

 

  Page
   
4.22 Certain Business Practices 52
4.23 Trade Controls 53
4.24 Material Suppliers 53
4.25 Regulatory Compliance 53
     
Article V REPRESENTATIONS AND WARRANTIES OF ARYA 55
   
5.1 Existence and Power 55
5.2 Authority 55
5.3 Governmental Authorization 56
5.4 Non-Contravention 56
5.5 Finders’ Fees 56
5.6 Capitalization 57
5.7 Investment Company Act 57
5.8 Trust Account 58
5.9 ARYA SEC Documents and Financial Statements; Internal Controls 59
5.10 Litigation 60
5.11 Business Activities 60
5.12 Employee Benefit Plans 61
5.13 Compliance with Laws 61
5.14 Tax Matters 61
5.15 Absence of Certain Changes 63
5.16 PIPE Investments 63
5.17 Transactions with Affiliates 64
5.18 Information Supplied 64
5.19 Certain Business Practices 64
5.20 Trade Controls 65
5.21 Investigation; No Other Representation 65
5.22 Exclusivity of Representations and Warranties 66
     
Article VI COVENANTS OF THE PARTIES 66
   
6.1 Conduct of the Business Entities and the Business 66
6.2 Conduct of the Business of ARYA 71
6.3 Efforts to Consummate 73
6.4 Exclusive Dealing 74
6.5 Confidentiality; Access to Information 75
6.6 Preparation of Registration Statement / Proxy Statement 80
6.7 ARYA Shareholder Approval 81
6.8 Nasdaq Listing 82
6.9 Trust Account 82
6.10 Directors’ and Officers’ Indemnification and Insurance 83
6.11 Post-Closing Directors and Officers 84
6.12 Tax Matters 85

 

 ii

 

 

TABLE OF CONTENTS
(cont’d)

 

Page

 

6.13 Post-Closing Incentive Equity Plan; Post-Closing Employee Stock Purchase Plan 87
6.14 Pre-Closing Reorganization; Excluded Assets and Liabilities 88
6.15 Limitation on Assignment of Contributed Business Assets; Third-Party Consents 90
6.16 Misallocated Assets 92
6.17 Shared Contracts 92
6.18 Restrictive Covenants 93
6.19 Related Party Transactions 96
6.20 Insurance Coverage 96
6.21 Lien Releases 97
6.22 Litigation Support 97
6.23 Cooperation Regarding Financial Statements and Related Information 98
6.24 Transition Committee 99
6.25 Intellectual Property License 99
6.26 Philadelphia Facility Sublease 100
6.27 Co-Development and Commercialization Agreement 100
     
Article VII EMPLOYEE MATTER COVENANTS 100
   
7.1 Employee Matters Covenant. 100
7.2 No Third-Party Beneficiaries 103
     
Article VIII CONDITIONS TO CLOSING 104
   
8.1 Conditions to the Obligations of the Parties 104
8.2 Conditions to Obligations of ARYA 104
8.3 Conditions to Obligations of the Amber Entities 106
8.4 Frustration of Closing Conditions 107
     
Article IX TERMINATION 107
   
9.1 Termination 107
9.2 Effect of Termination 108
     
Article X INDEMNIFICATION 108
   
10.1 Survival 108
10.2 Indemnification by Amber GT Parent and Amber GT 109
10.3 Indemnification by ARYA 109
10.4 Indemnification Procedures 110
10.5 Exclusive Remedy 112
10.6 Additional Indemnification Provisions 112
10.7 Limitation of Liability 113
10.8 Manner of Payments 113

 

 iii

 

 

TABLE OF CONTENTS
(cont’d)

 

Page

 

Article XI MISCELLANEOUS 113
   
11.1 Notices 113
11.2 Amendments; Waivers 115
11.3 Arm’s-Length Bargaining; No Presumption against Drafter 115
11.4 Publicity 116
11.5 Expenses 117
11.6 No Assignment or Delegation 117
11.7 Governing Law 117
11.8 Counterparts; Electronic Signatures 117
11.9 Knowledge of Amber GT Parent; Knowledge of ARYA 118
11.10 Entire Agreement 118
11.11 Exhibits and Schedules 118
11.12 Severability 118
11.13 Construction; Interpretation 119
11.14 Third-Party Beneficiaries 119
11.15 Trust Account Waiver 120
11.16 Submission to Jurisdiction 120
11.17 Remedies 121
11.18 Waiver of Jury Trial 121
11.19 Non-Recourse 122

  

Annexes & Exhibits

 

Exhibit A - Form of PIPE Subscription Agreement
Exhibit B - Form of A&R Company LLC Agreement
Exhibit C - Form of Tax Receivables Agreement
Exhibit D - Form of Director Nomination Agreement
Exhibit E - Form of Co-Development and Commercialization Agreement
Exhibit F - Form of Transition Services Agreement
Exhibit G - Form of ARYA Post-Closing Certificate of Incorporation
Exhibit H - Form of ARYA Post-Closing Bylaws
Exhibit I-1 - Form of Post-Closing Incentive Equity Plan
Exhibit I-2 - Form of Post-Closing Employee Stock Purchase Plan
     
Annex A - PIPE Investors

 

 iv

 

 

BUSINESS COMBINATION AGREEMENT

 

This BUSINESS COMBINATION AGREEMENT (the “Agreement”), dated as of September 29, 2021 (the “Effective Date”), is made by and among ARYA Sciences Acquisition Corp IV, a Cayman Islands exempted company, Amicus, Inc. a Delaware corporation (“Amber GT Parent”), Amicus GT Holdings, LLC, a Delaware limited liability company (“Amber GT”), and Caritas Therapeutics, LLC, a Delaware limited liability company (the “Company”). ARYA, Amber GT Parent, Amber GT and the Company shall be referred to herein from time to time collectively as the “Parties” or individually as a “Party.

 

W I T N E S E T H:

 

A.           WHEREAS, ARYA is a blank check company incorporated as a Cayman Islands exempted company on August 24, 2020, and incorporated for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or other similar business combination with one or more businesses or entities;

 

B.            WHEREAS, pursuant to the Governing Documents of ARYA, ARYA is required to provide an opportunity for its shareholders to have their outstanding ARYA Class A Shares redeemed on the terms and subject to the conditions set forth therein in connection with obtaining the ARYA Shareholder Approval;

 

C.            WHEREAS, as of the date of this Agreement, ARYA Sciences Holdings IV, a Cayman Islands exempted limited company (the “ARYA Sponsor”), and the Other Class B Shareholders collectively own 3,737,500 ARYA Class B Shares;

 

D.            WHEREAS, (a) Amber GT is a direct and wholly owned Subsidiary of Amber GT Parent formed for purposes of consummating the transactions contemplated by this Agreement and the applicable Additional Agreements and, from and after the Closing, holding Equity Securities in the Company and ARYA and (b) the Company is, as of the date hereof, a direct and wholly owned Subsidiary of Amber GT formed for purposes of consummating the transactions contemplated by this Agreement and the applicable Additional Agreements and, from and after the Closing, operating the Business;

 

E.            WHEREAS, concurrently with the execution of this Agreement, the ARYA Sponsor, the Other Class B Shareholders, ARYA and Amber GT are entering into the Sponsor Letter Agreement (the “Sponsor Letter Agreement”), pursuant to which the ARYA Sponsor and each Other Class B Shareholder have agreed to (a) vote in favor of this Agreement and the transactions contemplated hereby, (b) waive any adjustment to the conversion ratio set forth in the Governing Documents of ARYA or any other anti-dilution or similar protection with respect to the ARYA Class B Shares held by him, her or it (whether resulting from the transactions contemplated by the PIPE Subscription Agreements or otherwise) and (c) subject to, and conditioned upon the occurrence of and effective as of, the Closing terminate certain existing agreements or arrangements, in each case, on the terms and subject to the conditions set forth in the Sponsor Letter Agreement;

 

 

 

 

F.            WHEREAS, prior to the Closing, Amber GT Parent shall cause the Pre-Closing Reorganization to occur on the terms and subject to the conditions set forth in this Agreement;

 

G.            WHEREAS, on the Closing Date, prior to the Closing, ARYA shall transfer by way of continuation from the Cayman Islands to the State of Delaware and domesticate as a Delaware corporation in accordance with Section 388 of the DGCL and Part XII of the Cayman Islands Companies Act (2021 Revision) (the “Domestication”), on the terms and subject to the conditions set forth in this Agreement;

 

H.            WHEREAS, concurrently with the execution of this Agreement, each of Perceptive Life Sciences Master Fund Ltd., a Cayman Islands exempted company (the “Perceptive PIPE Investor”) and each of the investors set forth on Annex A hereto (collectively with the Perceptive PIPE Investor, the “PIPE Investors”) are entering into a Subscription Agreement, substantially in the form attached hereto as Exhibit A (collectively, the “PIPE Subscription Agreements”), pursuant to which, among other things, each PIPE Investor has agreed to subscribe for and purchase on the Closing Date immediately prior to the Closing, and ARYA has agreed to issue and sell to each such PIPE Investor on the Closing Date immediately prior to the Closing, the number of ARYA Class A Shares set forth in the applicable PIPE Subscription Agreement in exchange for the purchase price set forth therein (the equity financing under all PIPE Subscription Agreements, collectively, the “PIPE Investment”), in each case, on the terms and subject to the conditions set forth therein;

 

I.            WHEREAS, at the Closing, (a) ARYA shall contribute the Closing Date Contribution Amount to the Company and, in exchange therefor, the Company shall issue to ARYA the number of Company Units determined pursuant to this Agreement, (b) Amber GT Parent shall contribute, or cause to be contributed, the Amber GT Parent Contribution Amount and, in exchange therefor, the Company shall issue to Amber GT the number of Company Units determined pursuant to this Agreement with respect thereto, and (c) in connection with the contribution and issuance described above, (i) ARYA shall issue to Amber GT the number of shares of ARYA Class B Shares determined pursuant to this Agreement, (ii) Amber GT, Amber GT Parent, ARYA and the Company shall enter into the Amended and Restated Limited Liability Company Agreement of the Company, substantially in the form attached hereto as Exhibit B (the “A&R Company LLC Agreement”), to, among other things, (A) recapitalize the authorized Equity Securities of the Company such that, from and after the Closing, the authorized classes of Equity Securities of the Company will consist of Company Units, with the applicable, rights, preferences and obligations set forth in the A&R Company LLC Agreement, and (B) appoint the individuals that are members of the ARYA Board immediately after the Closing to the board of managers of the Company and (iii) the Existing Company LLC Interests held by Amber GT (which, for the avoidance of doubt, constitute as of the date hereof, and will constitute at all times prior to the Closing, all of the issued and outstanding Equity Securities of the Company) shall be reclassified into the number of Company Units determined pursuant to this Agreement, in the case of each of clause (a), (b) and (c), on the terms and subject to the conditions set forth in this Agreement;

 

 2 

 

 

J.            WHEREAS, concurrently with the execution of this Agreement, each of ARYA, the Company, the Perceptive PIPE Investor, the ARYA Sponsor, the Other Class B Shareholders and Amber GT Parent are each entering into the Investor Rights Agreement (the “Investor Rights Agreement”), pursuant to which, among other things, the Perceptive PIPE Investor, the ARYA Sponsor, Amber GT and the Other Class B Shareholders will each, subject to, and conditioned upon the occurrence of, the Closing, (a) agree not to effect any sale or distribution of any Equity Securities of ARYA and, in the case of Amber GT, the Company held by any of them during the lock-up period described therein and (b) will be granted certain registration rights with respect to their respective ARYA Shares, in each case, on the terms and subject to the conditions set forth therein;

 

K.            WHEREAS, at the Closing, Amber GT, the Company and ARYA will enter into the Tax Receivable Agreement, substantially in the form attached hereto as Exhibit C (the “Tax Receivable Agreement”);

 

L.            WHEREAS, at the Closing, ARYA, ARYA Sponsor and Amber GT Parent will enter into a director nomination agreement, substantially in the form attached hereto as Exhibit D (the “Director Nomination Agreement”), pursuant to which, among other things, each of Amber GT Parent and the ARYA Sponsor will have the right to nominate individuals to the director seats held by the Amber GT Parent Designees or the ARYA Sponsor Designees, as applicable, in each case, on the terms and subject to the conditions therein;

 

M.            WHEREAS, the board of directors of ARYA (the “ARYA Board”) has (a) approved this Agreement, the Additional Agreements to which ARYA is or will be a party and the transactions contemplated hereby and thereby (including the Domestication) and (b) recommended, among other things, approval of this Agreement and the transactions contemplated by this Agreement (including the Domestication) by the holders of ARYA Shares entitled to vote thereon; and

 

N.            WHEREAS, (a) the board of directors of Amber GT Parent has approved this Agreement, the Additional Agreements to which it is or will be a party and the transactions contemplated hereby and thereby (including the Pre-Closing Reorganization), (b) the board of directors of Amber GT has approved this Agreement, the Additional Agreements to which Amber GT is or will be a party and the transactions contemplated hereby and thereby (including the Pre-Closing Reorganization) and (c) Amber GT, as the sole member of the Company, has approved this Agreement, the Additional Agreements to which the Company is or will be a party and the transactions contemplated hereby and thereby (including the Pre-Closing Reorganization) (the “Company Sole Member Consent”).

 

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NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and the representations, warranties, covenants and agreements set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties accordingly agree as follows:

 

Article I
DEFINITIONS

 

The following terms, as used herein, have the following meanings:

 

1.1           A&R Company LLC Agreement” has the meaning set forth in the recitals.

 

1.2           Action” means any lawsuit, litigation, action, inquiry, audit, examination or investigation, claim, complaint, charge, proceeding, suit or arbitration (in each case, whether civil, criminal or administrative and whether public or private) by or before or otherwise involving any Authority.

 

1.3           Additional Agreements” means the Transition Services Agreement, the Co-Development and Commercialization Agreement, the A&R Company LLC Agreement, the Tax Receivable Agreement, the Investor Rights Agreement, the Sponsor Letter Agreement, the PIPE Subscription Agreements, the Director Nomination Agreement, the Philadelphia Facility Sublease and each other agreement, document, instrument or certificate contemplated by this Agreement executed or to be executed in connection with the transactions contemplated hereby.

 

1.4           Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with such Person. Notwithstanding the foregoing or anything to the contrary herein, (a) for the avoidance of doubt, (i) prior to the Closing, each Business Entity shall be deemed to be an Affiliate of each of Amber GT Parent and Amber GT and (ii) from and after the Closing, each Business Entity shall be deemed to be an Affiliate of ARYA (and, for the avoidance of doubt, not an Affiliate of Amber GT Parent or Amber GT), and (b) the Affiliates of the ARYA Sponsor shall be deemed to include Perceptive Advisors LLC, a Delaware limited liability company, and its Affiliates.

 

1.5           Aggregate Closing PIPE Proceeds” means the aggregate cash proceeds received (or deemed received) by ARYA (or one or more of its designees) in respect of the PIPE Investment (whether prior to or on the Closing Date and without, for the avoidance of doubt, giving effect to, or otherwise taking into account the use of any such proceeds). For the avoidance of doubt, any cash proceeds received (or deemed received) by ARYA in respect of any amounts funded under a PIPE Subscription Agreement prior to the Closing Date shall constitute, and be taken into account for purposes of determining, the Aggregate Closing PIPE Proceeds.

 

1.6           Aggregate Closing Transaction Proceeds” means an amount equal to (a) the amount of cash in the Trust Account as of immediately prior to the Closing (and before, for the avoidance of doubt, giving effect to any ARYA Share Redemptions and the payment of the Deferred Underwriting Commission payable to Goldman Sachs & Co. LLC and Jefferies LLC), minus (b) the aggregate amount of cash required to fund ARYA Share Redemptions from the Trust Account, plus (c) the Aggregate Closing PIPE Proceeds, plus (d) the aggregate cash proceeds received (or deemed received) by the Company in respect of Amber GT Parent Contribution.

 

1.7           Agreed Designee” has the meaning set forth in Section 6.11(b).

 

1.8           Agreement” has the meaning set forth in the preamble.

 

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1.9           Amber Biologics” has the meaning set forth in Section 2.1(a).

 

1.10         Amber Confidential Information” has the meaning set forth in Section 6.5(j).

 

1.11         Amber Disclosure Schedules” means the disclosure schedules to this Agreement delivered to ARYA by the Amber Entities on the date of this Agreement.

 

1.12         Amber Entities” means, collectively, Amber GT Parent, Amber GT and, prior to the Closing, the Company.

 

1.13         Amber Entity Expenses” means, as of any determination time, the aggregate amount of fees, expenses, commissions or other amounts incurred by or on behalf of, and that are due and payable (and not otherwise expressly allocated to ARYA pursuant to the terms this Agreement or any Additional Agreement) by any Amber Entity in connection with the negotiation, preparation or execution of this Agreement or any Additional Agreements, the performance of its covenants or agreements in this Agreement or any Additional Agreements or the consummation of the transactions contemplated hereby or thereby, including (a) the fees and expenses of outside legal counsel, accountants, advisors, brokers, investment bankers, consultants, or other agents or service providers of any Amber Entity or any of its Affiliates and (b) any other fees, expenses, commissions or other amounts that are expressly allocated to any Amber Entity pursuant to this Agreement or any Additional Agreement.

 

1.14         Amber Fundamental Representations” means the representations and warranties set forth in Section 3.1 (Existence and Power), Section 3.2 (Authorization), Section 3.4 (Finders’ Fees), Section 4.1 (Existence and Power), Section 4.2 (Capitalization), Section 4.5 (Business Activities), Section 4.7 (Absence of Certain Changes), Section 4.8(a) and Section 4.8(c) (Tangible Personal Property; Sufficiency and Title to Assets) and Section 4.13(b) (Intellectual Property).

 

1.15         Amber GT” has the meaning set forth in the preamble.

 

1.16         Amber GT Parent” has the meaning set forth in the preamble.

 

1.17         Amber GT Parent Contribution Amount” means an amount in cash equal to $50,000,000.

 

1.18         Amber GT Parent Contribution Equity Amount” means a number of Company Units or ARYA Class B Shares, as applicable, equal to (a) the Amber GT Parent Contribution Amount, divided by (b) $10.00.

 

1.19         Amber GT Parent Designee” has the meaning set forth in Section 6.11(b).

 

1.20         Amber Indemnified Parties” has the meaning set forth in Section 10.3(a).

 

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1.21            Amber Material Adverse Effect” means any change, event, effect or occurrence that, individually or in the aggregate with any other change, event, effect or occurrence, has had or would reasonably be expected to have a material adverse effect on (a) the results of operations, assets, Liabilities or condition (financial or otherwise) of the Business, or (b) the ability of any Amber Entity to consummate the transactions contemplated by this Agreement in accordance with the terms hereof; provided, however, that, in the case of clause (a), none of the following shall be taken into account in determining whether an Amber Material Adverse Effect has occurred or is reasonably likely to occur: any adverse change, event, effect or occurrence arising after the date of this Agreement from or related to (i) general business or economic conditions in or affecting the United States, or changes therein, or the global economy generally, (ii) any national or international political or social conditions in the United States or any other country, including the engagement by the United States or any other country in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence in any place of any military or terrorist attack, sabotage or cyberterrorism, (iii) changes in conditions of the financial, banking, capital or securities markets generally in the United States or any other country or region in the world, or changes therein, including changes in interest rates in the United States or any other country and changes in exchange rates for the currencies of any countries, (iv) any change, event, effect or occurrence that is generally applicable to the industries or markets in which the Business operates, (v) the execution or public announcement of this Agreement or the pendency or consummation of the transactions contemplated by this Agreement, including the impact thereof on the relationships of the Business, contractual or otherwise, with employees, customers, investors, contractors, lenders, suppliers, vendors, partners, licensors, licensees, payors or other third parties related thereto (provided that the exception in this clause (v) shall not apply to the representations and warranties set forth in Section 3.3(a) to the extent that its purpose is to address the consequences resulting from the public announcement or pendency or consummation of the transactions contemplated by this Agreement or the condition set forth in Section 8.2(b) to the extent it relates to such representations and warranties), (vi) any failure by the Business to meet, or changes to, any internal or published budgets, projections, forecasts, estimates or predictions (although the underlying facts and circumstances resulting in such failure may be taken into account to the extent not otherwise excluded from this definition pursuant to clauses (i) through (iv) or (vii)), or (vii) any hurricane, tornado, flood, earthquake, tsunami, natural disaster, mudslides, wild fires, epidemics, pandemics (including COVID-19) or quarantines, acts of God or other natural disasters or comparable events in the United States or any other country or region in the world, or any escalation of the foregoing; provided, however, that any change, event, effect or occurrence resulting from a matter described in any of the foregoing clauses (i) through (iv) or (vii) may be taken into account in determining whether an Amber Material Adverse Effect has occurred or is reasonably likely to occur to the extent such change, event, effect or occurrence has had or would reasonably be expected to have a disproportionate adverse effect on the Business relative to other participants operating in the industries or markets in which the Business operates.

 

1.22         Amber Related Party” has the meaning set forth in Section 4.21.

 

1.23         Amber Related Party Transactions” has the meaning set forth in Section 4.21.

 

1.24         Anti-Corruption Laws” has the meaning set forth in Section 4.22.

 

1.25         ARYA” means (a) prior to the consummation of the Domestication, ARYA Sciences Acquisition Corp IV, a Cayman Islands exempted company, and (b) from and after the consummation of the Domestication, ARYA as domesticated in Delaware, and anticipated to be named “Caritas Therapeutics, Inc.,” a Delaware corporation. Any reference to ARYA in this Agreement or any Additional Agreement shall be deemed to refer to clause (a) or (b), as the context so requires.

 

 6 

 

 

1.26         ARYA Acquisition Proposal” means any transaction or series of related transactions constituting a “Business Combination” (as defined in ARYA’s Governing Documents as in effect as of the date hereof). Notwithstanding the foregoing or anything to the contrary herein, none of this Agreement, the Additional Agreements or the transactions contemplated hereby or thereby shall constitute an ARYA Acquisition Proposal.

 

1.27         ARYA Board” has the meaning set forth in the recitals.

 

1.28          ARYA Board Recommendation” has the meaning set forth in Section 6.7.

 

1.29          ARYA Class A Shares” means (a) prior to the consummation of the Domestication, ARYA’s Class A ordinary shares and (b) from and after the consummation of the Domestication, shares of Class A common stock, par value $0.0001 per share, of ARYA as contemplated pursuant to the ARYA Post-Closing Certificate of Incorporation. Any reference to the ARYA Class A Shares or the ARYA Shares in this Agreement or any Additional Agreement shall be deemed to refer to clause (a) or clause (b) of this definition, as the context so requires.

 

1.30         ARYA Class B Shares” means (a) prior to the consummation of the Domestication, ARYA’s Class B ordinary shares and (b) from and after the consummation of the Domestication, shares of Class B common stock, par value $0.0001 per share, of ARYA as contemplated pursuant to the ARYA Post-Closing Certificate of Incorporation. Any reference to the ARYA Class B Shares or the ARYA Shares in this Agreement or any Additional Agreement shall be deemed to refer to clause (a) or clause (b) of this definition, as the context so requires.

 

1.31         ARYA D&O Persons” has the meaning set forth in Section 6.10(a).

 

1.32         ARYA Designee” has the meaning set forth in Section 6.11(b).

 

1.33         ARYA Disclosure Schedules” means the disclosure schedules to this Agreement delivered to the Amber Entities by ARYA on the date of this Agreement.

 

1.34         ARYA Expenses” means, as of any determination time, the aggregate amount of fees, expenses, commissions or other amounts incurred by or on behalf of, and that are due and payable (and not otherwise expressly allocated to an Amber Entity pursuant to the terms of this Agreement or any Additional Agreement) by ARYA in connection with the negotiation, preparation or execution of this Agreement or any Additional Agreement, the performance of its covenants or agreements in this Agreement or any Additional Agreement or the consummation of the transactions contemplated hereby or thereby, including (a) the fees and expenses of outside legal counsel, accountants, advisors, brokers, investment bankers, consultants, or other agents or service providers of ARYA and (b) any other fees, expenses, commissions or other amounts that are expressly allocated to ARYA pursuant to this Agreement or any Additional Agreement. Notwithstanding the foregoing or anything to the contrary herein, ARYA Expenses shall not include any Amber Entity Expenses.

 

1.35         ARYA Financial Statements” has the meaning set forth in Section 5.9(b).

 

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1.36         ARYA Fundamental Representations” means the representations and warranties set forth in Section 5.1 (Existence and Power), Section 5.2 (Authority), Section 5.5 (Finders’ Fees) and Section 5.6 (Capitalization).

 

1.37         ARYA Indemnified Parties” has the meaning set forth in Section 10.2.

 

1.38         ARYA Material Adverse Effect” means any change, event, effect or occurrence that, individually or in the aggregate with any other change, event, effect or occurrence, has had or would reasonably be expected to have a material adverse effect on the ability of ARYA to consummate the transactions contemplated by this Agreement in accordance with the terms hereof. Notwithstanding the foregoing or anything to the contrary herein, (a) in no event shall (i) any change, event, effect or occurrence to the extent relating to any of the Amber Entities, the Business Entities or the Business, (ii) any ARYA Share Redemption, in and of itself, or (iii) any breach of any covenants, agreements or obligations of a PIPE Investor under a PIPE Subscription Agreement (including any breach of a PIPE Investor’s obligations to fund its commitment thereunder when required), in and of itself, constitute an ARYA Material Adverse Effect and (b) no change, event, effect or occurrence that is generally applicable to “SPACs” shall be taken into account in determining whether an ARYA Material Adverse Effect has occurred or is reasonably likely to occur, except to the extent any such change, event, effect or occurrence has had or would reasonably be expected to have a disproportionate adverse effect on ARYA relative to other similarly situated “SPACs”.

 

1.39         ARYA Post-Closing Bylaws” has the meaning set forth in Section 2.1(b).

 

1.40         ARYA Post-Closing Certificate of Incorporation” has the meaning set forth in Section 2.1(b).

 

1.41         ARYA Related Party” has the meaning set forth in Section 5.17.

 

1.42         ARYA Related Party Transactions” has the meaning set forth in Section 5.17.

 

1.43         ARYA SEC Documents” has the meaning set forth in Section 5.9(a).

 

1.44         ARYA Share Redemption” means the election of an eligible holder of ARYA Class A Shares (as determined in accordance with ARYA’s Governing Documents and the Investment Management Trust Agreement) to redeem all or a portion of such holder’s ARYA Class A Shares, at the per-share price, payable in cash, equal to such holder’s pro rata share of the cash in the Trust Account (as determined in accordance with ARYA’s Governing Documents and the Investment Management Trust Agreement) in connection with the transactions contemplated by this Agreement and the Additional Agreements.

 

1.45         ARYA Shareholder Approval” means, collectively, the Required ARYA Shareholder Approval and the Other ARYA Shareholder Approval.

 

1.46         ARYA Shareholders Meeting” has the meaning set forth in Section 6.7.

 

1.47         ARYA Shares” means, collectively, the ARYA Class A Shares and the ARYA Class B Shares.

 

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1.48         ARYA Sponsor” has the meaning set forth in the recitals.

 

1.49         ARYA Sponsor Consent” means the consent of the ARYA Sponsor with respect to the entry by ARYA into this Agreement, as required pursuant to that certain letter agreement, dated February 25, 2021, by and among ARYA, the ARYA Sponsor and the other Persons party thereto.

 

1.50         Assumed Business Liabilities” means, subject to Section 6.14(c) and subject to, and without limitation of, any covenants, agreements or obligations of Amber GT Parent or any of its Affiliates under any Additional Agreement, all of the following Liabilities:

 

(a)            all Post-Closing Taxes;

 

(b)            all Liabilities under, or otherwise to the extent related to or arising out of, the Contributed Business Contracts after the Closing (including, for the avoidance of doubt, all Liabilities specifically allocated to ARYA pursuant to Section 6.17), except for any such Liabilities to the extent related to or arising out of any breach or other violation of any Contributed Business Contract prior to the Closing;

 

(c)            (i) except for any Liabilities retained by Amber GT Parent or any of its Affiliates pursuant to Article VII, all Liabilities related to or arising out of the employment of any Transferred Employees by the Company or its Affiliates after the Closing and (ii) all other Liabilities related to Transferred Employees specifically assumed by ARYA or any of its Affiliates pursuant to Article VII;

 

(d)            all Liabilities to the extent related to or arising out of the matters listed on Section 1.50 of the Amber Disclosure Schedules; and

 

(e)            all other Liabilities that are not the subject of clause (a) through clause (d) of this Section 1.50 to the extent related to or arising out of the conduct of the Business or the operation of the Contributed Business Assets, in each case, by ARYA or its Affiliates after the Closing.

 

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

 

1.52         Books and Records” has the meaning set forth in Section 1.92(f).

 

1.53         Business” means the business of investigating, manufacturing, researching, developing, testing, seeking, applying for, obtaining and maintaining Regulatory Permits, commercializing, selling and marketing products, product candidates, platforms or services arising out of the Gene Therapy Portfolio (including the Gene Therapy Products). Unless the context requires otherwise or as expressly set forth herein, any reference to the Business in this Agreement or any Additional Agreement shall be deemed to refer to the Business as conducted or operated by the Amber Entities and their Affiliates (prior to the Closing) or the Business as conducted or operated by the Business Entities and their Affiliates (after the Closing), as applicable.

 

9

 

 

 

1.54         Business Acquisition Proposal” means: (a) any direct or indirect acquisition or similar transaction, in one or a series of transactions, (i) of or with any of the Business Entities or of all or a material portion of the Equity Securities, either individually or in the aggregate, of any of the Business Entities or (ii) of all or a material portion of the assets, properties or rights related to or arising out of the Business or any material assets, properties or rights, either individually or in the aggregate, related to or arising out of the Business (in the case of each of clause (i) and (ii), whether by merger, consolidation, recapitalization, sale, transfer or license of assets, properties or rights, purchase or issuance of Equity Securities, tender offer or otherwise), or (b) any equity or similar investment in any of the Business Entities. Notwithstanding the foregoing or anything to the contrary herein, none of this Agreement, the Additional Agreements or the transactions contemplated hereby or thereby shall constitute a Business Acquisition Proposal.

 

1.55         Business Combination” has the meaning set forth in Section 1.26.

 

1.56         Business Combination Proposal” has the meaning set forth in Section 6.7.

 

1.57         Business Confidential Information” has the meaning set forth in Section 6.5(i).

 

1.58         Business Contractor” means any individual natural Person independent contractor or agency worker of the Amber Entities or any Affiliate of the Amber Entities who is primarily dedicated to the Business.

 

1.59         Business Day” means any day other than a Saturday, Sunday or a legal holiday on which commercial banking institutions in New York, New York are authorized to close for business.

 

1.60         Business Employee” means each individual who is employed by the Amber Entities or any of their Affiliates and who either (a) is set forth on Section 1.60 of the Amber Disclosure Schedules, or (b) has been reasonably and in good faith determined by Amber GT Parent to be necessary to the operation of the Business prior to the Closing Date; provided, that, in the case of clause (b), and without otherwise limiting or affecting the obligations (or the standard of determination) of Amber GT Parent in clause (b), Amber GT Parent shall: (x) provide prior written notice to ARYA of any such proposed determination, including the identity of each such individual, (y) provide ARYA a reasonable opportunity to comment and consult on such proposed determination, and (z) consider in good faith and take into account the comments and view of ARYA with respect to each such individual prior to making any such determination.

  

1.61         Business Employees List” has the meaning set forth in Section 4.15(a).

 

1.62         Business Entities” means, collectively, the Company and the Other Business Entities.

 

1.63         Business Insurance Policies” has the meaning set forth in Section 4.20.

 

1.64         Business Permits” has the meaning set forth in Section 4.11.

 

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1.65         Business Product” means each existing platform, program or product candidate that has been or is being researched, tested, developed, manufactured or commercialized by or on behalf of the Business, including all Gene Therapy Products set forth on Section 1.65 of the Amber Disclosure Schedules.

 

1.66         CARES Act” means the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. 116-136) and any regulations or administrative or other guidance published with respect thereto by any Authority.

 

1.67         CBA” means any collective bargaining agreement or other Contract with any labor union or labor organization.

 

1.68         Celenex” has the meaning set forth in Section 2.1(a).

 

1.69         Change of Control Payment” means any success, change of control, retention, transaction bonus or other similar payment or amount that (a) is payable to or may become payable to any Business Employee or Business Contractor (in each case, regardless of whether paid or payable prior to, at or after the Closing or in connection with or otherwise related to this Agreement or any Additional Agreement) and (b) with respect to which, following the Closing, any Business Entity or any Affiliate thereof has or may have any Liability (without, for the avoidance of doubt, taking into account any indemnities (or similar arrangements) hereunder or under any Additional Agreements).

 

1.70         Change of Control Transaction” means any transaction or series of related transactions that results, directly or indirectly, in the shareholders of a Person as of immediately prior to such transaction(s) holding, in the aggregate, less than fifty percent (50%) of the voting shares of such Person (or any successor or parent company of such Person) immediately after the consummation thereof (whether by merger, consolidation, tender offer, recapitalization, purchase or issuance of equity securities, tender offer or otherwise).

 

1.71         Closing” has the meaning set forth in Section 2.2.

 

1.72         Closing Company Financial Statements” has the meaning set forth in Section 4.4(b).

 

1.73         Closing Date” has the meaning set forth in Section 2.2.

 

1.74         Closing Date Contribution Amount” means an amount equal to (a) the amount of cash in the Trust Account as of immediately prior to the Closing (and before, for the avoidance of doubt, giving effect to the ARYA Share Redemptions and the payment of the Deferred Underwriting Commission payable to Goldman Sachs & Co. LLC and Jefferies LLC), less (b) the aggregate amount of cash required to fund ARYA Share Redemptions from the Trust Account and the Deferred Underwriting Commission payable to Goldman Sachs & Co. LLC and Jefferies LLC, plus (c) the Aggregate Closing PIPE Proceeds.

 

1.75         Closing Filing” has the meaning set forth in Section 11.4(b).

 

1.76         Closing Press Release” has the meaning set forth in Section 11.4(b).

 

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1.77         Co-Development and Commercialization Agreement” means the Co-Development and Commercialization Agreement, substantially in the form attached as Exhibit E hereto and with such modifications, amendments or supplements as may be mutually agreed to in writing by each of ARYA and Amber GT Parent, to be entered into by Amber GT Parent, Amber GT and certain of their Affiliates identified therein, on the one hand, and ARYA, the Company and certain of their Affiliates identified therein, on the other hand, at the Closing.

 

1.78         Code” means the Internal Revenue Code of 1986.

 

1.79         Commingled Books and Records” has the meaning set forth in Section 6.5(e).

 

1.80         Commingled Employee Records” has the meaning set forth in Section 6.5(f).

 

1.81         Company” has the meaning set forth in the preamble.

 

1.82         Company 401(k) Plan” has the meaning set forth in Section 7.1(d).

 

1.83         Company Sole Member Consent” has the meaning set forth in the recitals.

 

1.84         Company Units” means the “Common Units” of the Company (as defined in the A&R Company LLC Agreement).

 

1.85         Competing Business” means, (i) with respect to Amber GT Parent and its Affiliates, a business that competes directly or indirectly with the Restricted Business and (ii) with respect to ARYA and its Affiliates, a business that competes directly or indirectly with the Retained Business.

  

1.86         Computer Systems” means the computer hardware, Software, systems and information technology infrastructure (including telecommunications) controlled, owned, licensed or leased by the Amber Entities or their Affiliates.

 

1.87         Confidentiality Agreement” means the Mutual Confidentiality Agreement, dated as of July 19, 2021, by and between Amber GT Parent and ARYA.

 

1.88         Confidentiality Period” has the meaning set forth in Section 6.5(i).

 

1.89         Consent” means any notice, authorization, qualification, registration, filing, notification, waiver, order, consent or approval to be obtained from, filed with or delivered to, an Authority or other Person.

 

1.90         Contracts” means all legally-binding contracts, agreements, notes, indentures, leases, licenses and sublicenses, commitments, undertakings or other arrangements, in each case, whether oral or written, but not including any Employee Benefit Plan (other than any Contracts with respect to a Change of Control Payment).

 

1.91         Contributed Books and Records” has the meaning set forth in Section 1.92(f).

 

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1.92         Contributed Business Assets” means, subject to Section 6.14(b), the following assets, properties, claims and rights (whether tangible, intangible or otherwise and wherever located) of Amber GT Parent or any of its Affiliates:

 

(a)         all of the following Intellectual Property to the extent owned by Amber GT Parent or any of its Affiliates: (i) all Patents filed prior to the Closing Date that are Related to the Business, including those Patents set forth on Section 1.92(a)(i) of the Amber Disclosure Schedules, together with any extensions, supplemental protection certificates, reexaminations, reissues, renewals, divisionals, continuations, continuations-in-part, revisions and foreign counterparts that claim priority to any of the foregoing or to which any of the foregoing claim priority (the “Contributed Patents”); (ii) all Trademarks that are Related to the Business, including those Trademarks set forth on Section 1.92(a)(ii) of the Amber Disclosure Schedules, including all translations, adaptations, and combinations thereof, and all common law rights, registrations, applications for registration thereof, together with any extensions and renewals thereof, and together with the goodwill associated with any of the foregoing (the “Contributed Trademarks”); (iii) all Copyrights that are Related to the Business, including those Copyrights set forth on Section 1.92(a)(iii) of the Amber Disclosure Schedules (the “Contributed Copyrights”); (iv) all Internet domain name registrations that are Related to the Business, including those Internet domain name registrations set forth on Section 1.92(a)(iv) of the Amber Disclosure Schedules (the “Contributed Domain Names”); (v) all Trade Secrets that are Related to the Business, including those Trade Secrets set forth on Section 1.92(a)(v) of the Amber Disclosure Schedules (the “Contributed Trade Secrets”); and (vi) all other Intellectual Property that is Related to the Business (irrespective of whether within or outside of any of clauses (i) through (v)) (all such Intellectual Property, together with the Contributed Patents, Contributed Trademarks, Contributed Copyrights, Contributed Trade Secrets and Contributed Domain Names, collectively, the “Contributed Business IP”);

 

(b)         all Regulatory Permits Related to the Business, including the Regulatory Permits set forth on Section 1.92(b) of the Amber Disclosure Schedules (the “Contributed Regulatory Permits”), all other Business Permits and all rights or claims related to or arising under any of the foregoing;

 

(c)         all Gene Therapy Portfolio Contracts, all other Contracts Related to the Business, including the Contracts set forth on Section 1.92(c) of the Amber Disclosure Schedules (the “Contributed Business Contracts”), and all rights or claims related to or arising under any of the foregoing;

 

(d)         all machinery, equipment, office equipment and supplies and all other items of tangible personal property (including any furniture, furnishings, fixtures, vehicles, tools, components, laptops, tablets and smartphones) that are Related to the Business or otherwise primarily utilized by a Business Employee;

 

(e)         the Contributed Real Property;

 

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(f)         subject to Section 6.5(d) and Section 6.5(e), all books and records (financial, laboratory and otherwise), customer and supplier lists, advertising, marketing or other promotional materials, billing records, distribution lists, manuals, safety data, clinical trial (or similar) data and patient data and related programs (including patient support and market research programs and related databases), records, files and documents related to the preparation, filing prosecution, granting, maintenance or defense of any Contributed Business IP, any specifications, data and other documentation constituting or concerning the Business Products (or any “know how” or similar items with respect thereto), and all Business or Business Product complaint files and adverse event files (collectively, the “Books and Records”), in each case, owned, in possession of or controlled by Amber GT Parent or any of its Affiliates and to the extent relating to, held for use with or used in connection with the Business or the other Contributed Business Assets (the “Contributed Books and Records”); provided that (i) the Contributed Books and Records shall not include (A) the Contributed Business Employee Records (the treatment of which is set forth in Section 1.92(g) below), and (B) any Books and Records the transfer of which would be prohibited by applicable Law, and (ii) the Amber Entities may redact any information, documents or materials in Contributed Books and Records to the extent relating to or constituting Excluded Assets or Excluded Liabilities.

 

(g)         subject to Section 6.5(d) and Section 6.5(f), all employee or personnel files, in each case, owned, in possession of or controlled by Amber GT Parent or any of its Affiliates and to the extent related to any Business Employee (collectively, the “Contributed Business Employee Records”); provided that the Contributed Business Employee Records shall not include any files the transfer of which would be prohibited by applicable Law;

  

(h)         all inventory, biological drug substances and biological drug products, finished goods, raw materials, works in progress, packaging and labeling materials, supplies and parts Related to the Business;

 

(i)         all credits, prepaid expenses or assets, deferred charges, securities deposits or other prepaid items Related to the Business;

 

(j)         the goodwill and other intangible assets Related to the Business;

 

(k)        all Actions available to or being pursued by Amber GT Parent or any of its Affiliates to the extent related to or arising out of the conduct of the Business or the operation of the other Contributed Business Assets, whether arising by way of counterclaim or otherwise;

 

(l)         all proceeds received from and after the date hereof under Amber GT Parent’s or any of its Affiliates insurance policies or programs to the extent related to the damage or destruction of any assets, properties or rights prior to the Closing that are, or would have been but for such damage or destruction, included in the other Contributed Business Assets;

 

(m)       all assets, properties and rights described on Section 1.92(m) of the Amber Disclosure Schedules; and

 

(n)         without expanding or otherwise modifying any of the assets, properties or rights contemplated by clauses (a) through (n) of this definition, all other assets, properties and rights (including any tangible embodiments of any Contributed Business IP) that are Related to the Business (other than, for the avoidance of doubt, any such other assets, properties or rights that constitute Excluded Assets).

 

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1.93         Contributed Business Contracts” has the meaning set forth in Section 1.92(c).

 

1.94         Contributed Business Employee Records” has the meaning set forth in Section 1.92(g).

 

1.95         Contributed Business IP” has the meaning set forth in Section 1.92(a).

 

1.96         Contributed Copyrights” has the meaning set forth in Section 1.92(a).

 

1.97         Contributed Domain Names” has the meaning set forth in Section 1.92(a).

 

1.98         Contributed Leased Real Property” means all leasehold or subleasehold estates and other rights to use or occupy any land, buildings, structures, improvements, fixtures or other interest in real property held by any of the Amber Entities or any of their Affiliates set forth on Section 4.17(b) of the Amber Disclosure Schedules.

 

1.99         Contributed Owned Real Property” means all land, together with all buildings, structures, improvements and fixtures located thereon, and all easements and other rights and interests appurtenant thereto, owned by any of the Amber Entities or any of their Affiliates set forth on Section 4.17(a) of the Amber Disclosure Schedules.

  

1.100       Contributed Patents” has the meaning set forth in Section 1.92(a).

 

1.101       Contributed Real Property” means, collectively, the Contributed Leased Real Property and the Contributed Owned Real Property.

 

1.102       Contributed Regulatory Permits” has the meaning set forth in Section 1.92(b).

 

1.103       Contributed Trademarks” has the meaning set forth in Section 1.92(a).

 

1.104       Contributed Trade Secrets” has the meaning set forth in Section 1.92(a).

 

1.105       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 to the foregoing.

 

1.106       Copyrights” has the meaning set forth in Section 1.143.

 

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

 

1.108       Data Security Requirements” means the following, in each case to the extent applicable to the conduct of the Business: (a) all Privacy Laws; (b) the rules, policies, and procedures of the Amber Entities and their Affiliates regarding any Personal Information that is accessed, collected, stored, shared, secured, distributed, transferred, destroyed, processed or used by the Amber Entities or any of their Affiliates; (c) industry standards to the extent binding; and (d) Contracts that any of the Amber Entities or any of their Affiliates has entered or by which is otherwise bound regarding any Personal Information accessed, collected, stored, shared, secured, distributed, transferred, destroyed, processed or used by the Amber Entities or their Affiliates.

 

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1.109       Deferred Underwriting Commission” has the meaning ascribed to such term in the Underwriting Agreement, dated February 25, 2021, by and among ARYA, Goldman Sachs & Co. LLC and Jefferies LLC

 

1.110       DGCL” means the Delaware General Corporate Law.

 

1.111       Director Nomination Agreement” has the meaning set forth in the recitals.

 

1.112       Disabling Code” means computer code or other mechanism of any kind designed to disrupt, disable or harm in any manner the operation of any Software or hardware or Computer System or to misuse, gain unauthorized access to or misappropriate any business or personal information, including worms, bombs, backdoors, clocks, timers or other disabling device code, or designs or routines that cause Software or information to be erased, inoperable, or otherwise incapable of being used, either automatically, with passage of time or upon command.

 

1.113       Domestication” has the meaning set forth in the recitals.

 

1.114       Domestication Proposal” has the meaning set forth in Section 6.7.

 

1.115       Effective Date” has the meaning set forth in the preamble.

 

1.116       Employee Benefit Plan” means each “employee benefit plan” (as such term is defined in Section 3(3) of the United States Employee Retirement Security Act of 1974 (“ERISA”), whether or not subject to ERISA), each pension, retirement, profit-sharing, savings, health, welfare, post-employment welfare, bonus, incentive, commission, stock option, stock appreciation right, phantom stock, restricted stock unit, performance stock unit, other equity or equity-based, deferred compensation, severance, retention, accident, disability, employment, change of control, deal bonus, stock purchase, restricted stock, separation, consulting, vacation paid time off, fringe benefit and each other benefit or compensatory plan, program, policy, Contract or arrangement, in each case that is sponsored, maintained, contributed or entered into by, or for which there is any liability to, any Amber Entity or any of its Affiliates, in each case, for the benefit of any Business Employee or any Business Contractor.

 

1.117       Environmental Laws” means all Laws relating to pollution, public or worker health or safety, the protection of the environment, or the use, storage, handling, release or disposal of, or exposure to any Hazardous Materials.

 

1.118       Equity Securities” means any share, share capital, capital stock, partnership, membership, joint venture or similar interest in any Person (including any stock appreciation right, phantom stock, restricted stock unit, performance stock unit, restricted stock, profit participation or similar rights) and any option, warrant, right or security (including debt securities) convertible, exchangeable or exercisable therefor.

 

1.119       ERISA” has the meaning set forth in Section 1.116.

 

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1.120       Exchange Act” means the U.S. Securities Exchange Act of 1934.

 

1.121       Excluded Assets” has the meaning set forth in Section 6.14(b).

 

1.122       Excluded Liabilities” has the meaning set forth in Section 6.14(c).

 

1.123       Existing Company LLC Interests” means the “Common Units” of the Company (as defined in the Existing Company LLCA).

 

1.124       Existing Company LLCA” means the Limited Liability Company Agreement of the Company, dated as of September 24, 2021, by and between the Company and Amber GT.

 

1.125       FCPA” has the meaning set forth in Section 4.22.

 

1.126       FDA” means the U.S. Food and Drug Administration.

 

1.127       Financial Statements” has the meaning set forth in Section 4.4(a).

 

1.128       FL RE Holdings, LLC” has the meaning set forth in Section 2.1(a).

 

1.129       Fraud” means common law fraud under the Laws of the State of Delaware.

 

1.130       GAAP” means U.S. generally accepted accounting principles.

 

1.131       Gene Therapy” means in vivo gene therapy for the delivery of DNA or RNA for the treatment of a specific disease or condition and all associated signs, symptoms, stages or progression (including precursor conditions), including, in vivo and ex vivo gene therapy via adenoviruses, adeno-associated viruses, lentiviruses and other viral or non-viral vectors, gene editing and other technologies related to inducing breaks in a DNA or RNA sequence, or substituting, replacing, activating or deleting a particular base or set of bases of a DNA or RNA sequence.

 

1.132       Gene Therapy Portfolio” means (a) the Intellectual Property assets, properties and rights licensed under, and intangible assets and other assets, properties and rights of any of Amber GT Parent or one or more of its Affiliates related to or arising out of, the Gene Therapy Portfolio Contracts and (b) the Contributed Business IP (including, in respect of the foregoing (a) and (b), for the avoidance of doubt, any platform or product candidates developed under or utilizing any such assets, properties or rights).

 

1.133       Gene Therapy Portfolio Contracts” means the Contracts set forth on Section 1.133 of the Amber Disclosure Schedules.

 

1.134       Gene Therapy Products” means all products that primarily utilize Gene Therapy.

 

1.135       Governing Documents” means the legal document(s) by which any Person (other than an individual) establishes its legal existence or that govern its internal affairs. For example, the “Governing Documents” of a U.S. corporation are its certificate or articles of incorporation and bylaws, the “Governing Documents” of a U.S. limited partnership are its limited partnership agreement and certificate of limited partnership, the “Governing Documents” of a U.S. limited liability company are its operating or limited liability company agreement and certificate of formation, and the “Governing Documents” of a Cayman Islands exempted company are its memorandum and articles of association.

 

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1.136       Hazardous Material” means any pollutants, contaminants, or other materials, substances or wastes that are regulated by or for which Liability or standards of conduct may be imposed under any Environmental Law, including oil, petroleum, petroleum-derived substances, radiation and radioactive materials, noise, odors, mold and microbial matter, polychlorinated biphenyls, radon, urea formaldehyde, perfluoroalkyl and polyfluoroalkyl substances, and asbestos or any materials containing asbestos.

 

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

 

1.138       Inactive Business Employee” has the meaning set forth in Section 7.1(c).

 

1.139       Incentive Equity Plan Proposal” has the meaning set forth in Section 6.7.

 

1.140       Indebtedness” means, as of any time, with respect to any Person: (a) all obligations of such Person for borrowed money (including amounts by reason of overdrafts and amounts owed by reason of letter of credit reimbursement agreements), including with respect thereto, all interests, fees, costs and prepayment and other penalties, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person, (d) all obligations of such Person for the deferred purchase price of property, assets or services, including “earn-outs” and “seller notes” (other than, for the avoidance of doubt, trade accounts payable incurred in the ordinary course), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any lien or security interest on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (f) all liabilities for capitalized leases, (g) reimbursement and other obligations with respect to letters of credit, bank guarantees, bankers’ acceptances or other similar instruments, (h) derivative, hedging, swap, foreign exchange or similar arrangements, including swaps, caps, collars, hedges or similar arrangements, and (i) any of the obligations of any other Person of the type referred to in clauses (a) through (h) above directly or indirectly guaranteed by such Person or secured by any assets of such Person, whether or not such Indebtedness has been assumed by such Person.

 

1.141       Indemnified Party” has the meaning set forth in Section 10.4(a).

 

1.142       Indemnifying Party” has the meaning set forth in Section 10.4(a).

 

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1.143       Intellectual Property” means (together with all rights in or to) all of the following, anywhere in the world: any (a) trademarks, service marks, trade names, domain names, trade dress, URLs, social media accounts, logos and other source identifiers, including registration thereof or application for registration therefor, together with the goodwill symbolized by any of the foregoing (clause (a), collectively, “Trademarks”), (b) patents, patent applications (including provisional applications) and all improvements thereto, and statutory invention registrations, including all divisionals, continuations, continuations-in-part, renewals, reissues, extensions, certificates of reexamination, utility models and supplementary protection certificates, (clause (b), collectively, “Patents”), (c) trade secrets, know-how, and other confidential, proprietary or sensitive information, including unpatented technology, inventions (whether or not patentable or reduced to practice), data and databases, ideas, processes, methods, techniques, research and development, source code, drawings, specifications, layouts, designs, formulae, algorithms, compositions, industrial models, architectures, plans, proposals, technical data, financial, business and marketing plans and proposals, customer and supplier lists, and price and cost information (clause (c), collectively, “Trade Secrets”), (d) formulae, methods, processes, protocols, specifications, techniques, and other forms of technology (whether or not embodied in any tangible form and including all tangible embodiments of the foregoing, such as laboratory notebooks, samples, studies and summaries), (e) rights in Software, (f) published and unpublished works of authorship, whether copyrightable or not, moral rights and mask works, copyright, copyright registration, application for copyright registration (clause (f), collectively, “Copyrights”), (g) any other type of proprietary intellectual property right, (h) all registrations and applications for registration of any of the foregoing clauses (a) through (g) and (h) all copies and tangible embodiments of any of the foregoing clauses (a) through (g) (in whatever form or medium).

 

1.144       Intellectual Property License” has the meaning set forth in Section 6.25(a).

 

1.145       Intended Tax Treatment” has the meaning set forth in Section 6.12(c).

 

1.146       Intermediate HoldCo” has the meaning set forth in Section 2.1(a).

 

1.147       Internal Controls” has the meaning set forth in Section 4.6(a).

 

1.148       Investment Company Act” means the Investment Company Act of 1940.

 

1.149       Investment Management Trust Agreement” means the investment management trust agreement, dated March 2, 2021, by and between ARYA and the Trustee.

 

1.150       Investor Rights Agreement” has the meaning set forth in the recitals.

 

1.151       IPO” has the meaning set forth in Section 11.15.

 

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

 

1.153       Latest Balance Sheet” has the meaning set forth in Section 4.4(a).

 

1.154       Law” means any federal, national, state, local, foreign, national, multinational or supranational statute, law (including common law and, if applicable, fiduciary or similar duties), act, statute, ordinance, treaty, Order, rule, code, regulation or other binding directive, guidance issued, promulgated or enforced by an Authority having jurisdiction over a given matter.

 

1.155       Leases” means all leases, subleases, licenses, concessions and other agreements pursuant to which any of the Amber Entities or any of their Affiliates holds any Contributed Leased Real Property, including the right to all security deposits and other amounts and instruments deposited by or on behalf of any of the Amber Entities or their Affiliates thereunder.

 

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1.156       Liability” or “liability” means any and all debts, liabilities and obligations, whether accrued or fixed, absolute or contingent, known or unknown, matured or unmatured or determined or determinable, including those arising under any Law (including any Environmental Law), Action or Order and those arising under any Contract, agreement, arrangement, commitment or undertaking.

  

1.157       Licensed Intellectual Property” has the meaning set forth in Section 6.25(d)(i).

 

1.158       Lien” means any mortgage, lien, license or sub-license, pledge, charge, security interest or other similar encumbrance or interest of any kind in respect of such asset, and any conditional sale or voting agreement or proxy, including any agreement to give any of the foregoing.

 

1.159       Losses” means all losses, costs, interest, Taxes, charges, expenses (including reasonable and out-of-pocket attorneys’ fees), obligations, Liabilities, damages, settlement payments, awards, judgments, fines and penalties.

 

1.160       Material Business Contract” has the meaning set forth in Section 4.10(b).

 

1.161       Material Supplier” has the meaning set forth in Section 4.24.

 

1.162       MiaMed” has the meaning set forth in Section 2.1(a).

 

1.163       Nasdaq” means The Nasdaq Capital Market LLC.

 

1.164       Nasdaq Proposal” has the meaning set forth in Section 6.7.

 

1.165       Net Outstanding ARYA Class A Shares” means a number equal to (a) the sum of (i) the number of ARYA Class A Shares outstanding as of immediately prior to the Closing (and after, for the avoidance of doubt, the consummation of the Domestication and the conversion of ARYA Class B Shares into ARYA Class A Shares as contemplated hereby) and (ii) the number of ARYA Class A Shares to be issued pursuant to the PIPE Subscription Agreements, minus (b) the number of ARYA Class A Shares redeemed and cancelled in connection with the ARYA Share Redemptions.

 

1.166       Non-Assignable Assets” has the meaning set forth in Section 6.15(a).

 

1.167       Notice of Claim” means a written notice that specifies with reasonable specificity and detail the circumstances (then known) giving rise to the Losses (or potential Losses) that are being claimed by an Indemnified Party (including (a) if applicable, the breach of any Specified Representations or any covenant or agreement set forth in this Agreement, (b) the applicable subsection of Section 10.2 or Section 10.3(a) under which the Indemnified Party is claiming Losses and (c) whether such claim is a Third-Party Claim) and, to the extent then quantifiable, an estimate as to the amount of Losses that are indemnifiable hereunder or reasonably expected to be indemnifiable hereunder (provided that any such estimate shall not affect any Indemnified Party’s rights to, or an Indemnified Party’s obligations with respect to, any indemnity under Article X).

 

1.168       Notice of Dispute” has the meaning set forth in Section 10.4(a).

 

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1.169       OFAC” has the meaning set forth in Section 1.221.

 

1.170       Officers” has the meaning set forth in Section 6.11(a).

 

1.171       Order” means any decree, order, judgment, ruling, writ, judicial or arbitral award, injunction, subpoena, verdict, determination or decision entered, issued or rendered by an Authority.

 

1.172       Ordinary Course Tax Sharing Agreement” means any written commercial agreement entered into in the ordinary course of business the principal subject matter of which is not Tax.

 

1.173       Other ARYA Shareholder Approval” means the approval of each Other Transaction Proposal by the affirmative vote of the holders of the requisite number of ARYA Shares entitled to vote thereon, whether in person or by proxy at the ARYA Shareholders Meeting (or any adjournment thereof), in accordance with the Governing Documents of ARYA and applicable Law.

 

1.174       Other Business Entities” means, collectively, MiaMed, Celenex and Amber Biologics.

 

1.175       Other Class B Shareholders” means Todd Wider, Leslie Trigg and Michael Henderson.

 

1.176       Other Governing Document Proposals” has the meaning set forth in Section 6.7.

 

1.177       Other Transaction Proposals” means each Transaction Proposal, other than the Required Transaction Proposals.

 

1.178       Owned Intellectual Property” means all Intellectual Property owned or purported to be owned by any Amber Entities or any of their Affiliates.

 

1.179       Parent 401(k) Plan” has the meaning set forth in Section 7.1(d).

 

1.180       Party” or “Parties” has the meaning set forth in the preamble.

 

1.181       Patents” has the meaning set forth in Section 1.143.

 

1.182       Payroll Tax Executive Order” means the Presidential Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster, as issued on August 8, 2020, and including any administrative or other guidance published with respect thereto by any Authority (including IRS Notice 2020-65).

 

1.183       PCAOB” means the Public Company Accounting Oversight Board.

 

1.184       Perceptive PIPE Investor” has the meaning set forth in the recitals.

 

1.185       Perceptive Shareholders” means, collectively, the ARYA Sponsor and the Perceptive PIPE Investor.

 

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1.186       Permits” means any approvals, authorizations, clearances, licenses, registrations, permits or certificates of an Authority.

 

1.187       Permitted Liens” means the following Liens: (a) all covenants, conditions, restrictions, easements, rights of way encumbrances and other similar matters of record affecting title to any Contributed Real Property which, in each case, do not materially impair or interfere with the value, use or occupancy of such Contributed Real Property or the operation of the Business thereon; (b) mechanics’, carriers’, workers’, repairers’ and similar statutory Liens arising or incurred in the ordinary course of business (i) that are not yet due or payable, (ii) that are not material in amount or effect on the Business, and (iii) that have not resulted, directly or indirectly, from a breach, default or violation by any Amber Entity or any of its Affiliates of any Contract, Law or Order; (c) Liens for Taxes, assessments or governmental charges or levies that are not yet due and payable or that are being contested in good faith by appropriate proceedings (provided that, in each case, appropriate reserves required pursuant to GAAP have been made in respect thereof); (d) zoning, building codes and other land-use Laws regulating the use or occupancy of any Contributed Real Property or the activities conducted thereon that are imposed by any Authority having jurisdiction over any Contributed Real Property and that are not violated by the current use or occupancy of such Contributed Real Property and that, in each case, do not materially impair or interfere with the use or occupancy of such Contributed Real Property or the operation of the Business thereon; and (e) non-exclusive licenses to Intellectual Property granted in the ordinary course of business and that do not adversely affect the use of such Intellectual Property by the Business or are otherwise de minimis in amount or effect to the Business.

 

1.188       Person” means an individual, corporation, partnership (including a general partnership, limited partnership or limited liability partnership), limited liability company, association, trust or other entity or organization, including an Authority.

 

1.189       Personal Information” means all data or other information that, alone or in combination with other data or information, can be reasonably used to identify (directly or indirectly) an individual, household, computer or device, including any personally identifiable data (e.g., name, address, phone number, email address, financial account number, payment card data, government issued identifier, and health or medical information), or that is otherwise considered personally identifiable information under applicable laws.

 

1.190       Philadelphia Facility Sublease” means the sublease agreement to be entered into between Amber GT Parent and the Company at the Closing with respect to the property leased by Amber GT pursuant to that certain Lease, dated as of February 23, 2019, by and between Amber GT Parent and Wexford-SCEC 3675 Market Street, LLC, with commercial and other terms substantially consistent with the terms of the most recent drafts of such sublease agreement shared between Amber GT Parent and ARYA prior to the date hereof and with such changes or modifications thereto as mutually agreed to by Amber GT Parent and ARYA (such agreement not to be unreasonably withheld, conditioned or delayed by either Amber GT Parent or ARYA).

 

1.191       PIPE Investment” has the meaning set forth in the recitals.

 

1.192       PIPE Investors” has the meaning set forth in the recitals.

 

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1.193       PIPE Subscription Agreements” has the meaning set forth in the recitals.

 

1.194       Post-Closing Employee Stock Purchase Plan” has the meaning set forth in Section 6.13.

 

1.195       Post-Closing Incentive Equity Plan” has the meaning set forth in Section 6.13.

 

1.196        Post-Closing Tax Period” means each taxable period beginning after the Closing Date and the portion of any Straddle Period beginning on the day after the Closing Date.

 

1.197       Post-Closing Taxes” means (a) all non-income Taxes imposed on Amber GT Parent or any of its Affiliates (other than the Business Entities) with respect to the Business Entities, the Contributed Business Assets, or the Business, in each case that are attributable to any Post-Closing Tax Period (such Taxes for a Straddle Period to be apportioned in accordance with Section 6.12(d)) and (b) all Liabilities for Transfer Taxes, other than Pre-Closing Reorganization Transfer Taxes.

 

1.198       Pre-Closing Reorganization” has the meaning set forth in Section 2.1(a).

 

1.199       Pre-Closing Reorganization Transfer Taxes” means any Transfer Taxes to the extent related to, incurred in connection with or arising from the Pre-Closing Reorganization.

 

1.200       Pre-Closing Tax Period” means each taxable period ending on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date.

 

1.201       Pre-Closing Taxes” means, without duplication, (a) all Taxes imposed on or with respect to the Business Entities, the Contributed Business Assets or the Business, in each case that are attributable to any Pre-Closing Tax Period (such Taxes for a Straddle Period to be apportioned in accordance with Section 6.12(d)), (b) all Taxes (other than Post-Closing Taxes) of Amber GT Parent or any of its Affiliates (other than the Business Entities), (c) Taxes imposed on any Business Entity as a result of having been a member of any “affiliated group” (as defined in Section 1504 of the Code) (or any similar provision of Law) of which such Business Entity is or was a member on or prior to the Closing under or by reason of Treasury Regulation Section 1.1502-6(a) (or any similar provision of Law) and (d) all Pre-Closing Reorganization Transfer Taxes; provided that this clause (d) is the only clause of this definition that includes Transfer Taxes.

 

1.202       Pre-Transaction Equity Value” means $175,000,000.

 

1.203       Privacy Laws” means HIPAA, the HITECH Act, the European Union’s General Data Protection Regulation (EU) 2016/679, the California Consumer Privacy Act of 2018, and any similar or analogous federal, state or foreign Laws relating to the access, collection, storage, sharing, securing, distribution, transfer, destruction, processing and use of Personal Information (including any security breach notification requirements and Laws).

 

1.204       Prospectus” has the meaning set forth in Section 11.15.

 

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1.205       Public Health Laws” means all applicable Laws relating to the development, pre-clinical testing, nonclinical testing, manufacture, production, analysis, distribution, importation, exportation, use, handling, quality, sale or promotion of any drug, including any biologic, or medical device, placebo, or other article (including any ingredient or component of the foregoing products) subject to regulation under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301 et seq.), the Public Health Service Act (42 U.S.C. § 262 et seq.), or similar federal, state or foreign Laws.

 

1.206       Public Shareholders” has the meaning set forth in Section 11.15.

 

1.207       Registration Statement / Proxy Statement” means a registration statement on Form S-4 relating to the transactions contemplated by this Agreement and the Additional Agreements and containing a prospectus and proxy statement of ARYA.

 

1.208       Regulatory Permits” means all Permits granted by the FDA or any comparable Authority (whether U.S. or non-U.S.), or an institutional review board or independent ethics committee, including biomarker qualification determinations, drug development tool qualifications, investigational new drug applications, new drug applications, abbreviated new drug applications, biologics license applications, device premarket approval applications, device premarket notifications, investigational device exemptions, and other comparable national or foreign manufacturing approvals and authorizations.

 

1.209       Reimbursement Remainder” means an amount equal to (a) $25,000,000, minus (b) the Unpaid ARYA Transaction Expenses. For the avoidance of doubt, if the Unpaid ARYA Transaction Expenses are equal to or in excess of $25,000,000, then the Reimbursement Remainder shall be $0.

 

1.210       Related to the Business” means exclusively relating to, exclusively held for use with, or exclusively in connection with the Business, in each case, as the context requires.

 

1.211       Remedies Exception” means bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights generally, and subject, as to enforceability to general equity principles (whether considered in a proceeding in equity or at Law).

 

1.212       Representatives” means, with respect to a Person, such Person’s Affiliates and its and such Affiliates’ respective directors, officers, employees, advisors, agents, consultants, attorneys, accountants, investment bankers or other representatives.

 

1.213       Required ARYA Shareholder Approval” means the approval of each Required Transaction Proposal by the affirmative vote of the holders of the requisite number of ARYA Shares entitled to vote thereon, whether in person or by proxy at the ARYA Shareholders Meeting (or any adjournment thereof), in accordance with the Governing Documents of ARYA and applicable Law.

 

1.214       Required Governing Document Proposal” has the meaning set forth in Section 6.7.

 

1.215       Required Transaction Proposals” means, collectively, the Business Combination Proposal, the Domestication Proposal, the Nasdaq Proposal, the Required Governing Document Proposal and the Incentive Equity Plan Proposal.

 

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1.216          Restricted Business” has the meaning set forth in Section 6.18(a).

 

1.217          Restrictive Covenant Period” has the meaning set forth in Section 6.18(a).

 

1.218          Retained Business” means Amber GT Parent’s business of investigating, manufacturing, researching, developing, testing, seeking, applying for, obtaining and maintaining Regulatory Permits for, commercializing, selling and marketing non-gene therapy medicines for Fabry disease and Pompe disease.

 

1.219          Retained Employee” means any employee who is (i) actively employed by Amber GT Parent or any of its Affiliates immediately prior to the Closing and who continues to be so employed as of immediately following the Closing and (ii) is not a Transferred Employee or, for the purposes of Section 6.18(g), an Inactive Business Employee pursuant to the terms of this Agreement.

 

1.220          Retained Names” means the Trademarks set forth in Section 1.219 of the Amber Disclosure Schedules, and any Trademarks related thereto or containing or comprising any of the foregoing, including any Trademarks derivative thereof or confusingly similar thereto, or any telephone numbers or other alphanumeric addresses or mnemonics containing any of the foregoing.

 

1.221          Sanctioned Country” means any country or region that is, or has been in the last five (5) years prior to the date of this Agreement, the subject or target of a comprehensive embargo under Trade Controls (including Cuba, Iran, North Korea, Sudan, Syria, Venezuela and the Crimea region of Ukraine).

 

1.222          Sanctioned Person” means any Person that is the subject or target of sanctions or restrictions under Trade Controls, including: (a) any Person listed on any applicable U.S. or non-U.S. sanctions- or export-related restricted party list, including the U.S. Department of the Treasury Office of Foreign Assets Control’s (“OFAC”) Specially Designated Nationals and Blocked Persons List; (b) any Person that is, in the aggregate, fifty percent (50%) or greater owned, directly or indirectly, or otherwise controlled by a Person or Persons described in clause (a); or (c) any national of a Sanctioned Country.

  

1.223          Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.

 

1.224          Schedules” means, collectively, the Amber Disclosure Schedules and the ARYA Disclosure Schedules.

 

1.225          SEC” means the Securities and Exchange Commission.

 

1.226          Securities Act” means the Securities Act of 1933.

 

1.227          Shared Contracts” means each Contract to which an Amber Entity or any of its Affiliates is a party to or bound materially relating to the Business or that is otherwise material to the operation or conduct of the Business, but not exclusively relating to, exclusively held for use with, or exclusively used in connection with the Business, and not otherwise a Contributed Business Contract, a Contract for which services will be provided pursuant to the Transition Services Agreement or an Employee Benefit Plan.

 

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1.228          Shared Contractual Liabilities” means all Liabilities in respect of Specified Shared Contracts from and after the later of (a) the Closing and (b) the time at which the Company or one of its Affiliates obtains all of the claims, rights and benefits under a Specified Shared Contract.

 

1.229          Signing Filing” has the meaning set forth in Section 11.4(b).

 

1.230          Signing Press Release” has the meaning set forth in Section 11.4(b).

 

1.231          Software” means all computer software, including all source code, object or executable code, firmware, software compilations, software implementations of algorithms, software tool sets, compilers, application programming interfaces, data, databases, software models and methodologies, development tools, files, records, technical drawings and programmer comments and annotations and data relating to the foregoing and any and all modifications, enhancements, updates, upgrades, releases, improvement and derivate works thereof and any documentation related thereto.

 

1.232          Specified Representations” has the meaning set forth in Section 10.1.

 

1.233          Specified Shared Contract” means each Shared Contract set forth on Section 6.17 of the Amber Disclosure Schedules.

 

1.234          Sponsor Letter Agreement” has the meaning set forth in the recitals.

 

1.235          Straddle Period” means any taxable period that begins on or before the Closing Date and ends after the Closing Date.

 

1.236          Subsidiary” or “Subsidiaries” means (a) one or more entities of which at least fifty percent (50%) of the capital stock or share capital or other equity or voting securities are Controlled or owned, directly or indirectly, by the respective Person and (b) any partnership, limited liability company, joint venture or other entity of which the respective Person or any Subsidiary is a general partner, manager, managing member or the equivalent.

 

1.237          Tax Action” means any Action in respect of Taxes.

 

1.238          Tax Claim” has the meaning set forth in Section 6.12(e).

 

1.239          Tax Receivable Agreement” has the meaning set forth in the recitals.

 

1.240          Tax Return” means any return, information return, declaration, or any similar statement, and any amendment thereto, including any attached Schedule and supporting information that is filed with or supplied to, or required to be filed with or supplied to, any Taxing Authority in connection with the determination, assessment, collection or payment of a Tax.

 

1.241          Tax Sharing Agreement” means any agreement or arrangement pursuant to which any Amber Entity, any Business Entity or any Affiliate of the foregoing is or may be obligated to indemnify any Person for, or otherwise pay, any Tax of or imposed on another Person, or pay over to any other Person any amount determined by reference to actual or deemed Tax benefits, Tax assets or attributes or Tax savings.

 

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1.242          Tax(es)” means all U.S. federal, state, local, or non-U.S. net or gross income, net or gross receipts, net or gross proceeds, payroll, employment, excise, stamp, occupation, windfall or excess profits, profits, customs, capital stock, withholding, social security, unemployment, real property, personal property (tangible and intangible), sales, use, transfer, value added, alternative or add-on minimum, capital gains, ad valorem, franchise, capital, estimated, goods and services, premium, environmental or other taxes, assessments, duties or similar charges of any kind whatsoever in the nature of tax, including all interest, penalties and additions to tax imposed by or otherwise payable to any Taxing Authority with respect to the foregoing.

 

1.243          Taxing Authority” means the U.S. Internal Revenue Service and any other Authority responsible for the collection, assessment or imposition of any Tax or the administration of any Law relating to any Tax.

 

1.244          Termination Date” has the meaning set forth in Section 9.1(d).

 

1.245          Third-Party Claim” has the meaning set forth in Section 10.4(b).

 

1.246          Trade Controls” means all U.S. and non-U.S. Laws relating to: (a) economic, trade, and financial sanctions, including those administered and enforced by OFAC, the U.S. Department of State, and the United Nations; (b) export, import, reexport, transfer, and retransfer controls, including those administered and enforced by the U.S. Department of Commerce Bureau of Industry and Security, U.S. Customs and Border Protection, and the United Nations; (c) antiboycott requirements; or (d) the prevention of money laundering.

 

1.247          Trade Secrets” has the meaning set forth in Section 1.143.

 

1.248          Trademarks” has the meaning set forth in Section 1.143.

 

1.249          Transaction Equity Security Amount” means a number of Company Units or ARYA Class B Shares, as applicable, equal to (a) the Pre-Transaction Equity Value, divided by (b) $10.00.

 

1.250          Transaction Proposals” has the meaning set forth in Section 6.7.

 

1.251          Transfer Taxes” means any and all transfer, documentary, sales, use, gross receipts, stamp, registration, value added, recording, escrow and other similar Taxes and fees (including any penalties and interest) incurred in connection with the transactions contemplated by this Agreement.

 

1.252          Transferred Employee” has the meaning set forth in Section 7.1(b).

 

1.253          Transition Committee” has the meaning set forth in Section 6.24.

 

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1.254          Transition Services Agreement” means the Transition Services Agreement, substantially in the form attached as Exhibit H hereto and with such modifications, amendments or supplements in writing as may be mutually agreed to in writing by each of ARYA and Amber GT Parent, to be entered into by Amber GT Parent, Amber GT and certain of their Affiliates identified therein, on the one hand, and ARYA, the Company and certain of their Affiliates identified therein, on the other hand, at the Closing.

 

1.255          Treasury Regulations” means the United States Treasury Regulations promulgated under the Code.

 

1.256          Trust Account” has the meaning set forth in Section 5.8(a).

 

1.257          Trust Account Released Claims” has the meaning set forth in Section 11.15.

 

1.258          Trustee” has the meaning set forth in Section 5.8(a).

 

1.259          Unpaid Amber Entity Transaction Expenses” means the Amber Entity Expenses that are unpaid as of immediately prior to the Closing.

 

1.260          Unpaid ARYA Transaction Expenses” means the ARYA Expenses that are unpaid as of immediately prior to the Closing. Notwithstanding the foregoing or anything to the contrary in this Agreement, in no event shall the Unpaid ARYA Transaction Expenses include any Excluded Liabilities.

 

1.261          WARN Act” means the Worker Adjustment and Retraining Notification Act of 1988 or any similar Laws.

 

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Article II
BUSINESS COMBINATION

 

2.1            Closing Transactions. On the terms and subject to the conditions set forth in this Agreement, the following transactions shall occur in the order set forth in this Section 2.1:

 

(a)          Pre-Closing Reorganization. Prior to the Closing, each of Amber GT Parent and Amber GT shall cause the following transactions to occur: (i) Amber GT Parent shall cause the cancellation of the intercompany receivables that it holds from MiaMed, Inc., a Delaware corporation (“MiaMed”), Amber Biologics Inc., a Delaware corporation (“Amber Biologics”), and Celenex Inc., a Delaware corporation (“Celenex”), provided that, in each case, following the Closing, no Business Entity, ARYA or any of their respective Affiliates shall have any further liability with respect to such intercompany receivables or the cancellation thereof; (ii) MiaMed shall be converted into a Delaware limited liability company in accordance with the DGCL and the Delaware Limited Liability Company Act and become a disregarded entity for U.S. federal income Tax purposes; (iii) Amber GT Parent shall form Amicus GT Intermediate Holdings, LLC a Delaware limited liability company (“Intermediate HoldCo”) that will elect to be treated as an association taxable as a corporation for U.S. federal income Tax purposes effective as of its formation, as a direct and wholly owned Subsidiary; (iv) Amber GT Parent shall make a capital contribution of all of the issued and outstanding Equity Securities of Amber Biologics to Intermediate HoldCo; (v) Amber Biologics shall be converted into a Delaware limited liability company in accordance with the DGCL and the Delaware Limited Liability Company Act and become a disregarded entity for U.S. federal income Tax purposes, and, in connection therewith, Amber Biologics’s name shall be changed to a name to be mutually agreed by ARYA and Amber GT Parent (such agreement not to be unreasonably withheld, conditioned or delayed by either ARYA or Amber GT Parent) (“FL RE Holdings, LLC”); (vi) Amber GT Parent shall make a capital contribution of all of the issued and outstanding Equity Securities of Celenex to Amber GT; (vii) Celenex shall be converted into a Delaware limited liability company in accordance with the DGCL and the Delaware Limited Liability Company Act and become a disregarded entity for U.S. federal income Tax purposes; (viii) Amber GT Parent shall make a capital contribution of all of the issued and outstanding Equity Securities of MiaMed to Amber GT; (ix) Intermediate HoldCo shall make a capital contribution of all of the issued and outstanding Equity Securities of FL RE Holdings, LLC to Amber GT; (x) Amber GT shall make a capital contribution of all of the issued and outstanding Equity Securities of Celenex, MiaMed and FL RE Holdings, LLC to the Company, with each such company becoming a direct and wholly owned Subsidiary of the Company; (xi) subject to Section 6.15, Amber GT Parent shall, and shall cause its Affiliates (other than, for the avoidance of doubt, the Business Entities) to, transfer, convey, assign and deliver to the Company all of Amber GT Parent’s and such Affiliates’ respective right, title and interest, free and clear of any Liens (other than Permitted Liens), in and to the Contributed Business Assets, and the Company shall assume, and thereafter satisfy, discharge and perform when due, the Assumed Business Liabilities; and (xii) in accordance with Section 7.1, transfer the employment of each Business Employee (other than any Inactive Business Employee) to a Business Entity (the transactions described in the foregoing clauses (i) through (xii), collectively, the “Pre-Closing Reorganization”). Notwithstanding anything to the contrary in the foregoing, Amber GT Parent shall be permitted to amend or modify the foregoing transactions with the prior written consent of ARYA (such consent not to be unreasonably withheld conditioned or delayed in the case of clauses (i) through (x)), provided that, without limiting the generality of the foregoing, it shall be deemed to be reasonable for ARYA to withhold, condition or delay its consent to any such amendment or modification that, individually or in the aggregate together with any other amendments or modifications, would reasonably be expected to (A) materially delay the transactions contemplated by this Agreement or by the Additional Agreements, (B) adversely affect, directly or indirectly, ARYA or any of its shareholders, the Business Entities following the Closing, the conduct or operations of the Contributed Business Assets following the Closing, the other rights or remedies of ARYA or the Business Entities following the Closing, or the obligations of any Amber Entity under this Agreement or the Additional Agreements (including, for the avoidance of doubt, the performance of, or compliance with, any covenants or agreements to the extent such covenants or agreements apply or require performance following the Closing) in each case, in any material respect or (C) result in the ARYA or any of the Business Entities being liable for, or having any obligations with respect to, any Excluded Liabilities.

 

(b)          Domestication. On the Closing Date, prior to the Closing, ARYA shall cause the Domestication to occur in accordance with Section 388 of the DGCL and Part XII of the Cayman Islands Companies Act (2021 Revision), including by filing (i) with the Delaware Secretary of State a Certificate of Domestication with respect to the Domestication, in form and substance reasonably acceptable to ARYA and the Company, together with the ARYA Post-Closing Certificate of Incorporation and (ii) making all filings required to be made with the Registrar of Companies in the Cayman Islands in connection with the Domestication. In connection with (and as part of) the Domestication, ARYA shall cause (i) each ARYA Class A Share and each ARYA Class B Share that is issued and outstanding immediately prior to the Domestication to be converted into one share of Class A common stock, par value $0.0001 per share, of ARYA, (ii) the Governing Documents of ARYA to become the certificate of incorporation, substantially in the form attached hereto as Exhibit G (with such changes as may be agreed in writing by ARYA and Amber GT Parent, the “ARYA Post-Closing Certificate of Incorporation”), and the bylaws, substantially in the form attached hereto as Exhibit H (with such changes as may be agreed in writing by ARYA and Amber GT Parent, the “ARYA Post-Closing Bylaws”), and (iii) ARYA’s name to be changed to “Caritas Therapeutics, Inc.”; provided that, if such name is not available in Delaware or ARYA is otherwise unable to change its name to “Caritas Therapeutics, Inc.,” it shall cause its name to change to such other name mutually agreed to by ARYA and Amber GT Parent (such agreement not to be unreasonably withheld, conditioned or delayed by either ARYA or Amber GT Parent).

 

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(c)          Existing Company LLC Interests Re-classification; Purchase of Company Units; Issuance of ARYA Class B Shares. At the Closing, (i) Amber GT and the Company shall cause the Existing Company LLCA to be amended and restated to be in the form of the A&R Company LLC Agreement and, in connection therewith, all of the Existing Company LLC Interests held by Amber GT Parent shall be re-classified into a number of Company Units equal to the Transaction Equity Security Amount, and (ii) substantially concurrently with clause (i), (x) Amber GT Parent shall contribute, or cause to be contributed, to the Company the Amber GT Parent Contribution Amount in exchange for a number of Company Units equal to the Amber GT Parent Contribution Equity Amount, free and clear of all Liens (other than restrictions on transfer under applicable securities Laws, the A&R Company LLC Agreement and the Investor Rights Agreement), (y) ARYA shall contribute, or cause to be contributed, to the Company the Closing Date Contribution Amount in exchange for a number of Company Units equal to the Net Outstanding ARYA Class A Shares, free and clear of all Liens (other than restrictions on transfer under applicable securities Laws, the A&R Company LLC Agreement and the Investor Rights Agreement) and (z) ARYA shall issue a number of ARYA Class B Shares equal to the sum of (A) the Transaction Equity Security Amount and (B) the Amber GT Parent Contribution Equity Amount to Amber GT, free and clear of all Liens (other than restrictions on transfer under applicable securities Laws, the Governing Documents of ARYA and the Investor Rights Agreement).

 

2.2            Closing; Closing Date. Unless this Agreement is earlier terminated in accordance with Article IX, the closing of the transactions contemplated by this Agreement (the “Closing”) shall take place electronically by exchange of the closing deliverables by the means provided in Section 11.8 on a date no later than three (3) Business Days after the satisfaction or, to the extent permitted by applicable Law, waiver of all the conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to satisfaction or waiver of such conditions), or at such other place, date or time as Amber GT Parent and ARYA may mutually agree upon in writing. The date on which the Closing actually occurs is hereinafter referred to as the “Closing Date.

 

2.3            Withholding. ARYA and the Company shall be entitled to deduct and withhold (or cause to be deducted and withheld) from any amount otherwise payable under this Agreement such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code or any other provision of applicable Tax Laws. To the extent that such withheld amounts are paid over to or deposited with the applicable Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding were made. Prior to undertaking any such deduction or withholding pursuant to this Section 2.3, ARYA and the Company shall use commercially reasonable efforts to provide notice to the Person in respect of whom any such deduction or withholding is required and cooperate in good faith with such Person to obtain any reduction or relief from any such deduction or withholding.

 

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Article III
REPRESENTATIONS AND WARRANTIES RELATING TO THE AMBER ENTITIES

 

Subject to Section 11.11, except as set forth in the Amber Disclosure Schedules, each of the Amber Entities hereby represents and warrants to ARYA, in each case, as of the date of this Agreement and as of the Closing, as follows:

 

3.1            Existence and Power. Each Amber Entity is a corporation, limited liability company, limited partnership or other applicable business entity duly incorporated, organized or formed, as applicable, validly existing in good standing (or the equivalent thereof, if applicable, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) under the Laws of its jurisdiction of incorporation, organization or formation, as applicable. Each Amber Entity has all requisite power, authority and capacity, corporate and otherwise, and all Permits and Consents necessary and required to carry on the Business as presently conducted, except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, an Amber Material Adverse Effect.

 

3.2            Authorization. Each Amber Entity has the requisite corporate, limited liability company or other similar power and authority to execute and deliver this Agreement, to perform its covenants, agreements and obligations hereunder and to consummate the transaction contemplated hereby. Each Amber Entity and each of its applicable Affiliates has the requisite corporate, limited liability company or other similar power and authority to execute and deliver each Additional Agreement to which it is or will be a party, to perform its covenants, agreements and obligations thereunder and to consummate the transactions contemplated thereby. The execution and delivery by each Amber Entity of this Agreement, the execution and delivery by each Amber Entity and each of their respective Affiliates of the Additional Agreements to which it is, or will be, a party, the performance by each Amber Entity and each of their respective Affiliates of its covenants, agreements and obligations under this Agreement or any Additional Agreements, as applicable, and the consummation by each Amber Entity and each of their respective Affiliates of the transactions contemplated hereby or thereby, as applicable, are within the respective corporate, limited liability company, or other similar powers and authority of each Amber Entity or each such Affiliate thereof, as applicable, and have been duly authorized by all necessary corporate (or similar) action on the part of each Amber Entity and each of such Affiliate. This Agreement constitutes, and, upon their execution and delivery, each of the Additional Agreements to which an Amber Entity or any of its Affiliates, is, or will be, a party, will constitute, a valid and legally binding agreement of each Amber Entity or each Affiliate thereof, as applicable, enforceable against each such Amber Entity or Affiliate (assuming that this Agreement and the Additional Agreements to which each Amber Entity or each Affiliate thereof is or is contemplated to be a party are or will be upon execution thereof, as applicable, duly authorized, executed and delivered by the non-Affiliated Persons party thereto), as applicable, in accordance with their respective terms, subject to the Remedies Exception.

 

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3.3            Consents and Requisite Governmental Approvals; Non-Contravention.

 

(a)            None of the execution or delivery by any Amber Entity of this Agreement, the execution or delivery by any Amber Entity or any of their respective Affiliates of any Additional Agreement to which it is or will be a party, the performance by any Amber Entity or any of their respective Affiliates of any covenants, agreements or obligations under this Agreement or any Additional Agreements, as applicable, or the consummation of the transactions contemplated hereby or thereby, as applicable, does or will, directly or indirectly (with or without due notice or lapse of time or both): (i) contravene or conflict with any Governing Documents of an Amber Entity or any of its Affiliates, (ii) violate, or constitute a breach under, any Law or Order to which an Amber Entity or any of its Affiliates or any of its properties or assets are subject or bound (including, for the avoidance of doubt, any of the Contributed Business Assets), (iii) result in a violation or breach of, or constitute a default or give rise to any right of termination, cancellation, amendment, modification, suspension, revocation or acceleration or Consent under, any of the terms, conditions or provisions of (A) any Contract to which any Amber Entity or any of its Affiliates is a party or bound (including, for the avoidance of doubt, any Contributed Business Contract or any Leases) or (B) any Business Permit (including, for the avoidance of doubt, any Contributed Regulatory Permit) or (iv) result in the creation or imposition of any Lien (other than Permitted Liens) (A) on any of the Contributed Business Assets (other than any Permitted Liens) or (B) on any Equity Securities of any of the Business Entities, except, in the case of clauses (ii) through (iii), as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, an Amber Material Adverse Effect.

 

(b)            No Consent of any Authority is required on the part of any Amber Entity with respect to its execution or delivery of, or performance of its covenants, agreements or obligations under, this Agreement or the transactions contemplated hereby or on the part of any Amber Entity or any Affiliate thereof with respect to its execution or delivery of, or performance of its covenants, agreements or obligations under, any Additional Agreement to which it is or will be party or the consummation of the transactions contemplated thereby, except for (i) compliance with and filings under the HSR Act, or (ii) any other Consents the absence of which has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, an Amber Material Adverse Effect. There are no votes or other Consents of any class or series of Equity Securities of any Amber Entity or any Affiliate thereof required to adopt or approve this Agreement, the Additional Agreements, the performance of any of the covenants, agreements or obligations of any such Person hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, other than the Company Sole Member Consent.

 

3.4            Finders’ Fees. Except as set forth on Section 3.4 of the Amber Disclosure Schedules, there is no investment banker, broker, finder or other intermediary that has been retained by or on behalf of any Amber Entity or any of its Affiliates who is or may be entitled to any fee, commission or other payment or consideration in connection with the consummation of the transactions contemplated by this Agreement or the Additional Agreements.

 

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3.5            Information Supplied. None of the information supplied or to be supplied by or on behalf of any Amber Entity or any of its Affiliates expressly for inclusion or incorporation by reference in the Registration Statement / Proxy Statement will, when the Registration Statement / Proxy Statement is declared effective or when the Registration Statement / Proxy Statement is mailed to the ARYA shareholders or at the time of the ARYA Shareholders Meeting, and in the case of any post-effective amendment thereto, at the time of such post-effective amendment, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading; provided, however, notwithstanding the foregoing provisions of this Section 3.5, no representation or warranty is made by the Amber Entities or any of their Affiliates with respect to information or statements made or incorporated by reference in the Registration Statement / Proxy Statement that were not supplied by or on behalf of the Amber Entities for use therein.

 

3.6            Investigation; No Other Representations.

 

(a)            Each Amber Entity, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that (i) it has conducted its own independent review and analysis of, and, based thereon, has formed an independent judgment concerning, the business, assets, condition, operations and prospects of, ARYA and (ii) it has been furnished with or given access to such documents and information about ARYA and its businesses and operations as it and its Representatives have deemed necessary to enable it to make an informed decision with respect to the execution, delivery and performance of this Agreement, the Additional Agreements and the transactions contemplated hereby and thereby.

 

(b)            In entering into this Agreement and the Additional Agreements to which it is or will be a party, each Amber Entity has relied solely on its own investigation and analysis and the representations and warranties expressly set forth in Article V and in the Additional Agreements to which it is or will be a party and no other representations or warranties of ARYA or any other Person, either express or implied, and each Amber Entity, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that, except for the representations and warranties expressly set forth in Article V and in the Additional Agreements to which ARYA is a party and to which it is or will be a party, ARYA has not made any representation or warranty, either express or implied, in connection with or related to this Agreement, the Additional Agreements or the transactions contemplated hereby or thereby.

 

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3.7            Exclusivity of Representations and Warranties. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO ARYA OR ANY OF ITS REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION (INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS ARTICLE III, ARTICLE IV OR THE ADDITIONAL AGREEMENTS, NONE OF THE AMBER ENTITIES NOR ANY OTHER PERSON MAKES, AND EACH AMBER ENTITY EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE ADDITIONAL AGREEMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, INCLUDING AS TO THE MATERIALS RELATING TO THE BUSINESS OR THE CONTRIBUTED BUSINESS ASSETS THAT HAVE BEEN MADE AVAILABLE TO ARYA OR ANY OF ITS REPRESENTATIVES OR IN ANY PRESENTATION RELATED TO THE BUSINESS OR THE CONTRIBUTED BUSINESS ASSETS BY OR ON BEHALF OF THE MANAGEMENT OF ANY OF THE AMBER ENTITIES OR ANY OF THEIR AFFILIATES OR OTHERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR BY THE ADDITIONAL AGREEMENTS, AND NO STATEMENT CONTAINED IN ANY OF SUCH MATERIALS OR MADE IN ANY SUCH PRESENTATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY HEREUNDER OR OTHERWISE OR DEEMED TO BE RELIED UPON BY ARYA IN EXECUTING, DELIVERING OR PERFORMING THIS AGREEMENT, THE ADDITIONAL AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE III, ARTICLE IV OR THE ADDITIONAL AGREEMENTS, IT IS UNDERSTOOD THAT ANY COST ESTIMATES, PROJECTIONS OR OTHER PREDICTIONS, ANY DATA, ANY FINANCIAL INFORMATION OR ANY MEMORANDA OR OFFERING MATERIALS OR PRESENTATIONS, INCLUDING ANY OFFERING MEMORANDUM OR SIMILAR MATERIALS MADE AVAILABLE BY OR ON BEHALF OF ANY AMBER ENTITY ARE NOT AND SHALL NOT BE DEEMED TO BE OR TO INCLUDE REPRESENTATIONS OR WARRANTIES OF ANY AMBER ENTITY OR THE COMPANY OR ANY OTHER PERSON, AND, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE III, ARTICLE IV OR THE ADDITIONAL AGREEMENTS, EACH AMBER ENTITY EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, IN CONNECTION THEREWITH. NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT TO THE CONTRARY, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE III, ARTICLE IV OR THE ADDITIONAL AGREEMENTS, NONE OF THE AMBER ENTITIES NOR ANY OTHER PERSON MAKES ANY REPRESENTATIONS OR WARRANTIES TO ARYA REGARDING ANY PROJECTIONS OR THE FUTURE OR PROBABLE PROFITABILITY, SUCCESS, BUSINESS, OPPORTUNITIES, RELATIONSHIPS AND OPERATIONS OF THE COMPANY.

  

Article IV
REPRESENTATIONS AND WARRANTIES RELATING TO THE BUSINESS

 

Subject to Section 11.11, except as set forth in the Amber Disclosure Schedules, each of the Amber Entities hereby represents and warrants to ARYA, in each case, as of the date of this Agreement and as of the Closing, as follows:

 

4.1            Existence and Power. Each Business Entity: (a) is a corporation, limited liability company, limited partnership or other applicable business entity duly incorporated, organized or formed, as applicable, validly existing and in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) under the Laws of its jurisdiction of incorporation, organization or formation, as applicable, (b) has all requisite corporate, limited liability company or other applicable business entity power and authority to own, lease and operate its properties and assets and to carry on the Business as presently conducted, and (c) is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the ownership or operation of the Contributed Business Assets or the conduct of the Business requires such licensing or qualification, except, in the case of this clause (c), as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, an Amber Material Adverse Effect. Section 4.1 of the Amber Disclosure Schedules lists all jurisdictions in which each Business Entity is duly licensed or qualified to do business as of the date hereof. True, correct and complete copies of the Governing Documents of each Business Entity have been made available to ARYA, in each case, as amended and in effect as of the date of this Agreement. The Governing Documents of each Business Entity are in full force and effect, and none of the Business Entities is in breach or violation of any provision set forth in its Governing Documents.

 

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4.2            Capitalization.

 

(a)            Section 4.2(a) of the Amber Disclosure Schedules sets forth a true, correct and complete statement of (i) the number and class or series (as applicable) of all of the Equity Securities of the Business Entities issued and outstanding, and (ii) the identity of the Persons that are the record and beneficial owners thereof. All of the outstanding Equity Securities of each Business Entity have been or will be, in the case of the Company Units to be issued on the Closing Date on the terms and subject to the conditions herein, duly authorized and validly issued, and are, or will be, as applicable, fully paid and nonassessable. The Equity Securities of each Business Entity: (i) were not issued in violation of such Business Entity’s Governing Documents or any other Contract to which such Business Entity is bound, in each case, in any material respect; (ii) were not issued in violation of any preemptive rights, call option, right of first refusal or first offer, subscription rights, transfer restrictions or similar rights of any Person, in each case, in any material respect; (iii) have been offered, sold and issued in compliance in all material respects with applicable Law, including securities Laws, in each case, in any material respect; and (iv) are free and clear of all Liens (other than transfer restrictions under applicable Law or under such Business Entity’s Governing Documents). The Business Entities do not have outstanding (x) equity appreciation, phantom equity or profit participation rights or (y) options, stock appreciation rights, restricted stock, restricted stock units, phantom stock, warrants, purchase rights, subscription rights, conversion rights, exchange rights, calls, puts, rights of first refusal or first offer or other Contracts that could require such Business Entity to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem any Equity Securities or securities convertible into or exchangeable for Equity Securities of such Business Entity. There are no voting trusts, proxies or other Contracts with respect to the voting or transfer of the Business Entities’ Equity Securities. No other class of Equity Securities of the Business Entities is authorized or issued or outstanding and, other than as set forth in Section 4.2(a) of the Amber Disclosure Schedules, there are no outstanding Equity Securities of any Business Entity.

 

(b)            Amber GT will have, immediately prior to the Closing, valid, good and marketable title to all of the Existing Company Units, free and clear of all Liens (other than transfer restrictions under applicable securities Laws or under the Governing Documents of the Company), and all of the outstanding Equity Securities of Amber GT are owned directly by Amber GT Parent.

 

(c)            Except as set forth on Section 4.2(c) of the Amber Disclosure Schedules, none of the Business Entities owns or holds (of record, beneficially, legally or otherwise), directly or indirectly, any Equity Securities in any other Person or the right to acquire any such Equity Securities, and none of the Business Entities are a partner or member of any partnership, limited liability company or joint venture.

 

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(d)            Section 4.2(d) of the Amber Disclosure Schedules sets forth a list of all Change of Control Payments.

 

4.3            Assumed Names. Since January 1, 2019, none of the Amber Entities or any of their respective Affiliates has used the Retained Names to conduct the Business other than those set forth in Section 4.3 of the Amber Disclosure Schedules. Each Amber Entity and each Affiliate thereof (including the Business Entities) has filed appropriate “doing business as” certificates or similar filings in all applicable jurisdictions in which the operation or conduct of the Business would require such certificate or other filing, with respect to itself, except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, an Amber Material Adverse Effect.

 

4.4            Financial Statements; No Undisclosed Liabilities.

 

(a)            The Amber Entities have made available to ARYA true, correct and complete copies of (i) the unaudited combined balance sheets of the Business as of June 30, 2021 (the “Latest Balance Sheet”) and June 30, 2020, and the related unaudited combined statements of operations and comprehensive loss and cash flows of the Business for each of the six-month periods then ended and (ii) the unaudited combined balance sheets of the Business as of December 31, 2020 and December 31, 2019, and the related unaudited combined statements of operations and comprehensive loss, and cash flows of the Business for each year then ended (the financial statements described in clause (a) and clause (b), collectively, the “Financial Statements”), each of which are attached to Section 4.4(a) of the Amber Disclosure Schedules. The Financial Statements (including the notes thereto) (A) were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be specifically indicated in the notes thereto and subject to, in the case of any unaudited financial statements, normal year end audit adjustments (none of which are individually or in the aggregate material) and the absence of notes thereto), (B) fairly present, in all material respects, the financial position, results of operations and cash flows of the Business as at the date thereof and for the period indicated therein (subject to, in the case of any unaudited financial statements, normal year end audit adjustments (none of which are, individually or in the aggregate, material)), and (C) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act (including Regulation S-X or Regulation S-K, as applicable) in effect as of the date of this Agreement, at the time of filing the Registration Statement / Proxy Statement and at the time of effectiveness of the Registration Statement / Proxy Statement.

 

(b)            (i) The audited combined balance sheets of the Business as of December 31, 2020 and December 31, 2019, and the related audited combined statements of operations and comprehensive loss, and cash flows of the Business for each year then ended, and (ii) each of the other financial statements or similar reports of the Business, the Amber Entities or any of their respective Affiliates required to be included in the Registration Statement / Proxy Statement or any other filings to be made by ARYA or any of the Amber Entities with the SEC in connection with the transactions contemplated by this Agreement or any other Additional Agreement (clause (i) and (ii), collectively, the “Closing Company Financial Statements”), when delivered following the date of this Agreement in accordance with Section 6.23, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except, in the case of any audited financial statements, as may be specifically indicated in the notes thereto and subject to, in the case of any unaudited financial statements, normal year end audit adjustments (none of which are individually or in the aggregate material) and the absence of notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Business as at the date thereof and for the period indicated therein (subject to, in the case of any unaudited financial statements, normal year end audit adjustments (none of which are, individually or in the aggregate, material)), (iii) in the case of any audited financial statements, will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Business’ auditors and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act (including Regulation S-X or Regulation S-K, as applicable) in effect as of the date of such delivery, at the time of filing the Registration Statement / Proxy Statement and at the time of effectiveness of the Registration Statement / Proxy Statement.

 

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(c)            Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet (none of which are Liabilities directly or indirectly related to a breach of Contract, breach of warranty, tort, infringement, Action or violation of, or non-compliance with, Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Additional Agreements, the performance by the Business Entities of their respective covenants or agreements in this Agreement or any Additional Agreement to which it is or will be a party or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Business, none of the Business Entities or the Amber Entities (as it relates to the operation or conduct of the Business) have any Liabilities.

 

4.5            Business Activities.

 

(a)            The Company was organized solely for the purposes of holding Equity Securities of the other Business Entities and the Contributed Business Assets and, from and after the Closing, conducting the Business and operating the Contributed Business Assets and has not conducted any activities or businesses other than the activities (i) in connection with or incidental or related to its organization or continuing corporate (or similar) existence, (ii) those incidental or related to or incurred in connection with the negotiation, preparation or execution of this Agreement or any Additional Agreements, the performance of its covenants or agreements in this Agreement or any Additional Agreement or the consummation of the transactions contemplated hereby or thereby, (iii) those that are administrative, ministerial or otherwise immaterial in nature or (iv) those set forth on Section 4.5(a) of the Amber Disclosure Schedules.

 

(b)            Except as set forth on Section 4.5(b) of the Amber Disclosure Schedules, (i) none of the Business Entities are party to or bound by any Contract or have any rights, properties or assets, other than those rights, properties or assets that constitute Contributed Business Assets or are otherwise related to conducting the Business or operating the Contributed Business Assets or rights under any Additional Agreement and (ii) none of the Business Entities have any Liabilities, other than those Liabilities related to conducting the Business or operating the Contributed Business Assets.

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4.6            Internal Controls.

 

(a)            The Amber Entities and their applicable Affiliates have devised and maintain a system of internal accounting controls that are designed to provide reasonable assurances regarding the reliability of financial reporting and the preparation of the Financial Statements in accordance with GAAP (“Internal Controls”). The Internal Controls that are designed to provide, in all material respects, reasonable assurance that (i) transactions are executed only in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Business’ assets. None of the Amber Entities or any of their Affiliates nor an independent auditor of the Business has identified or been made aware of (A) any significant deficiency or material weakness in the system of Internal Controls utilized by the Amber Entities or any of their Affiliates, (B) any fraud that involves management or other employees who have a role in the preparation of the Financial Statements or the Internal Controls utilized by the Amber Entities or any of their Affiliates or (C) any claim or allegation regarding any of the foregoing. To the knowledge of Amber GT Parent, (i) there are no significant deficiencies or material weaknesses in the design or operation of the Internal Controls over financial reporting that would reasonably be expected to adversely affect, in a material manner, the Amber Entities or their Affiliates’ ability to record, process, summarize and report financial information and (ii) there is no Fraud that involves the management of an Amber Entity or any of its Affiliates.

 

(b)            All Contracts, documents, and other papers or copies thereof delivered to ARYA by or on behalf of the Amber Entities and their Affiliates are true, correct and complete in all material respects. The Books and Records accurately and fairly, in all material respects, reflect the transactions by the Business. All accounts, books and ledgers of the Business that form the basis of the Financial Statements have been properly and accurately kept and completed in all material respects.

 

4.7            Absence of Certain Changes. During the period beginning June 30, 2021, and ending on the date of this Agreement, (a) no Amber Material Adverse Effect has occurred and (b) except as expressly contemplated by this Agreement, any Additional Agreement or in connection with the transactions contemplated hereby and thereby, (i) the Amber Entities and their Affiliates have conducted the Business and operated the Contributed Business Assets in the ordinary course in all material respects and (ii) none of the Amber Entities or any of their Affiliates have taken any action that would require the consent of ARYA if taken during the period from the date of this Agreement until the Closing pursuant to Section 6.1(b).

 

4.8             Tangible Personal Property; Sufficiency and Title to Assets.

 

(a)            The Contributed Business Assets, together with any rights, materials, goods and services provided by an Amber Entity or any of its Affiliates following the Closing pursuant to this Agreement, the Co-Development and Commercialization Agreement, the Transition Services Agreement and the Philadelphia Facility Sublease, (i) constitute all of the assets (tangible or intangible), rights, materials, goods and services that are necessary for or used in the conduct of the Business as it is conducted immediately prior to the Closing and (ii) will be sufficient for the conduct of the Business in all material respects immediately following the Closing in the manner in which it is conducted immediately prior the Closing; provided, however, that the representation and warranty set forth in this Section 4.8(a) is not made with respect to Intellectual Property or Computer Systems, which is the subject of Section 4.13(b) to the extent set forth therein.

 

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(b)            All material tangible personal property Related to the Business have no defects, are in good operating condition and repair and function in accordance with their intended uses (ordinary wear and tear excepted) and have been properly maintained, and are suitable for their present uses and meet all specifications and warranty requirements with respect thereto, in each case, except as is not and would not be reasonably expected to be, individually or in the aggregate, material to the Business.

 

(c)            The Amber Entities and their Affiliates collectively have, or as of immediately prior to the Closing will have, good and valid title to, or a valid leasehold or other interest in, all of the tangible Contributed Business Assets, in each case free and clear of all Liens (other than Permitted Liens).

 

4.9            Litigation. There is no, and since January 1, 2019, there has been no, Actions pending against, or to the knowledge of Amber GT Parent, threatened against, any Amber Entity or any of their respective Affiliates that relates to the Contributed Business Assets, the Assumed Business Liabilities or the operation or conduct of the Business or otherwise against any Business Entity that, if adversely decided or resolved, would or would reasonably be expected to be, individually or in the aggregate, material to the Business, taken as a whole. None of the Amber Entities or any of their Affiliates is subject to or bound by any material Order that relates to the Contributed Business Assets, the Assumed Business Liabilities or the operation or conduct of the Business, and none of the Business Entities is otherwise subject to or bound by any material Order. As of the date of this Agreement, there are no material Actions by an Amber Entity or any of its Affiliates that relates to the Contributed Business Assets, the Assumed Business Liabilities or the operation or conduct of the Business pending against any other Person, and there are no other material Actions by a Business Entity pending against any other Person.

 

4.10          Contracts.

 

(a)            Section 4.10(a) of the Amber Disclosure Schedules sets forth, as of the date of this Agreement, a list of the following Contracts, to which an Amber Entity or any of its Affiliates is a party to or bound by:

 

(i)             each Gene Therapy Portfolio Contract;

 

(ii)            each Contract relating to Indebtedness of any Business Entity or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of any Business Entity or the Contributed Business Assets;

 

(iii)           each Contract under which any Amber Entity or any of its Affiliates is lessee of or holds or operates, in each case, any tangible property (other than real property) related to or arising out of the Business, owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $250,000;

 

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(iv)            each Contract under which any Amber Entity or any of its Affiliates is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property) related to or arising out of the Business, except for any lease or agreement under which the aggregate annual rental payments do not exceed $250,000;

 

(v)             each (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization, co-development, research and development or other similar Contract related to or arising out of the Business, in each case, that requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from any Business Entity in excess of $1,000,000 over the life of the Contract, (B) Contract Related to the Business pursuant to which Intellectual Property owned by any Person is licensed to an Amber Entity or any of its Affiliates, (C) Contract related to or arising out of the Business granting to any Person a license to Contributed Business IP (except, with respect to (A)-(C) of the foregoing, any material transfer agreements, clinical trial agreements, nondisclosure agreements, services agreements, commercially available Software or technology licenses or other Contract in which the grant of rights is incidental and not material to performance under such Contract) for any non-exclusive licenses granted to customers of the Business in the ordinary course of business) or (D) Contract that provides for any sale, assignment or transfer of ownership to or from a Third Party of Contributed Business IP that exists as of the Closing (other than assignments of Intellectual Property created or developed by employees or contractors on behalf of the Business and any other Contact in which the grant of rights is incidental or not material to performance under such Contract);

 

(vi)            each Contract that (A) limits or purports to limit, in any material respect, the freedom of the Business or any Business Entity to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of ARYA or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions related to the Business or (C) contains any other provisions restricting or purporting to restrict the ability of the Business or any Business Entity to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer in any material respect or that would so limit or purports to limit, in any material respect, ARYA or any of its Affiliates after the Closing;

 

(vii)           each Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Business or any Business Entity in an amount in excess of (A) $250,000 annually or (B) $500,000 over the life of the Contract;

 

(viii)          each Contract requiring the Business or any Business Entity to guarantee the Liabilities of any Person (other than the Business Entities to the extent related to the Business) or pursuant to which any Person (other than another Business Entity) has guaranteed the Liabilities of a Business Entity, in each case in excess of $500,000;

 

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(ix)             each Contract under which the Business or any Business Entity has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person or made any capital contribution to, or other investment in, any Person;

 

(x)              each Contract required to be disclosed on Section 4.21 of the Amber Disclosure Schedules;

 

(xi)             each Contract with any Person (A) pursuant to which the Business or any Business Entity (or ARYA or any of its Affiliates after the Closing) may be required to pay milestones, royalties or other contingent payments based on any investigation, manufacture, research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Amber Entity or any of its Affiliates granted to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any Contributed Business Assets, Business Products or any Intellectual Property;

 

(xii)            each Contract providing for any Change of Control Payment;

 

(xiii)          each Contract for the disposition of any material assets or properties of the Business or for the acquisition of any material properties or assets that would constitute Contributed Business Assets if held by an Amber Entity or any of its Affiliates immediately prior to the Closing;

 

(xiv)           each settlement, conciliation or similar Contract related to the Business or the Contributed Business Assets (A) the performance of which would be reasonably likely to involve any payments after the date of this Agreement, (B) with an Authority or (C) that imposes or is reasonably likely to impose, at any time in the future, any material, non-monetary obligations on any Business Entity (or ARYA or any of its Affiliates after the Closing);

 

(xv)            each Contract with an Authority related to the Business;

 

(xvi)           each Contract with a Material Supplier;

 

(xvii)          each other Contract that constitutes a Contributed Business Contract or a Shared Contract; and

 

(xviii)        each other Contract Related to the Business, the performance of which requires either (A) annual payments to or from any Amber Entity or any of its Affiliates in excess of $1,000,000 or (B) aggregate payments to or from any Amber Entity or any of its Affiliates in excess of $1,000,000 over the life of the Contract and, in each case, is not terminable by the applicable Amber Entity or Affiliate thereof without penalty upon less than thirty (30) days’ prior written notice.

 

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(b)            Each Contract disclosed or required to be disclosed pursuant to Section 4.10(a) (each, a “Material Business Contract”) represents the valid and binding obligation of an Amber Entity or an Affiliates thereof and, to the knowledge of Amber GT Parent, represents the valid and binding obligations of the other parties thereto, and is in full force and effect, and none of the Amber Entities, any of their Affiliates or, to the knowledge of Amber GT Parent, any other party thereto, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Business Contract. None of the Amber Entities or any of their Affiliates has assigned, delegated, or otherwise transferred any of their material rights or obligations with respect to any Material Business Contracts, or granted a power of attorney with respect thereto. The Amber Entities have made available to ARYA true, correct and complete copies of each Material Business Contract as of the date of this Agreement. As of the date hereof, none of the Amber Entities or any of their Affiliates has received any written, or to the knowledge of Amber GT Parent, oral notice to terminate any Material Business Contracts or to amend in any material respect, or not renew any Material Business Contract.

 

4.11          Licenses and Permits. Section 4.11 of the Amber Disclosure Schedules contains a true, correct and complete list of each material Permit that is required for the ownership or use of the Contributed Business Assets or the operation or conduct of the Business, in each case as conducted or owned by an Amber Entity or any of its Affiliates on the date hereof (collectively, the “Business Permits”), together with the name of the Authority issuing the same and the holder of the Business Permit. The Business Permits are valid and in full force and effect, and none of the Business Permits will be terminated or become terminable as a result of the transactions contemplated hereby, except, in each case, as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, an Amber Material Adverse Effect. The Amber Entities and their Affiliates have all Business Permits necessary to operate the Business in the manner in which it is now operated, except where the absence of such permit has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, an Amber Material Adverse Effect. None of the Amber Entities or any of their Affiliates is in default or violation of any term, condition or provision of any Business Permit, except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, an Amber Material Adverse Effect. Since January 1, 2019, none of the Amber Entities or their Affiliates has received any written notice of any Action or investigation relating to the revocation, nonrenewal, suspension or modification of any Business Permit, except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, an Amber Material Adverse Effect.

 

4.12          Compliance with Laws. Subject to Section 4.14, the Amber Entities and their Affiliates are, and since January 1, 2019, have been, in compliance in all material respects with all applicable Laws and Orders (to the extent applicable or related to their ownership of the Contributed Business Assets or the operation or conduct of the Business). Since January 1, 2019, to the extent applicable to its ownership of the Contributed Business Assets or the operation or conduct of the Business, none of the Amber Entities or their Affiliates has received any notice of or, to the knowledge of Amber GT Parent, been charged with any violation of any Laws, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Business.

 

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4.13          Intellectual Property.

 

(a)            Section 4.13 of the Amber Disclosure Schedules sets forth a true, correct and complete list, as of the date hereof, of all registered, patented or applied for Intellectual Property (including domain names) that are Contributed Business IP and owned by any Amber Entity or its Affiliates (whether exclusively or jointly with another Person) specifying as to each, as applicable: (A) the nature of such Intellectual Property (e.g., whether a Patent, Trademark, Copyright, or domain name); (B) the owner of such Intellectual Property; (C) the jurisdictions by or in which such Intellectual Property has been issued or registered or in which an application for such issuance or registration has been filed; (D) the applicable registration or serial number of such Intellectual Property; and (E) where such Intellectual Property is jointly owned with any other Person, the applicable joint owner. Since January 1, 2019, none of the Amber Entities or their Affiliates (to the extent applicable to their ownership of the Contributed Business IP or the operation or conduct of the Business) have received any written claims or been a party to any Action contesting the validity, use, ownership, enforceability or registrability of any of the Contributed Business IP. All of the registered Contributed Business IP is subsisting and, to the knowledge of Amber GT Parent, enforceable, valid and in full force and effect.

 

(b)            Except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Business, the Amber Entities and their Affiliates exclusively own and possess, and the Company or another Business Entity will (i) exclusively own and possess at Closing, all right, title and interest to and in all Owned Intellectual Property that is Contributed Business IP, and (ii) at Closing have the right to use pursuant to the Co-Development and Commercialization Agreement, the Intellectual Property License, the Transition Services Agreement or a valid and enforceable written Contract set forth in Section 4.13(b) of the Amber Disclosure Schedules all other Intellectual Property used in or held for use by the Amber Entities in the Business, all of which Intellectual Property in clauses (i) and (ii) includes all Intellectual Property necessary for or material to the operation or conduct of the Business as currently conducted and as currently proposed to be conducted by the Amber Entities and their Affiliates, in the case of clause (i), free and clear of all Liens (other than Permitted Liens; provided that this Section 4.13(b) is not a representation or warranty with respect to infringement, misappropriation or other violation of Intellectual Property).

 

(c)            (i) Since January 1, 2019, none of the Amber Entities or their Affiliates (to the extent applicable to their ownership of the Contributed Business IP or the operation or conduct of the Business) has been charged in, or been a defendant, in any Action, or received any written notice, relating to any actual, alleged or suspected infringement, misappropriation or violation of any Intellectual Property of any third party by an Amber Entity or its Affiliates; (ii) there is no other material claim currently pending against any Amber Entity or its Affiliates of infringement of any Intellectual Property of a third party by any Amber Entity or its Affiliates related to or arising out of the Business; and (iii) to the knowledge of Amber GT Parent, as of the date hereof, there is currently no continuing, and since January 1, 2019 there has not been any, infringement, misappropriation, or violation by any other Person of any Owned Intellectual Property used or held for use in the Business or other Contributed Business IP.

 

(d)            To the knowledge of Amber GT Parent, as of the date hereof, neither the current operation or current conduct of the Business nor the current use by the Amber Entities or their Affiliates of any Owned Intellectual Property that is Contributed Business IP infringes, misappropriates, or violates, and has not since January 1, 2019 infringed, misappropriated, or violated, the Intellectual Property of any third party.

 

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(e)            Since January 1, 2019, all employees, agents, consultants or contractors of the Amber Entities or their Affiliates who have contributed to or participated in the creation or development of any material Owned Intellectual Property exclusively used or held for use in the Business either: (i) is a party to a written, valid and enforceable “work-for-hire” agreement under which an Amber Entity or one of its Affiliates is deemed to be the owner or author of all Intellectual Property rights created or developed by such Person; or (ii) has executed a written assignment, or by operation of law has assigned, to an Amber Entity or one of its Affiliates all right, title and interest in and to all Intellectual Property created or developed by such Person. All employees, agents, consultants, contractors or other Persons to whom the Amber Entities or their Affiliates have granted access to any material Trade Secrets or confidential information included in the Contributed Business Assets are subject to obligations regarding non-disclosure and confidentiality. To the knowledge of Amber GT Parent, no Person is in material breach of any such agreement or obligation referenced in this Section 4.13(e) with respect to any Intellectual Property, Trade Secrets or confidential information that is material to the Business.

 

(f)             The Amber Entities and their Affiliates have taken reasonable measures to safeguard and maintain the confidentiality of all Trade Secrets and other Owned Intellectual Property that are confidential and material to the operation or conduct of the Business.

 

4.14          Information Technology and Data Matters.

 

(a)            Except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Business, to the extent applicable to the operations of the Contributed Business Assets in the operation or conduct of the Business, (i) all Computer Systems are in good operating condition and operate in accordance with their applicable documentation in all material respects, and (ii) to the knowledge of Amber GT Parent, none of the Computer Systems contains any Disabling Code. The Amber Entities and their Affiliates (to the extent applicable to their ownership of the Contributed Business Assets in the operation or conduct of the Business) employ commercially reasonable protection and security measures (including commercially reasonable physical, organizational and technological measures) designed to protect the confidentiality, integrity and security of the Computer Systems and designed to detect and safeguard against Disabling Code. The Amber Entities and their Affiliates have in place business continuity and disaster recovery plans that are designed to minimize and mitigate the occurrence, duration and effect of any unscheduled unavailability of the Computer Systems to the extent related to the operation or conduct of the Business. Except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Business, to the knowledge of Amber GT Parent, to the extent related to the operation or conduct of the Business, there have been no (i) successful unauthorized intrusions or breaches of the security of the Computer Systems, (ii) prolonged periods of unscheduled unavailability of the Computer Systems, or (iii) failures, breakdowns or continued substandard performance of the Computer Systems, in each case that have caused any substantial disruption or interruption in or to the use of the Computer Systems, taken as a whole.

 

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(b)            Since January 1, 2019, the Amber Entities and their Affiliates comply with, and have complied with, all Data Security Requirements in all material respects in the operation or conduct of the Business. Except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Business and to the extent applicable or related to the ownership of the Contributed Business Assets in the operation or conduct of the Business, none of the Amber Entities or any of their Affiliates has experienced any breach of security, phishing incident, ransomware or malware attack, or other incident in which confidential information, Trade Secrets or Personal Information, was, or to the knowledge of Amber GT Parent, may have been, accessed, disclosed, or exfiltrated in an unauthorized manner, and none of the Amber Entities or any of their Affiliates has received any written notices or complaints from any Person or been the subject of any material Action with respect thereto.

 

4.15          Employees.

 

(a)             Section 4.15(a)(i) of the Amber Disclosure Schedules provides a true, correct and complete list of all Business Employees as of the date hereof (as such Schedule may be updated prior to the Closing by Amber GT Parent in accordance with Section 7.1(a), the “Business Employees List”), and Section 4.15(a)(ii) of the Amber Disclosure Schedules provides a true, correct and complete list of each other employee of the Amber Entities or any of their Affiliates as of the date hereof who primarily provides services to the Business. The Business Employees List also sets forth a true, correct and complete list, in all material respects, of the following information for each such Business Employee as of the date hereof (and without, for the avoidance of doubt, giving effect to any updates pursuant to Section 7.1(a) after the date hereof): (i) employee identification number, (ii) current job title, (iii) current annual salary or hourly rate of pay, as applicable, (iv) annual target incentive compensation opportunity, (v) primary work location, (vi) hire date, (vii) leave status (including type of leave, start date and anticipated return date (if known)), (viii) work visa details (including type of work visa, dates of validity and sponsoring entity), and (ix) accrued, unused vacation, in each case to the extent permitted by applicable Law. To the knowledge of Amber GT Parent, no Business Employee with annualized compensation at or above $250,000 intends to terminate his or her employment or at any time within twelve (12) months of the date hereof or has provided notice of any such termination of employment. Section 4.15(a)(ii) of the Amber Disclosure Schedules provides a true, correct and complete list of all Business Contractors as of the date hereof.

 

(b)            The Business Employees are sufficient in number and skill to operate the Business as of immediately following the Closing in the same manner as the Business was operated immediately prior to Closing, taking into account the services that will be provided to the Business Entities under the Transition Services Agreement following the Closing.

 

(c)             None of the Amber Entities or any of their Affiliates (with respect to the Business Employees or to the extent applicable to their ownership of the Contributed Business Assets or related to the operation or conduct of the Business) is a party to, bound by, or subject to any CBA, and no Business Employees are represented by any labor union or other labor organization with respect to their employment. There are no, and since January 1, 2019, there have not been any actual, or, to the knowledge of Amber GT Parent, threatened unfair labor practice charges, material labor grievances, material labor arbitrations, strikes, lockouts, work stoppages, slowdowns, picketing, hand billing or other material labor disputes against or affecting the Amber Entities or any of their Affiliates (with respect to the Business) or any union organizing activities with respect to the Business or any Business Employees.

 

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(d)            To the knowledge of Amber GT Parent, no Business Employee, Business Contractor or former employee or independent contractor of the Business is in any material respect in violation of any term of any employment agreement, nondisclosure agreement, non-competition agreement, non-solicitation agreement, restrictive covenant or similar obligation owed to (i) the Amber Entities or their Affiliates (to the extent applicable to their ownership of the Contributed Business Assets or related to the operation or conduct of the Business) or (ii) any third party with respect to such Person’s right to be employed or engaged by the Amber Entities or their Affiliates (to the extent applicable to their ownership of the Contributed Business Assets or related to the operation or conduct of the Business).

 

(e)             The Amber Entities and their Affiliates (with respect to the Business Employees or to the extent applicable to their ownership of the Contributed Business Assets or related to the operation or conduct of the Business) are, and since January 1, 2019 have been, in compliance in all material respects with all applicable Laws respecting labor, employment and employment practices, including all Laws respecting terms and conditions of employment, health and safety, wages and hours (including the classification of independent contractors and exempt and non-exempt employees), immigration (including the completion of Forms I-9 for all U.S. employees), employment harassment, discrimination or retaliation, whistleblowing, disability rights or benefits, equal opportunity, plant closures and layoffs (including the WARN Act), employee trainings and notices, workers’ compensation, labor relations, employee leave issues, COVID-19, affirmative action and unemployment insurance.

 

(f)             Except as would not result in a material Liability, the Amber Entities and their Affiliates (with respect to the Business) have fully and timely paid all wages, salaries, wage premiums, commissions, bonuses, fees, or other compensation that has come due and payable to all Business Employees, Business Contractors and former employees and independent contractors of the Business under applicable Law, Contract or policy, and each individual who is providing, or since January 1, 2019, has provided, services for the Business and is, or was, classified and treated as an independent contractor, consultant, leased employee, or other non-employee service provider, or exempt employee, in each case, is, and has been, properly classified and treated as such for all applicable purposes.

 

(g)            No mass layoffs, facility closures or shutdowns (whether voluntary or by Order), reductions-in-force, furloughs, temporary layoffs, material reductions in salary or wages or other material workforce changes affecting employees or independent contractors of the Business has occurred since March 1, 2020, or is currently, planned or announced, as a result of COVID-19 or any Law, Order, directive, guidelines or recommendations by any Authority in connection with or in response to COVID-19. None of the Amber Entities or any of their Affiliates (with respect to the Business) have otherwise experienced any material employment-related liability with respect to COVID-19.

 

4.16          Employment Benefit Plans.

 

(a)            Section 4.16(a) of the Amber Disclosure Schedules sets forth a true, correct and complete list of each material Employee Benefit Plan.

 

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(b)            The Amber Entities have provided ARYA with, to the extent applicable, (i) true, correct and complete copies of each material Employee Benefit Plan, (ii) any related trust agreement or other funding instrument, (iii) the most recent IRS determination or opinion letter, (iv) any summary plan description, (v) any non-routine correspondence with any Authority since January 1, 2020, relating to any Employee Benefit Plan and (vi) the most recent financial statements and Form 5500 annual report (including attached schedules).

 

(c)             Each Employee Benefit Plan (and each related trust, insurance contract or fund) has in all material respects, been funded, administered and maintained, in form and operation, in accordance with its terms and with the applicable requirements of all applicable Law, including, without limitation (and where applicable) ERISA and the Code. None of the Business Entities has incurred any material penalty or Tax (whether or not assessed) under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code and, to the knowledge of Amber GT Parent, no circumstances or events have occurred that could reasonably be expected to result in the imposition of any such penalties or Taxes.

 

(d)            All contributions, premiums or other payments that are due have been paid in all material respects on a timely basis with respect to each Employee Benefit Plan.

 

(e)             Each Employee Benefit Plan that is intended to meet the requirements of a “qualified plan” under Section 401(a) of the Code has received a favorable determination letter or is entitled to rely on a favorable opinion letter from the Internal Revenue Service to the effect that such Employee Benefit Plan meets the requirements of Section 401(a) of the Code and no event has occurred and no condition exists with respect to the form or operation of such Employee Benefit Plan which could reasonably be expected to cause the loss of such qualified status of any such Employee Benefit Plan.

 

(f)             No member of the Business Entities maintains, sponsors, contributes to or has any Liability with respect to (i) any pension plan that is subject to Title IV of ERISA or (ii) any “multiemployer plan” (as such term is defined under Section 4001(a)(3) of ERISA), including as a consequence of at any time being considered a single employer under Section 414 of the Code or Section 4001(b) of ERISA with any other Person.

 

(g)            No Employee Benefit Plan provides nor do any Business Entities have any current or potential obligation to provide post-termination or post-ownership health, life or other welfare benefits to Business Employees other than as required under Section 4980B of the Code or any similar applicable law for which the covered individual pays the full cost of coverage.

 

(h)            Except as would not result in a Liability to the Business Entities, there do not exist any pending or, to the knowledge of Amber GT Parent, threatened claims (other than routine claims for benefits), suits, actions, disputes, audits or investigations with respect to any Employee Benefit Plan.

 

(i)              Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement could (alone or in combination with any other event) (i) result in the forgiveness of any indebtedness of any current or former Business Employees, (ii) increase the amount or value of any compensation or benefits payable to any current or former Business Employees, (iii) result in the acceleration of the time of payment or vesting, or trigger any payment or funding or forfeiture of any compensation or benefits to any current or former Business Employee under any Employee Benefit Plan or otherwise, or (iv) result in severance pay or any increase in severance pay upon any termination of employment.

 

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(j)              Neither the execution and delivery of this Agreement nor the approval or consummation of the transactions contemplated by this Agreement could (either alone or in connection with any event) result in any payment or benefit (whether in cash or property or the vesting of property) to any “disqualified individual” (within the meaning of Section 280G of the Code) that could, individually or in combination with any other such payment, constitute an “excess parachute payment” (within the meaning of Section 280G(b)(1) of the Code).

 

(k)             Each Employee Benefit Plan that is a “non-qualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code) has been maintained, in all material respects in form and operation in compliance with the requirements of Section 409A of the Code and applicable guidance issued thereunder and, to the knowledge of Amber GT Parent, no amount under any such Employee Benefit Plan is or has been subject to the interest and additional Tax set forth under Section 409A(a)(1)(B) of the Code.

 

(l)              No Business Entity has any obligation to make a “gross-up” or similar payment in respect of any Taxes or related interest or penalties that may become payable under Section 4999 or 409A of the Code.

 

4.17          Real Property.

 

(a)             Section 4.17(a) of the Amber Disclosure Schedules sets forth the address of each Contributed Owned Real Property. With respect to each Contributed Owned Real Property: (i) an Amber Entity or one of its Affiliates (as the case may be) has good and marketable indefeasible fee simple title to such Contributed Owned Real Property, free and clear of all liens and encumbrances, except Permitted Liens: (ii) except as set forth in Section 4.17(a) of the Amber Disclosure Schedules, none of the Amber Entities or their Affiliates has leased or otherwise granted to any Person the right to use or occupy such Contributed Owned Real Property or any portion thereof; and (iii) other than the right of the Company pursuant to this Agreement, there are no outstanding options, rights of first offer or rights of first refusal to purchase such Contributed Owned Real Property or any portion thereof or interest therein. None of the Amber Entities or their Affiliates is a party to any agreement or option to purchase any real property or interest therein related to or arising out of the Business.

 

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(b)            Section 4.17(b) of the Amber Disclosure Schedules sets forth the address of each Contributed Leased Real Property and a true, correct and complete list of all Leases (including the date and name of the parties to such Lease). The Amber Entities have delivered to ARYA a true, correct and complete copy of each such Lease document (including all amendments, extensions, renewals, guaranties and other agreements with respect thereto). With respect to each Lease: (i) such Lease is valid, binding and in full force and effect, subject to the Remedies Exception and Permitted Liens; (ii) there exists no breach, default or event of default thereunder by any of the Amber Entities or any of their Affiliates party thereto; (iii) none of the parties to such Lease is in breach or default under such Lease and no party to such Lease has received notice of default or termination thereunder, and no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute a breach or default, or permit the termination, modification or acceleration of rent under such Lease; (iv) none of the Amber Entities or their Affiliates has subleased, licensed or otherwise granted any Person the right to use or occupy the Contributed Leased Real Property or any portion thereof; and (v) none of the Amber Entities or any of their respective Affiliates has collaterally assigned or granted any other security interest in such Lease or any interest therein. The Contributed Leased Real Property is in a state of maintenance and repair in all material respects adequate and suitable for the purposes for which it is presently being used in all material respects, and there are no material repair or restoration works likely to be required in connection with any of the Contributed Leased Real Property.

 

(c)            The Contributed Real Property comprises all of the real property used or intended to be used in, or otherwise related to, the Business.

 

4.18          Tax Matters.

 

(a)            All material Tax Returns required to be filed by or in respect of the Business have been duly and timely filed and all such Tax Returns are true, correct and complete in all material respects. All material amounts of Taxes due and owing by or in respect of Amber GT Parent or any of its Affiliates related to the Business have been duly and timely paid in full to the appropriate Taxing Authority (or are being contested in good faith by appropriate proceedings, in each case for which adequate reserves have been established with respect to such Taxes in the Financial Statements in accordance with GAAP).

 

(b)            Each of Amber GT Parent and its Affiliates has (i) complied in all material respects with all applicable Laws relating to the reporting, payment, collection and withholding of Taxes and (ii) duly and timely withheld or collected and paid over to the appropriate Taxing Authority all material Taxes required to be withheld or collected by them, in each case, to the extent related to the operation or conduct of the Business.

 

(c)            There is no Action with respect to a material amount of Taxes of Amber GT Parent or any of its Affiliates, in each case which Taxes relate to or arise out of the Business, that is currently pending or ongoing, or that has been threatened in writing, and has not been fully resolved.

 

(d)            No statute of limitations in respect of the assessment or collection of any material Taxes of Amber GT Parent or any of its Affiliates related to the Business has been waived or extended, which waiver or extension is in effect.

 

(e)            There is no Lien (other than Liens for Taxes not yet due and payable or that may be paid without penalty or other Permitted Liens) for Taxes related to or arising out of the Business upon any of the assets of Amber GT Parent or any of its Affiliates.

 

(f)             No claim or Action has been made in writing or commenced by a Taxing Authority in a jurisdiction where Amber GT Parent or any of its Affiliates has not paid any Tax or filed Tax Returns, in each case related to or arising out of the Business, asserting that Amber GT Parent or such Affiliate is or may be subject to Tax or required to file Tax Returns in such jurisdiction related to or arising out of the Business. None of the Business Entities currently has a permanent establishment (as defined in an applicable Tax treaty) or other fixed place of business in a country other than the country in which it is organized. None of the Business Entities is required to pay Taxes on its net income in any country other than its country of organization.

 

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(g)             No Business Entity is a party to any Tax Sharing Agreement (other than an Ordinary Course Tax Sharing Agreement).

 

(h)             No election under Treasury Regulation Section 301.9100-22 (or any similar provision of state, local, or non-U.S. Laws) has been made with respect to the Business Entities.

 

(i)              None of the Business Entities will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting made prior to the Closing or use of an improper method of accounting for a taxable period (or portion thereof) ending on or prior to the Closing Date, (ii) “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law) executed prior to the Closing, (iii) intercompany transactions occurring, or any excess loss account existing, prior to the Closing, in each case as described in Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or non-U.S. Law), (iv) installment sale or open transaction disposition made prior to the Closing or (v) prepaid amount or advanced payment received outside of the ordinary course of business, or deferred revenue accrued, prior to the Closing.

 

(j)              Each of the Business Entities is registered for the purposes of sales Tax, use Tax, value-added Taxes, or any similar Tax in all jurisdictions where it is required by Law to be so registered, and has complied in all material respects with all Laws relating to such Taxes.

 

(k)             None of the Business Entities (i) has engaged or participated in any “listed transaction” within the meaning of Section 6707A(c)(2) of the Code and applicable Treasury Regulations thereunder, (ii) has any Liability for material Taxes of any Person (other than Amber GT Parent or any of its Affiliates) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law), as a result of being (or having been) a member of an affiliated, consolidated, unitary, or other group for applicable Tax purposes, as a transferee or successor, by Contract or otherwise, or (iii) is subject to or has requested any private letter ruling (or similar ruling) from any Taxing Authority that is still in effect (or pending if requested).

 

(l)              In the two (2) years prior to the date of this Agreement, no Business Entity has been a “distributing corporation” or a “controlled corporation” (as such terms are used in Section 355 of the Code) in a distribution intended or purported to qualify in whole or in part for Tax-deferred treatment under Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code).

 

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(m)           (i) None of the Business Entities has deferred any “applicable employment taxes” (as defined in Section 2302(d)(1) of the CARES Act) that may be deferred pursuant to Section 2302 of the CARES Act; (ii) none of the Business Entities has deferred any payroll Tax obligations (including those imposed by Sections 3101(a) and 3201 of the Code) pursuant to or in connection with the Payroll Tax Executive Order; and (iii) none of the Business Entities nor any Affiliate that would be aggregated with such Business Entity and treated as one employer for purposes of Section 2301 of the CARES Act, has sought or obtained, or intends to seek or obtain a covered loan under paragraph (36) of Section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as added by Section 1102 of the CARES Act. To the extent applicable, each Business Entity has properly complied in all material respects with all Laws and duly accounted for any available Tax credits under Sections 7001 through 7005 of the FFCRA and Section 2301 of the CARES Act or any similar provision of state or local Law.

 

(n)            None of the Business Entities (nor any predecessor thereof) was in existence prior to January 1, 1994.

 

4.19          Environmental Laws.

 

(a)            Except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, an Amber Material Adverse Effect, to the extent applicable to their ownership or operation of the Contributed Business Assets or the operation or conduct of the Business: (i) the Amber Entities and their Affiliates are currently and since January 1, 2019, have been in compliance with all Environmental Laws; (ii) without limiting the generality of the foregoing, the Amber Entities and their Affiliates have, since January 1, 2019, obtained, maintained and complied with, and are currently in compliance with, all Permits required pursuant to Environmental Laws for the ownership or use of the Contributed Business Assets or the operation or conduct of the Business; (iii) none of the Amber Entities or any of their respective Affiliates has received any notice, report or other information regarding any actual or alleged violation of or Liabilities under any Environmental Laws; (iv) there are no Actions pending or, to the knowledge of Amber GT Parent, threatened against any Amber Entity or any of its Affiliates with respect to violations of or Liabilities under Environmental Laws; (v) none of the Amber Entities, nor any of their predecessors or Affiliates, has treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled or released, owned or operated any property or facility contaminated by, or exposed any Person to any Hazardous Material so as to give rise to Liabilities under any Environmental Laws; and (vi) none of the Amber Entities or any of their respective Affiliates has assumed, undertaken, become subject to or provided an indemnity with respect to any Liability of any other Person relating to Environmental Laws.

 

(b)            The Amber Entities have delivered to ARYA all environmental and occupational safety and health related audits, assessments, reports and other material documents relating to the Business, the Contributed Business Assets or the current or former facilities or operations of the Business Entities that are in their possession or reasonable control.

 

4.20          Insurance. Section 4.20 of the Amber Disclosure Schedules sets forth a true, correct and complete list of all material insurance policies owned or held by a Business Entity or that otherwise provides for coverage of the Business or any of the Contributed Business Assets (the “Business Insurance Policies”). All such policies are in full force and effect, all premiums due and payable thereon have been paid in full in all material respects as of the date hereof, and copies of all such policies have been made available to ARYA. As of the date hereof, no claim by any Amber Entity or its Affiliates related to the Business or the Contributed Business Assets under a Business Insurance Policy is pending as to which coverage has been denied or disputed, or rights reserved to do so, by the underwriters thereof, except as is not or would not reasonably be expected to be, individually or in the aggregate, material to the Business. None of the Amber Entities or any of their respective Affiliates is in material breach or default under the terms of any such insurance policy (including any such breach or default with respect to the giving of notice of claims) and, to the knowledge of Amber GT Parent, no event has occurred that (with or without notice or the lapse of time or both) would constitute a material breach or material default. As of the date hereof, no written notice of pending material premium increase, cancellation, termination or non-renewal has been received by any Amber Entity or any of its Affiliates with respect to any such policy.

 

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4.21          Affiliate Arrangements. Section 4.21(a) of the Amber Disclosure Schedules sets forth all Contracts between (a) any Business Entity, on the one hand, and (b) (i) any Amber Entity or any of their respective Affiliates (other than, for the avoidance of doubt any other Business Entity or the Company), (ii) any officer, director, employee, partner, member, manager or direct or indirect equityholder of any such Amber Entity or Affiliate or (iii) any family member of the foregoing Persons, on the other hand (each Person identified in sub-clause (ii) and (iii) of this clause (b), a “Amber Related Party”), other than Contracts entered into after the date of this Agreement that are either permitted pursuant to Section 6.1(b) or entered into in accordance with Section 6.1(b). Except as set forth on Section 4.21(b) of the Amber Disclosure Schedules, no Amber Related Party: (A) owns any material interest in any material asset or property used in the Business; (B) possesses, directly or indirectly, any material financial interest in, or is a director or executive officer of, any Person that is a Material Supplier, vendor, partner, customer, lessor or other material business relation of the Business, (C) is a supplier, vendor, partner, customer, lessor, or other material business relation of the Business or (D) owes any material amount to, or is owed any material amount by, any Business Entity or the Business (other than accrued compensation, employee benefits, employee or director expense reimbursement, in each case, in the ordinary course of business or pursuant to any transaction entered into after the date of this Agreement that is either permitted pursuant to Section 6.1(b) or entered into in accordance with Section 6.1(b)). All Contracts, arrangements, understandings, interests and other matters that are required to be disclosed pursuant to this Section 4.21 (including, for the avoidance of doubt, pursuant to the second sentence of this Section 4.21) are referred to herein as “Amber Related Party Transactions.

 

4.22          Certain Business Practices. To the extent applicable or related to the ownership of the Contributed Business Assets or the operation or conduct of the Business, none of the Amber Entities or their Affiliates, nor, to the knowledge of Amber GT Parent, any director, officer, agent or employee of such Persons (in their capacities as such) has, since January 1, 2019, (a) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (b) made any unlawful payment to foreign or domestic government officials or employees, to foreign or domestic political parties or campaigns or violated any provision of the Foreign Corrupt Practices Act of 1977 (“FCPA”), UK Bribery Act, or similar applicable Law prohibiting bribery or corruption (together with the FCPA, “Anti-Corruption Laws”) or (c) made any other unlawful payment. To the extent applicable or related to the ownership of the Contributed Business Assets or the operation or conduct of the Business, none of the Amber Entities or any of their Affiliates, nor, to the knowledge of Amber GT Parent, any director, officer, agent or employee of the Amber Entities or their Affiliates (nor any Person acting on behalf of any of the foregoing, but solely in his or her capacity as a director, officer, employee or agent of the Amber Entities or their Affiliates) has, since January 1, 2019, directly or indirectly, given or agreed to give any gift or similar benefit to any customer, supplier, governmental employee or other Person who is or may be in a position to help or hinder the Amber Entities or their Affiliates in connection with any actual or proposed transaction related to or arising out of the Business, in each case in violation of any Anti-Corruption Law in any material respect. No material Action involving the Amber Entities or their Affiliates with respect to any Anti-Corruption Law is pending or, to the knowledge of Amber GT Parent, threatened with respect to the ownership, operation or conduct of the Business.

 

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4.23          Trade Controls. To the extent applicable or related to their ownership of the Contributed Business Assets or the operation or conduct of the Business, none of the Amber Entities or their Affiliates, nor to the knowledge of Amber GT Parent, any director, officer, agent or employee of the Amber Entities or their Affiliates (in their capacities as such) has, since January 1, 2019, (i) been a Sanctioned Person, (ii) been organized, resident or located in a Sanctioned Country, (iii) engaged in any dealings or transactions with any Sanctioned Person or in any Sanctioned Country, or (iv) otherwise been in violation of Trade Controls in any material respect. Neither the Amber Entities nor their Affiliates have received, to the extent applicable or related to their ownership of the Contributed Business Assets or the operation or conduct of the Business, from any Authority or any other Person any notice, inquiry, or internal or external allegation; made any voluntary or involuntary disclosure to an Authority; or conducted any internal investigation or audit, in each case concerning any actual or potential material violation or wrongdoing related to Trade Controls.

 

4.24          Material Suppliers. Section 4.24 of the Amber Disclosure Schedules sets forth a true, correct and complete list of the top ten (10) largest suppliers of products or services related to or arising out of the Business to any of the Amber Entities or any of their Affiliates, based on amounts paid or payable with respect to (x) the twelve (12)-month period ending December 31, 2020, and (y) for the six (6)-month period ending June 30, 2021 (each, a “Material Supplier”). None of the Amber Entities or their Affiliates (i) is, or has been since December 31, 2019, engaged in any material dispute with any Material Supplier, or (ii) has received any written notice from any Material Supplier indicating that it intends to cancel, terminate, materially reduce or otherwise adversely modify in any material respect its relationship in respect to the Business or the Business Entities.

 

4.25          Regulatory Compliance.

 

(a)            All Regulatory Permits and applications for Regulatory Permits submitted by or in respect of the Business have been duly and timely submitted and are true, correct and complete in all respects, and all materials made available to ARYA with respect to the Regulatory Permits, including the plans, status, and results of development, investigation, manufacture, analysis, and other activities intended to support any Regulatory Permit are true, correct and complete in all respects, except, in each case, as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, an Amber Material Adverse Effect.

 

(b)            The Amber Entities and all Affiliates and, to the knowledge of Amber GT Parent, each third party that is a manufacturer, contractor or agent for any Business Product are in compliance in all material respects with all necessary Regulatory Permits (to the extent applicable to their ownership of the Contributed Business Assets or related to the operation or conduct of the Business), and no event, circumstance or state of facts has occurred which (with or without due notice or lapse of time or both) would reasonably be expected to result in the failure to be in compliance in all material respects with the terms of any such Regulatory Permit required by the FDA or any other Authority under the Public Health Laws or any other comparable Laws. To the knowledge of Amber GT Parent, as of the date hereof, neither FDA nor any other Authority is considering limiting, suspending or revoking any Regulatory Permit.

 

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(c)            All Gene Therapy Products are being and have been developed, investigated, manufactured, prepared, packaged, tested, labeled and distributed in compliance in all material respects with the Public Health Laws or any other applicable Law.

 

(d)            There is (and since January 1, 2019, there has been) no material Action or, to the knowledge of Amber GT Parent threatened against the Amber Entities and their Affiliates related to compliance with Public Health Laws, to the extent applicable to their ownership of the Contributed Business Assets or related to the operation or conduct of the Business. None of the Amber Entities or any of their Affiliates has, and since January 1, 2019, has not had, any material Liabilities for failure to comply with any Public Health Laws (to the extent applicable to their ownership of the Contributed Business Assets or related to the operation or conduct of the Business).

 

(e)            Since January 1, 2019, none of the Amber Entities or any of their respective Affiliates or any third party that is a manufacturer, contractor or agent for any Business Product or any component thereof has undergone, or to the knowledge of Amber GT Parent, is currently undergoing, any inspection related to any Business Product or any other Authority investigation under any Public Health Law (to the extent applicable to their ownership of the Contributed Business Assets or related to the operation or conduct of the Business).

 

(f)             Since January 1, 2019, no clinical trial site conducting a clinical trial sponsored by or on behalf of any Amber Entity or any Affiliate thereof has undergone, or is undergoing any inspection related to any Business Product.

 

(g)            Since January 1, 2019, no Business Products have been distributed that were upon their shipment by any Amber Entity adulterated or misbranded in violation of 21 U.S.C. § 331 or any other Authority’s jurisdiction. No Business Products have been seized, withdrawn or recalled, and no Business Products have been detained or subject to a suspension of research, manufacturing or distribution (other than in the ordinary course of business), and to the knowledge of Amber GT Parent, there are no facts or circumstances reasonably likely to cause (i) the seizure, denial, withdrawal, recall, detention, public health notification, safety alert or suspension of manufacturing or other activity relating to any Business Product or (ii) a termination, seizure or suspension of researching, clinical investigation, manufacturing or distributing of any Business Product, in either case, except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, an Amber Material Adverse Effect. As of the date of this Agreement, no proceedings in the United States or any other jurisdiction seeking the withdrawal, recall, revocation, suspension, import detention or seizure of any Business Product are pending or, to the knowledge of Amber GT Parent, threatened.

 

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(h)          No Amber Entity or, to the knowledge of Amber GT Parent, any of its directors, officers, employees, individual independent contractors or other service providers, including clinical trial investigators, coordinators, monitors, Business Products or services, (i) have been excluded, disqualified, or debarred from any federal healthcare program (including Medicare or Medicaid) or any other federal program or any other healthcare program or reimbursement regulation or agreement or (ii) have received notice from the FDA, any other Authority or any health insurance institution with respect to debarment, disqualification (to the extent applicable to their ownership of the Contributed Business Assets or related to the operation or conduct of the Business). None of the Amber Entities or, to the knowledge of Amber GT Parent, any of their officers, directors, employees, agents or contractors has been convicted of any crime or engaged in any conduct for which (A) debarment is mandated or permitted by 21 U.S.C. § 335a or (B) such Person could be excluded from participating in the federal healthcare programs under Section 1128 of the Social Security Act or any similar law (to the extent applicable to their ownership of the Contributed Business Assets or related to the operation or conduct of the Business). To the knowledge of Amber GT Parent, no officer or other employee or agent of any Amber Entity has (x) made any untrue statement of material fact or fraudulent statement to the FDA or any other Authority; (y) failed to disclose a material fact required to be disclosed to the FDA or any other Authority; or (z) committed an act, made a statement or failed to make a statement that would reasonably be expected to provide the basis for the FDA or any other Authority to refuse to grant a Regulatory Permit for any Business Product.

 

Article V
REPRESENTATIONS AND WARRANTIES OF ARYA

 

Subject to (a) Section 11.11, except as set forth in the ARYA Disclosure Schedules, or (b) except as set forth in any ARYA SEC Document (excluding any disclosures in any “risk factors” section that do not constitute statements of fact, disclosures in any forward-looking statements disclaimers and other disclosures that are generally cautionary, predictive or forward-looking in nature), ARYA hereby represents and warrants to the Amber Entities, in each case, as of the date of this Agreement and as of the Closing, as follows:

 

5.1          Existence and Power. ARYA is a corporation, limited liability company, limited partnership or other applicable business entity duly incorporated, organized or formed, as applicable, validly existing in good standing (or the equivalent thereof, if applicable, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) under the Laws of its jurisdiction of incorporation, organization or formation, as applicable. ARYA has all power and authority, corporate and otherwise, and all material Permits and Consents required to own and operate its properties and assets and to carry on its business as presently conducted, except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, an ARYA Material Adverse Effect.

 

5.2          Authority. ARYA has the requisite corporate, limited liability company or other similar power and authority to execute and deliver this Agreement and each Additional Agreement to which it is or will be a party, to perform its covenants, agreements and obligations hereunder and thereunder and to consummate the transaction contemplated hereby and thereby. Subject to the receipt of the ARYA Shareholder Approval, the execution and delivery by ARYA of this Agreement, the execution and delivery by ARYA of the Additional Agreements to which it is, or will be, a party, the performance by ARYA under this Agreement or any Additional Agreements, and the consummation by ARYA of the transactions contemplated hereby or thereby, are within the respective corporate, limited liability company or other similar powers and authority of ARYA and have been duly authorized by all necessary corporate (or similar) action on the part of ARYA. This Agreement constitutes, and, upon their execution and delivery, each of the Additional Agreements to which ARYA, is, or will be, a party, will constitute, a valid and legally binding agreement of ARYA (assuming that this Agreement and the Additional Agreements to which ARYA or any of its Affiliates is or is contemplated to be a party are or will be upon execution thereof, as applicable, duly authorized, executed and delivered by the other Persons party thereto), enforceable against ARYA, in accordance with their respective terms, subject to the Remedies Exception.

 

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5.3          Governmental Authorization. Except as set forth on Section 5.3 of the ARYA Disclosure Schedules, no Consent of any Authority is required on the part of ARYA with respect to ARYA’s execution, delivery or performance of its covenants, agreements or obligations under this Agreement or the Additional Agreements to which it is or will be party or the consummation of the transactions contemplated hereby or thereby, except for (a) compliance with and filings under the HSR Act, (b) the filing with the SEC of (i) the Registration Statement / Proxy Statement and the declaration of the effectiveness thereof by the SEC and (ii) such reports under Section 13(a) or 15(d) of the Exchange Act as may be required in connection with this Agreement, the Additional Agreements or the transactions contemplated hereby or thereby, (c) such filings with and approvals of Nasdaq to permit the ARYA Class A Shares to be issued in connection with the transactions contemplated by this Agreement and the other Additional Agreements to be listed on Nasdaq, (d) such filings and approvals required in connection with the Domestication, (e) the ARYA Shareholder Approval and the ARYA Sponsor Consent or (f) any other consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which, in each of clauses (a) through (f), has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, an ARYA Material Adverse Effect.

 

5.4          Non-Contravention. Except as set forth on Section 5.4 of the ARYA Disclosure Schedules, none of the execution or delivery by ARYA of this Agreement, the execution or delivery by ARYA of any Additional Agreement to which it is or will be a party, the performance by ARYA under this Agreement or any Additional Agreements, as applicable, or the consummation of the transactions contemplated hereby or thereby, as applicable, does or will, directly or indirectly (with or without due notice or lapse of time or both) (a) contravene or conflict with any Governing Documents of ARYA, (b) violate, or constitute a breach under, any Law or Order to which ARYA or any of its properties or assets are subject or bound, (c) result in a violation or breach of, or constitute a default or give rise to any right of termination, Consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of any Contract or Permits to which ARYA is a party or bound, as applicable, or (d) result in the creation or imposition of any Lien (other than Permitted Liens) on any of ARYA’s assets, except, in the case of clauses (b) through (d), as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, an ARYA Material Adverse Effect.

 

5.5          Finders’ Fees. Except as set forth on Section 5.5 of the ARYA Disclosure Schedules, there is no investment banker, broker, finder or other intermediary that has been retained by or on behalf of ARYA or any of its Affiliates who is or may be entitled to any fee, commission or other payment or consideration in connection with the consummation of the transactions contemplated by this Agreement or the Additional Agreements.

 

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5.6          Capitalization.

 

(a)          Section 5.6(a) of the ARYA Disclosure Schedules sets forth a true, correct and complete statement of the number and class or series (as applicable) of the issued and outstanding prior to ARYA Shares prior to the consummation of the Domestication. As of the date hereof, no other shares of capital stock or other Equity Securities of ARYA are issued, reserved for issuance or outstanding. All issued and outstanding ARYA Shares (except to the extent such concepts are not applicable under the applicable Law of ARYA’s jurisdiction of organization, incorporation or formation, as applicable, or other applicable Law) prior to the consummation of the Domestication (i) have been duly authorized, validly issued, fully paid and nonassessable, (ii) were not issued in violation of ARYA’s Governing Documents or in material violation of any other Contract to which ARYA is bound, (iii) were not issued in material violation of any preemptive rights, call option, right of first refusal or first offer, subscription rights, transfer restrictions or similar rights of any Person, and (iv) have been offered, sold and issued in compliance in all material respects with applicable Law, including securities Laws.

 

(b)          Immediately after the Closing, (i) the authorized capital stock of ARYA will consist of 250,000,000 Class A Shares, 70,000,000 Class B Shares and 12,500,000 shares of preferred stock, par value $0.0001, and (ii) all of the issued and outstanding ARYA Shares (A) will be duly authorized, validly issued, fully paid and nonassessable, (B) will have been issued in compliance in all material respects with applicable Law and (C) will not have been issued in breach or violation of any preemptive rights or Contract to which ARYA is a party or bound in any material respect.

 

(c)          Except as contemplated by this Agreement, the Additional Agreements or the transactions contemplated hereby or thereby or as otherwise either permitted pursuant to Section 6.2 or issued, granted or entered into, as applicable, in accordance with Section 6.2, or as set forth on Section 5.6(c) of the ARYA Disclosure Schedules, there are no outstanding (i) subscriptions, calls, options, warrants, rights or other securities convertible into or exchangeable or exercisable for shares of ARYA Shares or the equity interests of ARYA, or any other Contracts to which ARYA is a party or by which ARYA is bound obligating ARYA to issue or sell any shares of capital stock of, other equity interests in, or debt securities of, ARYA and (ii) no equity equivalents, stock appreciation rights, phantom stock ownership interests or similar rights in ARYA. Except as set forth in ARYA’s Governing Documents or as contemplated by this Agreement, the Additional Agreements or the transactions contemplated hereby or thereby or as otherwise either permitted pursuant to Section 6.2 or entered into in accordance with Section 6.2, there are no outstanding contractual obligations of ARYA to repurchase, redeem or otherwise acquire any securities or equity interests of ARYA.

 

5.7          Investment Company Act. ARYA is not an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of an “investment company,” in each case within the meaning of the Investment Company Act. ARYA constitutes an “emerging growth company” within the meaning of the JOBS Act.

 

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5.8          Trust Account.

 

(a)          As of the date hereof, ARYA has at least $149,500,000 in the trust fund established by ARYA for the benefit of its public shareholders in a trust account (the “Trust Account”), maintained by Continental Stock Transfer & Trust Company (the “Trustee”) acting as trustee. The funds held in the Trust are (a) invested in United States “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act, having a maturity of 185 days or less or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act which invest only in direct U.S. government treasury obligations and (b) held in trust by the Trustee pursuant to the Investment Management Trust Agreement. There are no separate agreements, side letters or other agreements or understandings (whether written or unwritten, express or implied) that would cause the description of the Investment Management Trust Agreement in the ARYA SEC Documents to be inaccurate, or that would entitle any Person to any portion of the funds in the Trust Account (other than (i) in respect of Deferred Underwriting Commissions or Taxes, (ii) the holders of Equity Securities of ARYA prior to the Closing Date who shall have elected to redeem their ARYA Class A Shares pursuant to the Governing Documents of ARYA or (iii) if ARYA fails to complete a Business Combination within the allotted time period set forth in the Governing Documents of ARYA and liquidates the Trust Account, subject to the terms of the Trust Agreement, ARYA (in limited amounts to permit ARYA to pay the expenses of the Trust Account’s liquidation, dissolution and winding up of ARYA) and then the holders of Equity Securities of ARYA prior to the Closing Date). Prior to the Closing, none of the funds held in the Trust Account are permitted to be released, except in the circumstances described in the Governing Documents of ARYA and the Investment Management Trust Agreement. As of the date hereof, ARYA has performed all material obligations required to be performed by it, and is not in material breach or default, or delinquent in performance in any material respect or any other respect (claimed or actual) in any material respect, under the Investment Management Trust Agreement, and, to the knowledge of ARYA, no event has occurred which (with due notice or lapse of time or both) would constitute a material default under the Investment Management Trust Agreement. As of the date of this Agreement, there are no Actions pending, or to the knowledge of ARYA, threatened with respect to the Trust Account. Since March 2, 2021, ARYA has not released any money from the Trust Account (other than interest income earned on the funds held in the Trust Account as permitted by the Investment Management Trust Agreement). Upon the consummation of the transactions contemplated hereby (including the distribution of assets from the Trust Account (A) in respect of Deferred Underwriting Commissions or Taxes or (B) to the holders of Equity Securities of ARYA prior to the Closing Date who have elected to redeem their ARYA Class A Shares pursuant to the Governing Documents of ARYA, each in accordance with the terms of and as set forth in the Investment Management Trust Agreement), ARYA shall have no further obligation under either the Investment Management Trust Agreement or the Governing Documents of ARYA to liquidate or distribute any assets held in the Trust Account, and the Investment Management Trust Agreement shall terminate in accordance with its terms.

 

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5.9          ARYA SEC Documents and Financial Statements; Internal Controls.

 

(a)          ARYA has filed on a timely basis all forms, reports, schedules, statements and other documents, including any exhibits thereto, required to be filed or furnished by ARYA with the SEC since ARYA’s formation under the Exchange Act or the Securities Act, together with any amendments, restatements or supplements thereto (the “ARYA SEC Documents”). The ARYA SEC Documents have been prepared in all material respects in accordance with the applicable requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act, as the case may be, and the rules and regulations thereunder. The ARYA SEC Documents did not, at the time they were filed with the SEC (except to the extent that information contained in any ARYA SEC Document has been or is revised or superseded by a later filed ARYA SEC Document, then on the date of such filing), contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.

 

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

 

(c)          Except as is not required in reliance on exemptions from various reporting requirements by virtue of ARYA’s status as an “emerging growth company” within the meaning of the Securities Act, as modified by the JOBS Act, or “smaller reporting company” within the meaning of the Exchange Act, since its IPO, ARYA has (i) established and maintained, a system of “internal controls” over financial reporting (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) designed to provide reasonable assurance regarding the reliability in all material respects of its financial reporting and the preparation of its financial statements for external purposes in accordance with GAAP and (ii) established and maintained disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) designed to ensure that material information relating to ARYA is made known to the principal executive officer and principal financial officer by others within ARYA. ARYA maintains and, for all periods covered by ARYA Financial Statements, has maintained Books and Records in the ordinary course of business that are true, correct and complete and reflect the revenues, expenses, assets and liabilities of ARYA in all material respects.

 

(d)          ARYA has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act. There are no outstanding loans or other extensions of credit made by ARYA to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of ARYA.

 

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(e)          ARYA is, and since the IPO through the date of this Agreement has been, in compliance in all material respects with all applicable listing and corporate governance rules and regulations of Nasdaq. The ARYA Class A Shares outstanding as of the date hereof are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq. As of the date of this Agreement, there is no Action pending or, to the knowledge of ARYA, threatened against ARYA by Nasdaq or the SEC, respectively, with respect to any intention to deregister ARYA Class A Shares or prohibit or terminate the listing of the ARYA Class A Shares on Nasdaq. None of ARYA nor any of its Affiliates has, as of the date hereof, taken any action that is designed to terminate the registration of ARYA Class A Shares under the Exchange Act.

 

(f)          Since its incorporation and through the date of this Agreement, ARYA has not received any written report, complaint, allegation, assertion or claim that there is (i) a “significant deficiency” in the internal controls over financial reporting of ARYA, (ii) a “material weakness” in the internal controls over financial reporting of ARYA or (iii) any fraud that involves management or other employees of ARYA who have a significant role in the internal controls over financial reporting of ARYA.

 

(g)          Except for the Liabilities (i) set forth in Section 5.9(g) of the ARYA Disclosure Schedules, (ii) incurred in connection with the negotiation, preparation or execution of this Agreement or any Additional Agreement, the performance of its covenants or agreements in this Agreement or any Additional Agreement or the consummation of the transactions contemplated hereby or thereby (including, for the avoidance of doubt, the ARYA Expenses and any Liabilities arising out of, or related to, any Action related to this Agreement, the Additional Agreements or the transactions contemplated hereby or thereby, including any shareholder demand or other shareholder Actions (including derivative claims) arising out of, or related to, any of the foregoing), (iii) set forth or disclosed in the ARYA Financial Statements, (iv) that have arisen since the date of the most recent balance sheet included in the ARYA SEC Documents in the ordinary course of business, (v) that are either permitted pursuant to Section 6.2 or incurred in accordance with Section 6.2 or (vi) that are not, and would not reasonably be expected to be, individually or in the aggregate, material to ARYA, ARYA does not have any Liabilities as of the date hereof.

 

5.10          Litigation. There are (and since its organization, incorporation or formation, as applicable, there has been) no material Actions pending against or, to the knowledge of ARYA, threatened against or involving ARYA that, if adversely decided or resolved, has been or would reasonably be expected to be, individually or in the aggregate, material to ARYA. As of the date of this Agreement, ARYA is not subject to or bound by any material Order. As of the date of this Agreement, there are no material Actions by ARYA pending against any other Person.

 

5.11          Business Activities. Since its incorporation, ARYA has not conducted any business activities other than activities (a) in connection with or incident or related to its incorporation, initial public offering, continuing corporate (or similar) existence or its registration under Section 12(b) of the Exchange Act and continued listing on Nasdaq, (b) directed toward the accomplishment of a business combination, including those incident or related to or incurred in connection with the negotiation, preparation or execution of this Agreement or any Additional Agreement to which ARYA is or will be a party, the performance of its covenants or agreements in this Agreement or any Additional Agreement to which ARYA is or will be a party or the consummation of the transactions contemplated hereby or thereby, or (c) those that are administrative, ministerial or otherwise immaterial in nature.

 

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5.12          Employee Benefit Plans. ARYA has never had any employees, and other than reimbursement of any out-of-pocket expenses incurred by ARYA’s officers and directors in connection with activities on ARYA’s behalf in an aggregate amount not in excess of the amount of cash held by ARYA outside of the Trust Account, ARYA does not have any unsatisfied material liability with respect to any ARYA employee. ARYA does not maintain or have any direct or indirect liability under any employee benefit plan.

 

5.13          Compliance with Laws. ARYA is (and since its organization, incorporation or formation, as applicable, has been) in compliance in all material respects with all applicable Laws. Since its formation, none of ARYA or any of its Affiliates has received any notice of or, to the knowledge of ARYA, been charged with any violation of any Laws, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to ARYA.

 

5.14          Tax Matters.

 

(a)          All material Tax Returns required to be filed by ARYA have been duly and timely filed and all such Tax Returns are true, correct and complete in all material respects. All material amounts of Taxes due and owing by ARYA have been duly and timely paid in full to the appropriate Taxing Authority (or are being contested in good faith by appropriate proceedings, in each case for which adequate reserves have been established with respect to such Taxes in ARYA’s financial statements in accordance with GAAP).

 

(b)          ARYA has (i) complied in all material respects with all applicable Laws relating to the reporting, payment, collection and withholding of Taxes and (ii) duly and timely withheld or collected and paid over to the appropriate Taxing Authority all material Taxes required to be withheld or collected by ARYA.

 

(c)          There is no Action with respect to a material amount of Taxes of ARYA that is currently pending or ongoing, or that has been threatened in writing, and has not been fully resolved.

 

(d)          No statute of limitations in respect of the assessment or collection of any material Taxes of ARYA has been waived or extended, which waiver or extension is in effect.

 

(e)          There is no Lien (other than Liens for Taxes not yet due and payable or that may be paid without penalty or other Permitted Liens) for Taxes upon any of the assets of ARYA.

 

(f)          No claim or Action has been made in writing or commenced by a Taxing Authority in a jurisdiction where ARYA has not paid any Tax or filed Tax Returns asserting that ARYA is or may be subject to Tax or required to file Tax Returns in such jurisdiction. ARYA does not currently have a permanent establishment (as defined in an applicable Tax treaty) or other fixed place of business in a country other than the country in which it is organized. ARYA is not required to pay Taxes on its net income in any country other than its country of organization.

 

(g)          ARYA is not a party to any Tax Sharing Agreement (other than an Ordinary Course Tax Sharing Agreement).

 

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(h)          ARYA is not currently nor has it ever been included in any consolidated, combined or unitary Tax Return other than a Tax Return that includes only ARYA.

 

(i)          ARYA will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting made prior to the Closing or use of an improper method of accounting for a taxable period (or portion thereof) ending on or prior to the Closing Date, (ii) “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law) executed prior to the Closing, (iii) intercompany transactions occurring, or any excess loss account existing, prior to the Closing, in each case as described in Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or non-U.S. Law), (iv) installment sale or open transaction disposition made prior to the Closing or (v) prepaid amount or advanced payment received outside of the ordinary course of business, or deferred revenue accrued, prior to the Closing.

 

(j)          ARYA is registered for the purposes of sales Tax, use Tax, value-added Taxes, or any similar Tax in all jurisdictions where it is required by Law to be so registered, and has complied in all material respects with all Laws relating to such Taxes.

 

(k)          ARYA (i) has not engaged or participated in any “listed transaction” within the meaning of Section 6707A(c)(2) of the Code and applicable Treasury Regulations thereunder, (ii) does not have any Liability for material Taxes of any Person under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law), as a result of being (or having been) a member of an affiliated, consolidated, unitary, or other group for applicable Tax purposes, as a transferee or successor, by Contract or otherwise, or (iii) is not subject to and has not requested any private letter ruling (or similar ruling) from any Taxing Authority that is still in effect (or pending if requested).

 

(l)          In the two (2) years prior to the date of this Agreement, ARYA has not been a “distributing corporation” or a “controlled corporation” (as such terms are used in Section 355 of the Code) in a distribution intended or purported to qualify in whole or in part for Tax-deferred treatment under Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code).

 

(m)          ARYA has not (i) deferred any “applicable employment taxes” (as defined in Section 2302(d)(1) of the CARES Act) that may be deferred pursuant to Section 2302 of the CARES Act; (ii) deferred any payroll Tax obligations (including those imposed by Sections 3101(a) and 3201 of the Code) pursuant to or in connection with the Payroll Tax Executive Order or (iii) sought or obtained, nor does ARYA intend to seek or obtain, a covered loan under paragraph (36) of Section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as added by Section 1102 of the CARES Act. To the extent applicable, ARYA has properly complied in all material respects with all Laws and duly accounted for any available Tax credits under Sections 7001 through 7005 of the FFCRA and Section 2301 of the CARES Act or any similar provision of state or local Law.

 

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5.15          Absence of Certain Changes. During the period beginning June 30, 2021 and ending on the date of this Agreement, (a) no ARYA Material Adverse Effect has occurred and (b) except (i) as expressly contemplated by this Agreement or any Additional Agreement, (ii) in connection with the transactions contemplated hereby and thereby, or (iii) in connection with or related to its formation, initial public offering or its evaluation or analysis of other potential business combinations prior to the date hereof, neither ARYA or any of its Affiliates has taken any action that would require the consent of Amber GT Parent if taken during the period from the date of this Agreement until the Closing pursuant to clauses (i) through (iv), (vii), (viii), (xiii) or (xiv) of Section 6.2(a) or clause (xvi) of Section 6.2(a) (to the extent related to the foregoing).

 

5.16          PIPE Investments. ARYA has made available to Amber GT Parent true, correct and complete copies of the PIPE Subscription Agreements (each as in effect as of the date hereof). As of the date of this Agreement, the PIPE Subscription Agreements (a) are in full force and effect without amendment or modification, (b) are the valid, binding and enforceable obligations of ARYA (or its applicable Affiliate) and, to the knowledge of ARYA, each other party thereto (except, in any case, as may be limited by Remedies Exceptions) and (c) have not been withdrawn, terminated or rescinded in any respect. There are no other Contracts between ARYA and any PIPE Investor relating to any PIPE Subscription Agreement that would reasonably be expected to affect the obligations of the PIPE Investors to contribute to ARYA the applicable portion of the PIPE Investment set forth in the PIPE Subscription Agreements. As of the date hereof, assuming (i) the accuracy of the representations and warranties contained in Article III and Article IV, and with respect to each PIPE Investor (other than the Perceptive PIPE Investor), the representations and warranties of each PIPE Investor in the applicable PIPE Subscription Agreement, in each case, in all material respects, and (ii) the performance or compliance by the Amber Entities of their respective covenants, agreements and obligations to be performed or complied with at or prior to the Closing hereunder and, with respect to each PIPE Investor (other than the Perceptive PIPE Investor), the performance by each PIPE Investor of its covenants, agreements and obligations under the applicable PIPE Subscription Agreement, in each case, in all material respects (x) to the knowledge of ARYA, no facts or circumstances exist that would reasonably be expected to result in any of the conditions set forth in any PIPE Subscription Agreement not being satisfied or the PIPE Investment not being available to ARYA, on the Closing Date, (y) no event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of ARYA under any material term or condition of any PIPE Subscription Agreement and (y) ARYA has no reason to believe that it will be unable to satisfy in all material respects on a timely basis any term or condition to be satisfied by it contained in any PIPE Subscription Agreement. The PIPE Subscription Agreements contain all of the conditions precedent (other than the conditions contained in this Agreement or the Additional Agreements) to the obligations of the PIPE Investors to contribute to ARYA the applicable portion of the PIPE Investment set forth in the PIPE Subscription Agreements on the terms therein.

 

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5.17          Transactions with Affiliates. Section 5.17 of the ARYA Disclosure Schedules sets forth all Contracts between (a) ARYA, on the one hand, and (b) any officer, director, employee, partner, member, manager, direct or indirect equityholder or Affiliate of ARYA or any family member of any such officer, director or employee, on the other hand (each Person identified in this clause (b), a “ARYA Related Party”), other than (i) Contracts with respect to an ARYA Related Party’s employment with, or the provision of services to, ARYA or its Affiliates that were entered into in the ordinary course of business (including with regard to benefit plans, indemnification arrangements and other ordinary course compensation matters), (ii) Contracts with respect to an ARYA Related Party’s status as a holder of ARYA Shares or (iii) Contracts entered into after the date of this Agreement that are either permitted pursuant to Section 6.2 or entered into in accordance with Section 6.2. Except as set forth on Section 5.17 of the ARYA Disclosure Schedules, no ARYA Related Party: (A) owns any material interest in any material asset or property used in the business of ARYA; (B) possesses, directly or indirectly, any material financial interest in, or is a director or executive officer of, any Person which is a material supplier, vendor, partner, customer, lessor or other material business relation of ARYA, (C) is a supplier, vendor, partner, customer, lessor, or other material business relation of ARYA or (D) owes any material amount to, or is owed any material amount by, ARYA (other than accrued compensation, employee benefits, employee or director expense reimbursement, in each case, in the ordinary course of business or pursuant to any transaction entered into after the date of this Agreement that is either permitted pursuant to Section 6.2(a) or entered into in accordance with Section 6.2(a)). All Contracts, arrangements, understandings, interests and other matters that are required to be disclosed pursuant to this Section 5.17 (including, for the avoidance of doubt, pursuant to the second sentence of this Section 5.17) are referred to herein as “ARYA Related Party Transactions.

 

5.18          Information Supplied. None of the information supplied or to be supplied by or on behalf of ARYA or any of its Affiliates expressly for inclusion or incorporation by reference in the Registration Statement / Proxy Statement will, when the Registration Statement / Proxy Statement is declared effective or when the Registration Statement / Proxy Statement is mailed to the ARYA shareholders or at the time of the ARYA Shareholders Meeting, and in the case of any post-effective amendment thereto, at the time of such post-effective amendment, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading; provided, however, that notwithstanding the foregoing provisions of this Section 5.18, no representation or warranty is made by ARYA or any of its Affiliates with respect to information or statements made or incorporated by reference in the Registration Statement / Proxy Statement that were not supplied by or on behalf of ARYA for use therein.

 

5.19          Certain Business Practices. ARYA has not, nor, to the knowledge of ARYA, has any Affiliate, director, officer, agent or employee of ARYA (in their capacities as such), since ARYA’s formation, (a) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (b) made any unlawful payment to foreign or domestic government officials or employees, to foreign or domestic political parties or campaigns or violated any provision of Anti-Corruption Laws or (c) made any other unlawful payment. ARYA has not, nor, to the knowledge of ARYA, has any Affiliate, director, officer, agent or employee of ARYA or its Affiliates (nor any Person acting on behalf of any of the foregoing, but solely in his or her capacity as a director, officer, employee or agent of ARYA or its Affiliates), since ARYA’s formation, directly or indirectly, given or agreed to give any gift or similar benefit to any customer, supplier, governmental employee or other Person in connection with any actual or proposed transaction, in each case in violation of any Anti-Corruption Law in any material respect. No material Action involving ARYA or its Affiliates with respect to any Anti-Corruption Law is pending or, to the knowledge of ARYA, threatened.

 

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5.20          Trade Controls. None of ARYA or its Affiliates, nor any director, officer, agent or employee of ARYA or its Affiliates (in their capacities as such) has, since ARYA’s formation, (a) been a Sanctioned Person, (b) been organized, resident or located in a Sanctioned Country, (c) engaged in any dealings or transactions with any Sanctioned Person or in any Sanctioned Country, or (d) otherwise been in violation of Trade Controls in any material respect. ARYA nor its Affiliates have: (i) received from any Authority or any other Person any notice, inquiry, or internal or external allegation; (ii) made any voluntary or involuntary disclosure to an Authority; or (iii) conducted any internal investigation or audit, in each case concerning any actual or potential material violation or wrongdoing related to Trade Controls.

 

5.21          Investigation; No Other Representation.

 

(a)          ARYA, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that (i) it has conducted its own independent review and analysis of, and, based thereon, has formed an independent judgment concerning, the business, assets, condition, operations and prospects, of the Business and (ii) it has been furnished with or given access to such documents and information about the Business as it and its Representatives have deemed necessary to enable it to make an informed decision with respect to the execution, delivery and performance of this Agreement, the Additional Agreements and the transactions contemplated hereby and thereby.

 

(b)          In entering into this Agreement and the Additional Agreements to which it is or will be a party, ARYA has relied solely on its own investigation and analysis and the representations and warranties expressly set forth in Article III, Article IV and the Additional Agreements to which it is or will be a party and no other representations or warranties of the Amber Entities or any other Person, either express or implied, and ARYA, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that, except for the representations and warranties expressly set forth in Article III, Article IV and the Additional Agreements to which it is or will be a party, none of the Amber Entities or any other Person makes or has made any representation or warranty, either express or implied, in connection with or related to this Agreement, the Additional Agreements or the transactions contemplated hereby or thereby.

 

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5.22          Exclusivity of Representations and Warranties. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO THE AMBER ENTITIES OR ANY OF THEIR REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION (INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS ARTICLE V OR THE ADDITIONAL AGREEMENTS, NEITHER ARYA, NOR ANY OTHER PERSON MAKES, AND ARYA EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE ADDITIONAL AGREEMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, INCLUDING AS TO THE MATERIALS RELATING TO THE BUSINESS AND AFFAIRS OR HOLDINGS OF ARYA THAT HAVE BEEN MADE AVAILABLE TO THE AMBER ENTITIES OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OR IN ANY PRESENTATION OF THE BUSINESS AND AFFAIRS OF ARYA BY OR ON BEHALF OF THE MANAGEMENT OF ARYA OR OTHERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR BY THE ADDITIONAL AGREEMENTS, AND NO STATEMENT CONTAINED IN ANY OF SUCH MATERIALS OR MADE IN ANY SUCH PRESENTATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY HEREUNDER OR OTHERWISE OR DEEMED TO BE RELIED UPON BY ANY OF THE AMBER ENTITIES OR ANY OF THEIR RESPECTIVE REPRESENTATIVES IN EXECUTING, DELIVERING OR PERFORMING THIS AGREEMENT, THE ADDITIONAL AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS ARTICLE V OR THE ADDITIONAL AGREEMENTS, IT IS UNDERSTOOD THAT ANY COST ESTIMATES, PROJECTIONS OR OTHER PREDICTIONS, ANY DATA, ANY FINANCIAL INFORMATION OR ANY MEMORANDA OR OFFERING MATERIALS OR PRESENTATIONS, INCLUDING ANY OFFERING MEMORANDUM OR SIMILAR MATERIALS MADE AVAILABLE BY OR ON BEHALF OF ARYA ARE NOT AND SHALL NOT BE DEEMED TO BE OR TO INCLUDE REPRESENTATIONS OR WARRANTIES OF ARYA, AND, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS ARTICLE V OR THE ADDITIONAL AGREEMENTS, ARYA EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, IN CONNECTION THEREWITH. NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT TO THE CONTRARY, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS ARTICLE V OR THE ADDITIONAL AGREEMENTS NEITHER ARYA NOR ANY OTHER PERSON MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE AMBER ENTITIES REGARDING ANY PROJECTIONS OR THE FUTURE OR PROBABLE PROFITABILITY, SUCCESS, BUSINESS, OPPORTUNITIES, RELATIONSHIPS AND OPERATIONS OF ARYA OR, FOLLOWING THE CLOSING, THE BUSINESS ENTITIES OR THE BUSINESS.

 

Article VI
COVENANTS OF THE PARTIES

 

6.1          Conduct of the Business Entities and the Business.

 

(a)          From and after the Effective Date through the earlier of the Closing or the termination of this Agreement in accordance with its terms, except (x) as expressly contemplated by this Agreement or any Additional Agreement, (y) as required by applicable Law or (z) with the prior written consent of ARYA (not to be unreasonably withheld, conditioned or delayed), each Amber Entity shall, and shall cause its Affiliates to, conduct the Business in the ordinary course consistent with past practice in all material respects and use their commercially reasonable efforts to preserve substantially intact their respective properties, assets, operations and relationships with Authorities, employees, suppliers, and other material business relations, in each case, to the extent primarily related to the Business or otherwise constituting or related to the Contributed Business Assets, the Business Employees or the Business Contractors.

 

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(b)          Without limiting the generality of the foregoing, from and after the Effective Date through the earlier of the Closing or the termination of this Agreement in accordance with its terms, except (w) as set forth on Section 6.1(b) of the Amber Disclosure Schedules, (x) as expressly contemplated by this Agreement or any Additional Agreement, (y) as required by applicable Law or (z) as consented to in writing by ARYA (such consent not to be unreasonably withheld, conditioned or delayed in the case of clauses (i), (v), (vi), (viii), (ix), (xi), (xiii), (xv), (xvi), (xviii), (xix), (xx), (xxiii) or (xxv) (to the extent related to any of the foregoing clauses)), each Amber Entity shall not, and shall cause its Affiliates not to, do the following:

 

(i)          amend, modify, restate or supplement the Governing Documents of any Business Entity (other than, for the avoidance of doubt, as expressly contemplated by this Agreement);

 

(ii)          transfer, issue, sell, grant or otherwise dispose of, or subject to a Lien, (A) any Equity Securities of any Business Entity or (B) any options, warrants, rights of conversion or other rights, agreements, arrangements or commitments obligating any Business Entity to issue, deliver or sell any Equity Securities of any Business Entity;

 

(iii)          declare, set aside, make or pay a dividend on, or make any other distribution or payment in respect of, any Equity Securities of any Business Entity or repurchase or redeem any outstanding Equity Securities of any Business Entity;

 

(iv)          sell, assign, abandon, dispose of, license or transfer, any Contributed Business Assets, or any other assets or properties related to or arising out of the Business (other than Intellectual Property), other than dispositions or transfers of inventory in the ordinary course of business;

 

(v)          except as required by the terms of any existing Employee Benefit Plan as in effect on the date hereof and listed on Section 4.16(a) of the Amber Disclosure Schedules, as set forth on Section 6.1(b)(v) of the Amber Disclosure Schedules or for ordinary course actions consistent with past practice which are applicable to employees of Amber GT Parent and its Affiliates generally and for which Amber GT Parent and its Affiliates (excluding, for the avoidance of doubt, the Company) are solely obligated to pay (and do not disproportionately affect any Business Employees or Business Contractors), (A) materially increase or decrease the amount of any bonus, salary or other compensation or benefits payable or to become payable to any current or former employee, officer, director or other individual service provider of the Business, including any Business Employee or Business Contractor, (B) take any action to accelerate the timing or vesting of any payments or benefits, or the funding (other than ordinary course funding of the Parent 401(k) Plan benefits) of any payments or benefits payable or to become payable to any current or former employee, officer, director or other individual service provider of the Business, including any Business Employee or Business Contractor, (C) grant, or promise to grant, any bonuses, commission, change in control payments, deferred compensation, severance, deal bonus, retention or equity or equity-based rights or other compensatory payments or benefits to any current or former employee, officer, director or other individual service provider of the Business, including any Business Employee or Business Contractor, (D) establish, adopt, enter into, commence participation in, fund, terminate, increase the coverage or benefits available under, or materially amend any Employee Benefit Plan (or any plan or arrangement that would be an Employee Benefit Plan if in effect on the date of this Agreement), or (E) hire or engage any Business Employee or Business Contractor with total annualized compensation in excess of $250,000;

 

(vi)          (A) enter into any CBA related to the terms and conditions of one or more Business Employees’ employment or the Business or (B) recognize or certify any labor union, labor organization, or group of employees as the bargaining representative for any Business Employees;

 

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(vii)          implement or announce any mass layoffs, furloughs, plant closings, or reductions in force affecting any group of Business Employees or Business Contractors;

 

(viii)          (A) fail to maintain the Contributed Real Property in substantially the same condition as of the date of this Agreement, ordinary wear and tear casualty and condemnation excepted, or (B) amend, modify, extend, renew or terminate any Lease or enter into any new lease, sublease, license or other agreement for the use or occupancy of any Contributed Real Property or to which any Business Entity is a party or bound or that would adversely affect the rights of the Company, or the obligations of Amber GT Parent, under any Lease or the Philadelphia Sublease following the Closing;

 

(ix)          (A) obtain, create, assume or incur any loan or other Indebtedness primarily related to the Business or otherwise constituting or related to the Contributed Business Assets, the Business Employees or the Business Contractors or to which any Business Entity or any Affiliates thereof could, directly or indirectly, have any Liabilities following the Closing, (B) forgive, cancel or compromise any material debt or claim, or waive or release any right of material value, in each case to the extent primarily related to the Business or that would otherwise constitute or relate to a Contributed Business Asset, the Business Employees or the Business Contractors or (C) grant any indemnity, bond or other guarantee for the benefit of any Person by any Business Entity, otherwise primarily related to the Business or otherwise constituting or relating to the Contributed Business Assets, the Business Employees or the Business Contractors, or to which any Business Entity or any Affiliates thereof could, directly or indirectly, have any Liabilities, in each case of sub clauses (A)-(C), other than in the ordinary course of business in an aggregate amount not to exceed $1,000,000;

 

(x)          (A) merge, consolidate, combine or amalgamate any Business Entity with any Person or otherwise have any Business Entity acquired or purchased acquired by any other Person (whether by merger, consolidating with, purchase of Equity Securities or assets or otherwise) or (B) have any Business Entity purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof;

 

(xi)          (A) make any loans, advances or capital contributions to, or guarantees for the benefit of, or any investments in, any Person by a Business Entity or (B) otherwise make any loans, advances, or guarantees for the benefit of, any Business Employee or Business Contractor, other than the reimbursement of expenses of Business Employees or Business Contractors in the ordinary course of business consistent with past practice, in each case of sub clauses (A) and (B), other than in the ordinary course of business in an aggregate amount not to exceed $1,000,000;

 

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(xii)          with respect to any Business Entity or to the extent otherwise primarily related to the Business, the Contributed Business Assets, the Business Employees, the Business Contractors or Assumed Business Liabilities, (A) make, change, or revoke any material Tax election, (B) enter into any settlement or compromise with any Taxing Authority relating to any material Tax matter, (C) abandon or fail to conduct any material Tax Action in respect of a material amount of Taxes or a material Tax Return, (D) file any amended Tax Return in respect of a material amount of Taxes, (E) consent to any extension or waiver of the statutory period of limitations applicable to a material amount of Taxes or material Tax Return, (F) enter into any Tax Sharing Agreement, (G) adopt or change a method of Tax accounting with respect to material Taxes of any Business Entity or to the extent otherwise related to the Business, or (H) change an accounting period with respect to a material amount of Taxes of any Business Entity or to the extent otherwise related to the Business;

 

(xiii)          settle or compromise, or enter into any settlement, conciliation or other similar Contract with respect to, any Action, or enter into any consent decree or settlement agreement with any Authority, in each case, to the extent primarily related to the Business, or otherwise constituting or related to any Contributed Business Asset, Business Employee or Business Contractor, or to which any Business Entity is subject or would be party or bound, as applicable, in each case, other than settlements or compromises of any Action that (A) would involve the payment of less than $1,000,000, in the aggregate, (B) that does not impose, or by its terms will not impose at any point in the future, any material, non-monetary obligations on the Business or any Business Entity (or ARYA or any of its Affiliates following the Closing) and (C) that is otherwise paid in full by the Amber Entities prior to the Closing or would constitute Excluded Liabilities;

 

(xiv)          assign, sell, transfer, abandon, let lapse, license (except non-exclusive licenses granted in the ordinary course of business) or otherwise dispose of, any Contributed Business IP, other than in the ordinary course of business;

 

(xv)          not commit or authorize any commitment to make any capital expenditures primarily related to the Business or otherwise constituting or related to the Contributed Business Assets, the Business Employees or the Business Contractors in excess of $1,000,000 individually or $2,000,000 in the aggregate (except as set forth in the capital expenditure budget of the Business provided to ARYA as of the date hereof);

 

(xvi)          disclose any material Trade Secrets primarily used or held for use in the Business (other than pursuant to a written confidentiality agreement or other confidentiality obligations entered into in the ordinary course of business with reasonable protections of, and preserving all rights of the Business in or to, such Trade Secrets);

 

(xvii)          make any change in any Business Entity’s accounting methodology, practice or policy other than changes required by GAAP or applicable Law;

 

(xviii)          waive or release any noncompetition, non-solicitation, non-disclosure, non-interference, non-disparagement, or other restrictive covenant obligation of any Business Employee, Business Contractor or former employee or independent contractor of the Business;

 

(xix)          except as contemplated in Section 7.1(b), (A) transfer the employment of any (x) employee of the Amber Entities (other than the Business Entities) who is not a Business Employee to a Business Entity or modify such individual’s duties and responsibilities such that they would become a Business Employee, or (y) Business Employee out of any Business Entity or change the job duties or responsibilities of any Business Employee such that the individual no longer satisfies the definition of a Business Employee, other than such actions that are taken in order to fill a vacancy for any position with total annualized compensation not greater than $300,000, or (B) terminate the employment or engagement of (other than for cause), furlough or temporarily layoff any Business Employee or Business Contractor;

 

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(xx)            (A) amend, modify or terminate any Material Business Contract (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Business Contract pursuant to its terms), (B) waive any material benefit or right under any Material Business Contract, (C) enter into any Contract that would constitute a Material Business Contract or (D) consummate any other transaction or make (or agree to make) any other payments that, if reflected in a Contract and existing on the date hereof, would be required to be disclosed on Section 4.21 of the Amber Disclosure Schedules;

 

(xxi)            cause the Business Entities to engage in any business or activities, or incur any Liabilities, that would be required to be disclosed on Section 4.5 of the Amber Disclosure Schedules if engaged in or incurred prior to the date hereof;

 

(xxii)            authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction (other than, for the avoidance of doubt, the transactions expressly contemplated by this Agreement) involving any Business Entity;

 

(xxiii)           enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement or any Additional Agreement;

 

(xxiv)           make or enter into any Contract providing for any Change of Control Payment, other than Change of Control Payments that do not exceed $25,000 individually or $100,000 in the aggregate with all other such Change of Control Payments under this Section 6.1(b)(xxiv); or

 

(xxv)            enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 6.1(b).

 

Notwithstanding anything in this Section 6.1(b) to the contrary, nothing set forth in this Agreement shall give ARYA, directly or indirectly, the right to control or direct the operations of the Business or the Business Entities prior to the Closing.

 

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6.2            Conduct of the Business of ARYA.

 

(a)           From and after the Effective Date through the earlier of the Closing or the termination of this Agreement in accordance with its terms, ARYA shall not, and shall cause its Subsidiaries not to, as applicable, except as expressly contemplated by this Agreement or any Additional Agreement (including, for the avoidance of doubt, in connection with the Domestication or the PIPE Investment), as required by applicable Law, as set forth on Section 6.2(a) of the ARYA Disclosure Schedules or as consented to in writing by Amber GT Parent (such consent not to be unreasonably withheld, conditioned or delayed), do any of the following:

 

(i)             create or form any Subsidiary;

 

(ii)            adopt any amendments, supplements, restatements or modifications to the Investment Management Trust Agreement or the Governing Documents of ARYA;

 

(iii)           acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or enter into any strategic joint ventures, partnerships or alliances with any other person;

 

(iv)           declare, set aside, make or pay a dividend on, or make any other distribution or payment in respect of, its Equity Securities, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding of its Equity Securities;

 

(v)            split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;

 

(vi)           (A) make, change, or revoke any material Tax election, (B) enter into any settlement or compromise with any Taxing Authority relating to any material Tax matter, (C) abandon or fail to conduct any material Tax Action in respect of a material amount of Taxes or a material Tax Return, (D) file any amended Tax Return in respect of a material amount of Taxes, (E) consent to any extension or waiver of the statutory period of limitations applicable to a material amount of Taxes or material Tax Return, (F) enter into any Tax Sharing Agreement, (G) adopt or change a method of Tax accounting with respect to material Taxes, or (H) change an accounting period with respect to a material amount of Taxes;

 

(vii)          incur, create or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities (or warrants or other rights to acquire any debt securities), in each case of, other than in the ordinary course of business in an aggregate amount not to exceed $1,000,000;

 

(viii)         make any loans or advances to, or capital contributions in, any other Person, other than to, or in, ARYA or any of its Subsidiaries;

 

(ix)            issue any Equity Securities or grant any additional options, warrants or stock appreciation rights with respect to its Equity Securities;

 

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(x)            (A) amend, modify or renew any Contract that constitutes an ARYA Related Party Transaction, other than the entry into any Contract with an ARYA Related Party with respect to the incurrence of Indebtedness permitted by Section 6.2(a)(vii) or (B) enter into any Contract that would constitute an ARYA Related Party Transaction;

 

(xi)            engage in any activities or business, or incur any Liabilities, other than with respect to any activities or businesses that are or any Liabilities, directly or indirectly, arising out of or related to any activities or businesses that are (A) either permitted under this Section 6.2 (including, for the avoidance of doubt, any activities or businesses contemplated by, incurred in connection with or that are otherwise incidental or attendant to this Agreement or any Additional Agreement, the performance of any covenants or agreements hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby) or in accordance with this Section 6.2, (B) in connection with or incident or related to its incorporation, continuing corporate (or similar) existence or it being (or continuing to be) a U.S. public company listed on Nasdaq, or (C) administrative, ministerial or otherwise immaterial in nature;

 

(xii)           make any change in accounting methodology, practice or policy other than changes required by GAAP or applicable Law;

 

(xiii)          waive, release, assign, settle or compromise any Action pending or threatened against ARYA or any of their respective directors or officers that would materially and adversely affect ARYA after the Closing Date;

 

(xiv)          authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction (other than, for the avoidance of doubt, the transactions expressly contemplated by this Agreement and the Additional Agreements);

 

(xv)          enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement; or

 

(xvi)         enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 6.2(a).

 

(b)            Notwithstanding anything in this Section 6.2 to the contrary, (i) nothing set forth in this Agreement shall give the Amber Entities, directly or indirectly, the right to control or direct the operations of ARYA and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, ARYA from using the funds held by ARYA outside the Trust Account from otherwise distributing or paying over any funds held by ARYA outside the Trust Account to the ARYA Sponsor or any of its Affiliates, in each case, prior to the Closing.

 

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6.3            Efforts to Consummate.

 

(a)            Subject to the terms and conditions herein provided, each of the Parties shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the transactions contemplated by this Agreement, including (i) the satisfaction, but not waiver, of the closing conditions set forth in Article VIII and, in the case of any Additional Agreement to which such Party is contemplated to be a party after the date of this Agreement, to execute and delivery such Additional Agreement when required pursuant to this Agreement, and (ii) using reasonable best efforts to obtain the PIPE Investment on the terms and subject to the conditions set forth in the PIPE Subscription Agreements. Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any Consents of any Authority or other Persons necessary, proper or advisable to consummate the transactions contemplated by this Agreement or the Additional Agreements; provided, however, that in the case of any such Consents of any Person (other than an Authority), ARYA and its Affiliates (including, for the avoidance of doubt, from and after the Closing, the Business Entities) shall not be required to make any payments to secure any such Consent and shall not be required to amend, modify or supplement any Contract to which such Consent may relate, and Amber GT Parent, Amber GT and their respective Affiliates (including, prior to the Closing, the Business Entities) shall not take any of the foregoing actions without ARYA’s prior written consent. Amber GT Parent shall bear the costs incurred in connection with obtaining, filing or delivering such Consents; provided, however, that each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any such Consents. Each Party shall (A) make any appropriate filings pursuant to the HSR Act with respect to the transactions contemplated by this Agreement promptly (and in any event within ten (10) Business Days) following the date of this Agreement, and (B) respond as promptly as reasonably practicable to any requests by any Authority for additional information and documentary material that may be requested pursuant to the HSR Act. ARYA shall promptly inform Amber GT Parent of any communication between ARYA, on the one hand, and any Authority, on the other hand, and Amber GT Parent shall promptly inform ARYA of any communication between any Amber Entity or any Affiliate thereof, on the one hand, and any Authority, on the other hand, in either case, regarding any of the transactions contemplated by this Agreement or any Additional Agreement; provided that, for the avoidance of doubt, the foregoing shall not apply with respect to communications with any Taxing Authority following the Closing Date. Without limiting the foregoing, (x) to the extent available at the time of filing thereof, the Parties agree to request early termination of the applicable waiting period under the HSR Act, and (y) each Party and their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Authority not to consummate the transactions contemplated hereby or by the Additional Agreements, except with the prior written consent of ARYA and Amber GT Parent. Nothing in this Section 6.3 obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities, assets or facilities of any Business Entity or any entity, facility or asset of such Party or any of its Affiliates, (ii) terminate, amend or assign existing relationships and contractual rights or obligations, (iii) amend, assign or terminate existing licenses or other agreements, or (iv) enter into new licenses or other agreements. No Party shall agree to any of the measures set forth in the immediately preceding sentence with respect to such Party or with respect to any other Party or any of its Affiliates, except with ARYA’s and Amber GT Parent’s prior written consent.

 

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(b)            From and after the Effective Date through the earlier of the Closing or the termination of this Agreement in accordance with its terms, ARYA, on the one hand, and the Amber Entities, on the other hand, shall give counsel for Amber GT Parent (in the case of ARYA) or ARYA (in the case of any Amber Entity), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Authority relating to the transactions contemplated by this Agreement or the Additional Agreements. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone with any Authority in connection with the transactions contemplated by this Agreement unless it consults with, in the case of ARYA, Amber GT Parent, or, in the case of any Amber Entity, ARYA in advance and, to the extent not prohibited by such Authority, gives, in the case of ARYA, Amber GT Parent, or, in the case of any Amber Entity, ARYA, the opportunity to attend and participate in such meeting or discussion.

 

(c)            Notwithstanding anything in this Agreement to the contrary, in the event that this Section 6.3 conflicts with any other covenant or agreement in this Article VI that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict.

 

6.4            Exclusive Dealing.

 

(a)            From and after the Effective Date through the earlier of the Closing or the termination of this Agreement in accordance with its terms, each Amber Entity shall not, and shall cause its Representatives not to, directly or indirectly: (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Business Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or that could reasonably be expected to lead to, a Business Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a Business Acquisition Proposal; (iv) make any filings with the SEC in connection with a public offering of any Equity Securities of any Business Entity (or any Affiliate or successor of any Business Entity) or any other Person for the purpose of a public offering with respect to the Business; or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing. Each Amber Entity agrees to (A) notify ARYA promptly upon receipt of any Business Acquisition Proposal by any Person, and to describe the material terms and conditions of any such Business Acquisition Proposal in reasonable detail (including the identity of the Persons making such Business Acquisition Proposal) and (B) keep ARYA reasonably informed on a current basis of any modifications to such offer or information.

 

(b)            From and after the Effective Date through the earlier of the Closing or the termination of this Agreement in accordance with its terms, ARYA shall not, and shall cause its Representatives not to, directly or indirectly: (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to an ARYA Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or that could reasonably be expected to lead to, an ARYA Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding an ARYA Acquisition Proposal; or (iv) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing. ARYA agrees to (A) notify Amber GT Parent promptly upon receipt of any ARYA Acquisition Proposal by ARYA, and to describe the material terms and conditions of any such ARYA Acquisition Proposal in reasonable detail (including the identity of any person or entity making such ARYA Acquisition Proposal) and (B) keep Amber GT Parent reasonably informed on a current basis of any modifications to such offer or information.

 

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(c)            For the avoidance of doubt, it is understood and agreed that the covenants and agreements set forth in this Section 6.4 shall not prohibit the Amber Entities, ARYA or any of their respective Representatives from taking any actions in the ordinary course that are not otherwise in violation of this Section 6.4 (such as answering phone calls) or informing any Person inquiring about a possible Business Acquisition Proposal or ARYA Acquisition Proposal, as applicable, of the existence of the covenants and agreements set forth in this Section 6.4.

 

6.5            Confidentiality; Access to Information.

 

(a)            The Parties hereby acknowledge and agree that the information being provided in connection with this Agreement and the consummation of the transactions contemplated hereby is subject to the terms of the Confidentiality Agreement, the terms of which are incorporated herein by reference. Notwithstanding the foregoing or anything to the contrary in this Agreement, in the event that this Section 6.5(a) or the Confidentiality Agreement conflicts with any other covenant or agreement set forth in this Agreement or any Additional Agreement that contemplates the disclosure, use or provision of information or otherwise, then such other covenant or agreement set forth in this Agreement or such Additional Agreement, as applicable, shall govern and control to the extent of such conflict. The Parties hereby acknowledge and agree that, notwithstanding anything to the contrary therein, the Confidentiality Agreement shall be automatically terminated effective as of the Closing without any further action by any Party or any other Person.

 

(b)            From and after the Effective Date through the earlier of the Closing or the termination of this Agreement in accordance with its terms, upon reasonable advance written notice, the Amber Entities shall provide, or cause to be provided, to ARYA and its Representatives during normal business hours reasonable access to the books, records, properties and employees (including, for the avoidance of doubt, the Business Employees), in each case, to the extent Related to the Business (in a manner so as to not interfere with the normal business operations of the Amber Entities); provided that, notwithstanding any provision of this Agreement to the contrary, Amber GT Parent shall not be required to provide ARYA or its Representatives with access to or copies of any income Tax Returns or books and records (including workpapers) related thereto except to the extent such income Tax Returns or books and records relate solely to the Business Entities or the Business. Notwithstanding the foregoing, none of the Amber Entities shall be required to provide to ARYA or any of its Representatives any information (i) if and to the extent doing so would (A) violate any Law to which any Amber Entity is subject, (B) violate any legally-binding obligation of any Amber Entity with respect to confidentiality, non-disclosure or privacy (taking into account, for the avoidance of doubt, the Confidentiality Agreement) or (C) based on the advice of outside legal counsel, jeopardize protections afforded to any Amber Entity under the attorney-client privilege or the attorney work product doctrine (provided that, in case of each of clauses (A) through (C), each Amber Entity shall, and shall cause its Affiliates to, use commercially reasonable efforts to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such privilege, doctrine, Contract, obligation or Law and (y) provide such information in a manner without violating such privilege, doctrine, Contract, obligation or Law), or (ii) if any Amber Entity or any of its Representatives, on the one hand, and ARYA or any of its Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto; provided that Amber GT Parent shall, in the case of clause (i) or (ii), provide prompt written notice of the withholding of access or information on any such basis unless such written notice is prohibited by applicable Law.

 

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(c)            From and after the Effective Date through the earlier of the Closing or the termination of this Agreement in accordance with its terms, upon reasonable advance written notice, ARYA shall provide, or cause to be provided, to Amber GT Parent and its Representatives during normal business hours reasonable access to the books, records, properties and employees of ARYA, in each case, to the extent related to the transactions contemplated by this Agreement (in a manner so as to not interfere with the normal business operations of ARYA or any of its Affiliates); provided that, notwithstanding any provision of this Agreement to the contrary, ARYA shall not be required to provide Amber GT Parent or its Representatives with access to or copies of any income Tax Returns or book and records (including workpapers) related thereto. Notwithstanding the foregoing, ARYA shall not be required to provide, or cause to be provided to, Amber GT Parent or any of its Representatives any information (i) if and to the extent doing so would (A) violate any Law to which ARYA is subject, (B) violate any legally binding obligation of ARYA with respect to confidentiality, non-disclosure or privacy (taking into account, for the avoidance of doubt, the Confidentiality Agreement) or (C) based on outside legal counsel, jeopardize protections afforded to ARYA under the attorney-client privilege or the attorney work product doctrine (provided that, in case of each of clauses (A) through (C), ARYA shall use commercially reasonable efforts to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such privilege, doctrine, Contract, obligation or Law and (y) provide such information in a manner without violating such privilege, doctrine, Contract, obligation or Law), or (ii) if ARYA, the ARYA Sponsor or any of their respective Representatives, on the one hand, and any Amber Entity or any of their respective Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto; provided that ARYA shall, in the case of clause (i) or (ii), provide prompt written notice of the withholding of access or information on any such basis unless such written notice is prohibited by applicable Law.

 

(d)            For a period of six (6) years after the Closing, upon reasonable advance notice, ARYA shall provide, or cause to be provided, to Amber GT Parent and its Representatives, at Amber GT Parent’s expense, during normal business hours reasonable access to the Contributed Books and Records and the Contributed Business Employee Records in its possession or control as of such time, in each case, to the extent related to the operation of the Business prior to the Closing and necessary in connection with any Action, preparation of financial statements or SEC, stock exchange or bank regulatory reporting obligations. Any such access shall be in a manner so as to not interfere with the normal business operations of ARYA or any of its Affiliates. Notwithstanding the foregoing, ARYA shall not be required to provide, or cause to be provided to, Amber GT Parent or any of its Representatives any information (i) if and to the extent doing so would (A) violate any Law to which ARYA is subject, (B) violate any legally-binding obligation of ARYA with respect to confidentiality, non-disclosure or privacy (taking into account, for the avoidance of doubt, the Confidentiality Agreement) or (C) based on the advice of outside counsel, jeopardize protections afforded to ARYA under the attorney-client privilege or the attorney work product doctrine (provided that, in case of each of clauses (A) through (C), ARYA shall use commercially reasonable efforts to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such privilege, doctrine, Contract, obligation or Law and (y) provide such information in a manner without violating such privilege, doctrine, Contract, obligation or Law), or (ii) if ARYA, the ARYA Sponsor or any of their respective Representatives, on the one hand, and any Amber Entity or any of its Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto; provided that ARYA shall, in the case of clause (i) or (ii), provide prompt written notice of the withholding of access or information on any such basis unless such written notice is prohibited by applicable Law. This Section 6.5(d) shall not apply with respect to Taxes, which shall be governed by Section 6.12(a).

 

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(e)            From and after the Closing, Amber GT Parent shall, and shall cause its Representatives to, provide ARYA and its Representatives with copies of or access to (as determined in the sole discretion of ARYA) the portion of any Books and Records, in each case, to the extent relating to, held for use with or used in connection with the Business but are not Contributed Books and Records and owned by, in possession of or controlled by Amber GT Parent or any of its Affiliates as of such time (such Books and Records, collectively, the “Commingled Books and Records”); provided that (i) Amber GT Parent shall not be required to provide copies of or access to any Commingled Books and Records to the extent prohibited by applicable Law (provided that, Amber GT Parent shall, and shall cause its Representatives to, use commercially reasonable efforts to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such Law and (y) provide such access or information in a manner without violating such Law), and (ii) for the avoidance of doubt, Amber GT Parent and any of its Representatives may redact or remove any information in any Commingled Books and Records prior to providing copies or access to ARYA and its Representatives under this Section 6.5(e) to the extent not relating to, held for use with or used in connection with the Business. This Section 6.5(e) shall not apply with respect to Taxes, which shall be governed by Section 6.12(a).

 

(f)            From and after the Closing, Amber GT Parent shall, and shall cause its Affiliates to, provide ARYA and its Representatives with copies of or access to (as determined in the sole discretion of ARYA) the portion of employee or personnel files, in each case, to the extent relating to a Business Employee but are not Contributed Business Employee Records and owned by, or in possession of or controlled by Amber GT Parent or any of its Affiliates as of such time (such employee or personnel files, collectively, the “Commingled Employee Records”); provided that (i) Amber GT Parent shall not be required to provide copies of or access to any Commingled Employee Records to the extent prohibited by applicable Law (provided that Amber GT Parent shall, and shall cause its Representatives to, use commercially reasonable efforts to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such Law or Order and (y) provide such access or information in a manner without violating such Law or Order), and (ii) for the avoidance of doubt, Amber GT Parent and any of its Affiliates may redact or remove any information in any Commingled Employee Records prior to providing copies or access to under this Section 6.5(f) to the extent not related to or arising out of the Business or any Business Employee.

 

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(g)            For a period of time equal to the shortest of (i) six (6) years from and after the Closing Date, (ii) Amber GT Parent’s standard record retention policy period or (iii) such period time as may be required by applicable Law, Amber GT Parent shall, and shall cause its Affiliates to, hold all Commingled Books and Records and Commingled Employee Records existing on the Closing Date and not to destroy or dispose of any thereof, and thereafter, if it desires to destroy or dispose of such books and records, to offer first in writing at least thirty (30) days prior to such destruction or disposition to surrender them to ARYA; provided that, for the avoidance of doubt, Amber GT Parent and any of its Affiliates may redact or remove any information in any Commingled Books and Records or the Commingled Employee Records prior to surrendering them to the Company under this Section 6.5(g) to the extent not relating to, held for use with or used in connection with the Business or related to or arising out of any Business Employee. This Section 6.5(g) shall not apply with respect to Taxes, which shall be governed by Section 6.12(a).

 

(h)            For a period of time equal to the shortest of (i) six (6) years from and after the Closing Date, (ii) ARYA’s standard record retention policy period or (iii) such period of time as may be required by applicable Law, ARYA shall, and shall cause its Affiliates to, hold all Contributed Books and Records delivered to the Company on the Closing Date and not to destroy or dispose of any thereof, and thereafter, if it desires to destroy or dispose of such books and records, to offer first in writing at least thirty (30) days prior to such destruction or disposition to surrender them to Amber GT Parent (at its sole cost) to the extent any such books and records relate to Excluded Assets or Excluded Liabilities; provided that, for the avoidance of doubt, ARYA and any of its Affiliates may redact or remove any information in any Contributed Books and Records prior to surrendering them to the Company under this Section 6.5(h) to the extent not relating to, held for use with or used in connection with the Excluded Assets or Excluded Liabilities. This Section 6.5(h) shall not apply with respect to Taxes, which shall be governed by Section 6.12(a).

 

(i)            For a period of eighteen (18) months from and after the Closing Date (such period of time, the “Confidentiality Period”), Amber GT Parent shall, and shall cause each of its Representatives who have received Business Confidential Information, to, (i) treat and hold as confidential all confidential or proprietary information of, or to the extent related to, the Business and either in existence at or prior to the Closing or delivered to Amber GT Parent or any of its Representatives pursuant to this Agreement or any Additional Agreement after the Closing (the “Business Confidential Information”) and (ii) refrain from using or disclosing any of the Business Confidential Information except as provided or otherwise permitted under this Agreement or any Additional Agreement to which it is a party, or in connection with any dispute or Action arising in connection with any of the foregoing; provided, however, that none of the following shall be deemed to be Business Confidential Information: (A) information that is generally available to or known by the public (other than through disclosure by Amber GT Parent or any of its Representatives in violation of this Section 6.5(i)); (B) information that is acquired by Amber GT Parent or any of its Representatives after the Closing from a source which, to the actual knowledge of such Person, is not prohibited from disclosing such information by a legal, contractual, fiduciary or similar obligation; (C) information that is independently derived, developed or acquired by Amber GT Parent or any of its Representatives following the Closing without reference to or use of information subject to the confidentiality obligations of this Section 6.5(i); or (D) information to the extent related to any Excluded Assets or Excluded Liabilities, which shall, for the avoidance of doubt, be deemed to be Amber Confidential Information. Notwithstanding anything to the contrary in this Section 6.5(i), in the event that Amber GT Parent or any of its Representatives is required or requested to disclose any Business Confidential Information during the Confidentiality Period by Law or to an Authority or otherwise in connection with compliance, Tax or regulatory activity, then any of the foregoing Persons shall notify ARYA as promptly as practicable and permissible of such request or requirement so that ARYA may seek an appropriate protective order or waive compliance with the provisions of this Section 6.5(i). If, in the absence of a protective order or the receipt of a waiver hereunder, such Person, on the advice of its outside legal counsel, is compelled to disclose any Business Confidential Information, such Person may disclose only that portion of such Business Confidential Information to which it is advised by its counsel to disclose and shall use commercially reasonable efforts to cause the recipient thereof to keep such information confidential.

 

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(j)            During the Confidentiality Period, ARYA shall, and shall cause any of its Representatives who have received Amber Confidential Information to, (i) treat and hold as confidential all confidential or proprietary information related to Amber GT Parent or any of its Affiliates delivered to ARYA or its Representatives whether before or after the date hereof (other than, for the avoidance of doubt, the Business Confidential Information) (the “Amber Confidential Information”) and (ii) refrain from using or disclosing any of the Amber Confidential Information except as provided or otherwise permitted under this Agreement or any Additional Agreement, or in connection with any dispute or Action arising in connection with any of the foregoing; provided, however, that none of the following shall be deemed to be Amber Confidential Information: (A) information that is generally available to or known by the public (other than through disclosure by ARYA or its Representatives in violation of this Section 6.5(j)); (B) information that is acquired by ARYA or any of its Representatives after the Closing from a source which, to the actual knowledge of such Persons, is not prohibited from disclosing such information by a legal, contractual, fiduciary or similar obligation; (C) information that is independently derived, developed or acquired by ARYA or any of its Representatives after the Closing without reference to or use of information subject to the confidentiality obligations of this Section 6.5(j); or (D) information to the extent Related to the Business, the Contributed Business Assets or the Assumed Business Liabilities, which shall, for the avoidance of doubt, be deemed to be Business Confidential Information. Notwithstanding anything to the contrary in this Section 6.5(j), in the event that ARYA or any of its Representatives is required or requested to disclose any Amber Confidential Information during the Confidentiality Period by Law or to an Authority or otherwise in connection with compliance, Tax or regulatory activity, then any of the foregoing Persons shall notify Amber GT Parent as promptly as practicable and permissible of such request or requirement so that Amber GT Parent seek an appropriate protective order or waive compliance with the provisions of this Section 6.5(j). If, in the absence of a protective order or the receipt of a waiver hereunder, such Person, on the advice of its outside legal counsel, is compelled to disclose any Amber Confidential Information, such Person may disclose only that portion of such Amber Confidential Information to which it is advised by its counsel to disclose and shall use commercially reasonable efforts to cause the recipient thereof to keep such information confidential. For the avoidance of doubt, the obligations set forth in this Section 6.5(j) are in addition to any continuing obligations under the Confidentiality Agreement.

 

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(k)            Notwithstanding the foregoing or anything to the contrary in this Agreement, in the event that Section 6.5(d) through Section 6.5(j) conflicts with any other covenant or agreement set forth in any Additional Agreement that contemplates the disclosure, use or provision of information or otherwise that is the subject of subsection, then such other covenant or agreement set forth in such Additional Agreement, as applicable, shall govern and control to the extent of such conflict.

 

6.6            Preparation of Registration Statement / Proxy Statement. As promptly as reasonably practicable following the date of this Agreement, ARYA and Amber GT Parent shall prepare and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by either of ARYA or Amber GT Parent, as applicable), and ARYA shall file with the SEC, the Registration Statement / Proxy Statement (it being understood that the Registration Statement / Proxy Statement shall include a proxy statement / prospectus of ARYA which will be included therein and which will be used for the ARYA Shareholders Meeting to adopt and approve the Transaction Proposals and other matters reasonably related to the Transaction Proposals, all in accordance with and as required by ARYA’s Governing Documents, applicable Law, and any applicable rules and regulations of the SEC and Nasdaq). ARYA and each Amber Entity shall use its reasonable best efforts to (a) cause the Registration Statement / Proxy Statement to comply in all material respects with the applicable rules and regulations promulgated by the SEC (including, in the case of the Amber Entities, with respect to the Business, the provision of financial statements of, and any other information with respect to, the Business for all periods, and in the form, required to be included in the Registration Statement / Proxy Statement under securities Laws (after giving effect to any waivers received) or in response to any comments from the SEC); (b) promptly notify, in the case of an Amber Entity, ARYA or, in the case of ARYA, Amber GT Parent, reasonably cooperate with each other with respect to and respond promptly to any comments of the SEC or its staff; (c) promptly prepare and, in the case of ARYA and Amber GT Parent only, mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by either ARYA or Amber GT Parent, as applicable) any amendments or supplements to the Registration Statement / Proxy Statement in order to address comments or requests from the SEC or its staff (which amendments or supplements shall be promptly filed by the Company); (d) have the Registration Statement / Proxy Statement declared effective under the Securities Act as promptly as reasonably practicable after it is filed with the SEC; and (e) keep the Registration Statement / Proxy Statement effective through the Closing in order to permit the consummation of the transactions contemplated by this Agreement. ARYA, on the one hand, and each Amber Entity, on the other hand, shall promptly furnish, or cause to be furnished, to the other all information concerning such Party and its Representatives that may be required or reasonably requested in connection with any action contemplated by this Section 6.6 or for inclusion in any other statement, filing, notice or application made by or on behalf of ARYA to the SEC or Nasdaq in connection with the transactions contemplated by this Agreement or the Additional Agreements. If any Party becomes aware of any information that should be disclosed in an amendment or supplement to the Registration Statement / Proxy Statement, then: (i) such Party shall promptly inform, in the case of ARYA, Amber GT Parent, or, in the case of any Amber Entity, ARYA, thereof; (ii) ARYA and Amber GT Parent shall prepare and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by either ARYA or Amber GT Parent, as applicable), an amendment or supplement to the Registration Statement / Proxy Statement; (iii) ARYA shall as promptly as practicable file such mutually agreed upon amendment or supplement with the SEC; and (iv) the Parties shall reasonably cooperate, if appropriate in the discretion of ARYA, in mailing such amendment or supplement to the shareholders of ARYA. ARYA shall as promptly as reasonably practicable advise Amber GT Parent of the time of effectiveness of the Registration Statement / Proxy Statement, the issuance of any stop order relating thereto or the suspension of the qualification of ARYA Shares for offering or sale in any jurisdiction, and ARYA and the Amber Entities shall each use its reasonable best efforts to have any such stop order or suspension lifted, reversed or otherwise terminated. Each of the Parties shall use reasonable best efforts to ensure that none of the information related to him, her or it or any of his, her or its Representatives, supplied by or on his, her or its behalf for inclusion or incorporation by reference in the Registration Statement / Proxy Statement will, at the time the Registration Statement / Proxy Statement is initially filed with the SEC, at each time at which it is amended, or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.

 

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6.7            ARYA Shareholder Approval. As promptly as reasonably practicable following the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, ARYA shall (a) cause the Registration Statement / Proxy Statement to be mailed to the ARYA shareholders, (b) use reasonable best efforts to solicit proxies from the ARYA shareholders to vote in favor of each of the Transaction Proposals and (c) duly give notice of, and use reasonable best efforts to duly convene and hold, a meeting of its shareholders (the “ARYA Shareholders Meeting”), in each case, in accordance with the Governing Documents of ARYA and applicable Law, for the purposes of obtaining the ARYA Shareholder Approval and, if applicable, any approvals related thereto and providing its applicable shareholders with the opportunity to elect to effect an ARYA Share Redemption. Except as otherwise required by applicable Law: (i) ARYA shall, through the ARYA Board, recommend to its shareholders (the “ARYA Board Recommendation”), (A) the adoption and approval of this Agreement and the transactions contemplated hereby (the “Business Combination Proposal”); (B) the adoption and the approval of the Domestication (the “Domestication Proposal”); (C) the adoption and approval of the issuance of the ARYA Shares in connection with the transactions contemplated by this Agreement as required by Nasdaq listing rules (the “Nasdaq Proposal”); (D) the adoption and approval of the ARYA Post-Closing Certificate of Incorporation (the “Required Governing Document Proposal”); (E) the approval, on a non-binding advisory basis, of certain differences between the Governing Documents of ARYA as in effect as of such time and the proposed ARYA Post-Closing Certificate of Incorporation and the proposed ARYA Post-Closing Bylaws (collectively, the “Other Governing Document Proposals”); (F) the adoption and approval of the Post-Closing Incentive Equity Plan (the “Incentive Equity Plan Proposal”); (G) the adoption and approval of the Post-Closing Employee Stock Purchase Plan; (H) the adoption and approval of each other proposal that either the SEC or Nasdaq (or the respective staff members thereof) indicates is necessary in its comments to the Registration Statement / Proxy Statement or in correspondence related thereto; (I) the adoption and approval of each other proposal reasonably agreed to by ARYA and Amber GT Parent as necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement or the Additional Agreements; and (J) the adoption and approval of a proposal for the adjournment of the ARYA Shareholders Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing (such proposals in (A) through (J), collectively, the “Transaction Proposals”), and (ii) ARYA shall include such recommendation contemplated by clause (i) in the Registration Statement / Proxy Statement. Notwithstanding the foregoing or anything to the contrary herein, ARYA may only adjourn the ARYA Shareholders Meeting (1) to solicit additional proxies for the purpose of obtaining the ARYA Shareholder Approval, (2) for the absence of a quorum, (3) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosures that ARYA (or Amber GT Parent) has reasonably determined in good faith, based on the advice of outside legal counsel, is reasonably likely to be required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the shareholders of ARYA prior to the ARYA Shareholders Meeting or (4) if the holders of ARYA Class A Shares have elected to redeem a number of ARYA Class A Shares as of such time that would reasonably be expected to result in the condition set forth in Section 8.1(g) not being satisfied; provided that, without the consent of Amber GT Parent (such consent not to be unreasonably withheld, conditioned or delayed), in no event shall ARYA adjourn the ARYA Shareholders Meeting for more than fifteen (15) Business Days later than the most recently adjourned meeting or to a date that is beyond the date that is five (5) Business Days prior to the Termination Date. ARYA covenants that none of the ARYA Board, ARYA or any committee of the ARYA Board shall (x) except as otherwise required by applicable Law, change, withdraw, withhold, qualify, amend or modify, or publicly propose to change, withdraw, withhold, qualify, amend or modify, in a manner adverse to the Amber Entities, any recommendation by the ARYA Board or ARYA of Transaction Proposals, (y) adopt, approve, recommend or declare advisable or publicly propose to adopt, approve, recommend or declare advisable, any ARYA Acquisition Proposal or (z) except as otherwise required by applicable Law, fail to include the ARYA Board Recommendation in the Registration Statement / Proxy Statement.

 

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6.8            Nasdaq Listing. ARYA shall use its reasonable best efforts to (a) cause the ARYA Class A Shares issuable in accordance with this Agreement to be approved for listing on Nasdaq, subject to official notice of issuance thereof and (b) to satisfy any applicable initial and continuing listing requirements of Nasdaq, in each case prior to the Closing. Each Amber Entity shall, and shall cause its Representatives to, reasonably cooperate with ARYA and its Representatives in connection with the foregoing. From the date of this Agreement through the Closing, (i) ARYA will use reasonable best efforts to keep current and timely file all of its required public filings with the SEC and otherwise comply in all material respects with applicable securities Laws and (ii) if ARYA receives any written or, to the knowledge of ARYA, oral notice from Nasdaq that ARYA has failed, or would reasonably be expected to fail, to meet the listing requirements of the Nasdaq as of the Closing or within six (6) months thereafter for any reason, then ARYA shall, if not otherwise prohibited by applicable Law or Order, give written notice of such Nasdaq notice to Amber GT Parent as promptly as practicable thereafter, including, if applicable and not otherwise prohibited by applicable Law or Order, a copy of any written notice received from Nasdaq (provided that a failure, in and of itself, to give any notice contemplated by this clause (ii) shall in no event cause the condition to Closing set forth in Section 8.3(a) to not be satisfied). Notwithstanding the foregoing or anything to the contrary herein, in no event shall ARYA be deemed to be in breach or violation of this Section 6.8 to the extent such breach or violation of this Section 6.8 directly or indirectly resulted from a breach by any Amber Entity of any of its applicable covenants, agreements and obligations hereunder.

 

6.9            Trust Account. Upon satisfaction or, to the extent permitted by applicable Law, waiver of the conditions set forth in Article VIII and provision of notice thereof to the Trustee, (a) at the Closing, ARYA shall (i) cause the documents, certificates and notices required to be delivered to the Trustee pursuant to the Investment Management Trust Agreement to be so delivered, and (ii) make all appropriate arrangements to cause the Trustee to (A) pay as and when due all amounts, if any, payable to the ARYA shareholders in respect of the ARYA Share Redemptions, (B) pay the amounts due to the underwriters of ARYA’s initial public offering for their Deferred Underwriting Commissions as set forth in the Investment Management Trust Agreement and (C) immediately thereafter, pay all remaining amounts then available in the Trust Account to ARYA, or to such other recipients as ARYA designates (as approved by Amber GT Parent), in accordance with the Investment Management Trust Agreement, and (b) thereafter, the Trust Account shall terminate, except as otherwise provided therein.

 

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6.10         Directors’ and Officers’ Indemnification and Insurance.

 

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

 

(b)            ARYA shall not have any obligation under this Section 6.10 to any ARYA D&O Person when and if a court of competent jurisdiction shall ultimately determine (and such determination shall have become final and non-appealable) that the indemnification of such ARYA D&O Person in the manner contemplated hereby is prohibited by applicable Law.

 

(c)            ARYA shall purchase, at or prior to the Closing, and ARYA shall maintain, or cause to be maintained, in effect for a period of six (6) years following the Closing, without any lapses in coverage, a “tail” policy providing directors’ and officers’ liability insurance for the benefit of those Persons who are covered (whether directly, via endorsement or otherwise) by any comparable insurance policies of ARYA in effect as of the date of this Agreement with respect to matters occurring on or prior to the Closing. Such insurance policy shall provide coverage on terms (with respect to coverage and amount) that are substantially the same as (and no less favorable in the aggregate to the Persons covered thereby than) the coverage provided under ARYA’s directors’ and officers’ liability insurance policies in effect as of the date of this Agreement; provided that ARYA shall not be obligated to pay annual premiums in excess of three hundred-fifty percent (350%) of the most recent annual premium paid by ARYA prior to the date of this Agreement and, in such event, ARYA shall purchase the maximum coverage available for three hundred-fifty percent (350%) of the most recent annual premium paid by ARYA prior to the date of this Agreement.

 

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(d)            If ARYA or any of its successors or assigns (i) shall merge or consolidate with or merge into any other corporation or entity and shall not be the surviving or continuing corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of their respective properties and assets as an entity in one or a series of related transactions to any Person, then in each such case, proper provisions shall be made so that the successors or assigns of ARYA shall assume all of the obligations set forth in this Section 6.10.

 

(e)            The Persons entitled to the indemnification, liability limitation, exculpation or insurance coverage set forth in this Section 6.10 are intended to be third-party beneficiaries of this Section 6.10. This Section 6.10 shall survive the consummation of the transactions contemplated by this Agreement and shall be binding on all successors and assigns of ARYA.

 

6.11         Post-Closing Directors and Officers.

 

(a)            Each of ARYA and the Amber Entities shall take all such action within their respective power as may be necessary or appropriate such that effective immediately after the Closing: (i) the ARYA Board shall consist of seven (7) directors, which shall be divided into three (3) classes, designated Class I, II and III, with Class I consisting of two (2) directors, Class II consisting of two (2) directors and Class III consisting of three (3) directors; (ii) the members of the ARYA Board are the individuals determined in accordance with Section 6.11(b); (iii) the members of the compensation committee, audit committee and nominating committee of the ARYA Board are the individuals determined in accordance with Section 6.11(c); and (iv) the officers of ARYA and the Company (collectively, the “Officers”) are the individuals determined in accordance with Section 6.11(d).

 

(b)            Prior to the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act and in accordance with Section 6.11(a), ARYA Sponsor and Amber GT Parent shall designate the directors that will be on the ARYA Board immediately after the Closing, as follows: (i) the ARYA Sponsor shall designate one (1) individual (the “ARYA Designee”) as a Class III director; (ii) Amber GT Parent shall designate two (2) individuals (each, an “Amber GT Parent Designee”), one of which shall be a Class II director and the other a Class I director; and (iii) ARYA and Amber GT Parent shall mutually agree to designate four (4) individuals (each, an “Agreed Designee”), each of which shall be designated to such other director class positions as mutually agreed by ARYA and Amber GT Parent (such agreement not to be unreasonably withheld, conditioned or delayed by either ARYA or Amber GT Parent).

 

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(c)         Prior to the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, (i) the ARYA Sponsor may designate the ARYA Designee to serve as a member of the compensation committee, the audit committee or the nominating committee of the ARYA Board immediately after the Closing, subject to applicable listing rules of Nasdaq and applicable securities Laws, (ii) Amber GT Parent may designate up to one Amber GT Parent Designee to serve as a member of the compensation committee, the audit committee or the nominating committee of the ARYA Board immediately after the Closing, subject to applicable listing rules of Nasdaq and applicable securities Laws, and (iii) the ARYA Sponsor and Amber GT Parent shall mutually agree (such agreement not to be unreasonably withheld, conditioned or delayed by either the ARYA Sponsor or Amber GT Parent) to the other members of the compensation committee, the audit committee or the nominating committee of the ARYA Board immediately after the Closing.

 

(d)         The individuals identified on Section 6.11(d) of the Amber Disclosure Schedules shall be Officers immediately after the Closing, with each such individual holding the title set forth opposite his or her name. In the event that any such individual identified on Section 6.11(d) of the Amber Disclosure Schedules is unwilling or unable (whether due to death, disability or otherwise) to serve as an Officer, then, prior to the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, Amber GT Parent and ARYA Sponsor shall mutually determine (such Agreement not to be unreasonably withheld, conditioned or delayed by either Amber GT Parent or ARYA Sponsor) another individual to serve as such Officer and, upon such mutual agreement, Section 6.11(d) of the Amber Disclosure Schedules shall automatically be deemed amended to include such replacement individual as an Officer in lieu of, and to serve with the same title as, the individual so replaced.

 

6.12         Tax Matters.

 

(a)         Cooperation. Following the Closing Date, each Party shall reasonably cooperate (and cause its Affiliates to reasonably cooperate), as and to the extent reasonably requested by each other Party, in connection with the preparation and filing of Tax Returns with respect to the Business and any examination or other Tax Action with respect to Taxes or Tax Returns of or with respect to any of the Business Entities for any Pre-Closing Tax Period or Straddle Period. Such cooperation shall include the provision of records and information which are reasonably relevant to any such audit or other Tax Action, making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, and executing any powers of attorney required in connection with any such audit or other Tax Action. Following the Closing, each of Amber GT Parent and ARYA shall (and shall cause its respective Affiliates to) retain all books and records with respect to Tax matters pertinent to the Business Entities or the Business relating to any taxable period (or portion of any taxable period) beginning before the Closing Date until the expiration of the statute of limitations (including any extensions thereof) of the respective taxable periods, and to abide by all record retention agreements entered into with any Taxing Authority. Each of Amber GT Parent and ARYA shall (and shall cause its respective Affiliates to) provide any information reasonably requested to allow Amber GT Parent, ARYA or the Business Entities to comply with any information reporting or withholding requirements contained in the Code or other applicable Laws or to compute the amount of payroll or other employment Taxes due with respect to any payment made in connection with this Agreement. For the avoidance of doubt, this Section 6.12(a) shall not apply to any dispute or threatened dispute among the Parties.

 

(b)         Transfer Taxes. All Transfer Taxes, other than the Pre-Closing Reorganization Transfer Taxes, shall be borne by the Company. Unless otherwise required by applicable Law, the Company shall prepare and file, or cause to be prepared and filed, all necessary Tax Returns in respect of such Transfer Taxes and other documentation with respect to all Transfer Taxes, and, if required by applicable Law, Amber GT Parent, the Business Entities and ARYA shall, and shall cause their respective Affiliates to, reasonably cooperate and join in the execution of any such Tax Returns and other documentation. The Parties shall reasonably cooperate to establish any available exemption from (or reduction in) any such Transfer Taxes.

 

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(c)         Intended Tax Treatment. The Parties acknowledge and agree that for U.S. federal and, as applicable, state and local Tax purposes, it is intended that: (i) prior to the Pre-Closing Reorganization, the Company has been an entity disregarded as separate from Amber GT, and (ii) as a result of the contribution of the Closing Date Contribution Amount by ARYA, the Company will become a partnership pursuant to the general principles of Rev. Rul. 99-5, 1991-1 C.B. 434, Situation 2 (clauses (i) and (ii), the “Intended Tax Treatment”). The Parties shall, and shall cause each of their respective applicable Affiliates to, in each case except as otherwise required by a “determination” within the meaning of Section 1313(a) of the Code, (A) prepare and file all Tax Returns consistent with the Intended Tax Treatment and (B) take no position in any Tax Action that is inconsistent with the Intended Tax Treatment.

 

(d)         Straddle Periods. For purposes of this Agreement, whenever it is necessary to determine the liability for Taxes of or with respect to any Business Entity or otherwise with respect to the Business for any Straddle Period, the determination of such Taxes for the portion of the Straddle Period ending on and including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two (2) taxable years or periods, one which ended on (and included) the Closing Date and the other which began on the day following the Closing Date, and all taxable items of or with respect to such Business Entity (or otherwise with respect to the Business) for the Straddle Period shall be allocated between such two (2) taxable years or periods on a “closing of the books basis” by assuming that the books of the applicable Person were closed at the close of the Closing Date; provided, however, (i) exemptions, allowances or deductions that are calculated on an annual basis, such as the deduction for depreciation, and (ii) periodic Taxes (other than income, franchise/capital, sales, use, or withholding Taxes) such as real and personal property Taxes, shall be apportioned ratably between such periods based on the number of days for the portion of the Straddle Period ending on and including the Closing Date, on the one hand, and the number of days for the portion of the Straddle Period beginning after the Closing Date, on the other hand.

 

(e)         Contests Related to Taxes. Each Party agrees to provide written notice to the other applicable Parties within fifteen (15) days of the receipt of any written notice by such Party of any Tax Action involving Taxes payable by or with respect to any Business Entity or otherwise with respect to the Business for any Pre-Closing Tax Period or Straddle Period (a “Tax Claim”). Amber GT Parent shall have the responsibility for, and the right to control, any Tax Claims that relate to a Pre-Closing Tax Period it elects to control by notice to the Company within fifteen (15) days after receipt of notice thereof from the Taxing Authority or pursuant to this Section 6.12(e); provided that (i) Amber GT Parent shall not settle or compromise any such Tax Claim without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed) and (ii) the Company may participate in (but not control) any such defense and investigation at its sole cost and expense. The Company shall control all Tax Claims that relate to a Pre-Closing Tax Period that Amber GT Parent does not elect to control pursuant to this Section 6.12(e) and all Tax Claims that relate to a Straddle Period; provided that (i) the Company shall not settle or compromise any such Tax Claim that would reasonably be expected to materially increase Amber GT Parent’s Tax liability or indemnification obligations pursuant to this Agreement without the prior written consent of Amber GT Parent (such consent not to be unreasonably withheld, conditioned or delayed) and (ii) Amber GT Parent may participate in (but not control) any such defense and investigation at its sole cost and expense.

 

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(f)         Any refund (or credit in lieu of a refund) received by ARYA, the Company or the Business Entities for Taxes (including any interest thereon received from a Taxing Authority) with respect to the Business Entities or otherwise with respect to the Business for any Pre-Closing Tax Period or the pre-Closing portion of any Straddle Period (such Taxes for a Straddle Period to be determined in accordance with Section 6.12(d)) shall be for the account of Amber GT Parent, and ARYA or the Company shall (or shall cause the applicable Business Entity to) promptly (and in no event later than five (5) Business Days after receipt by ARYA, the Company or any Business Entity thereof) pay to Amber GT Parent the amount of any such refund; provided, that ARYA, the Company and the Business Entities shall not be required to affirmatively seek any such refund (or credit). A refund (or credit) of Taxes shall be treated for this purpose as received to the extent that any amount otherwise refundable has instead been set off or otherwise applied to or against, or has otherwise reduced, any Tax payable by, or liability of, (i) the Business Entities for any period other than a Pre-Closing Tax Period or the pre-Closing portion of any Straddle Period, or (ii) ARYA or the Company. The amount of any refund (or credit) payable to Amber GT Parent pursuant to this Section 6.12(f) shall be net of all reasonable out-of-pocket costs and expenses (including Taxes) incurred by ARYA, the Company or the Business Entities in connection with realizing such refund (or credit).

 

(g)         Tax Covenants Survival. Notwithstanding any provision of this Agreement to the contrary, the covenants and agreements set forth in this Section 6.12 shall survive until sixty (60) days after the expiration of the applicable statute of limitations.

 

6.13         Post-Closing Incentive Equity Plan; Post-Closing Employee Stock Purchase Plan. The ARYA Board shall approve and adopt an equity incentive plan, substantially in the form attached hereto as Exhibit I-1 and with any changes or modifications thereto as Amber GT Parent and ARYA may mutually agree in writing (such agreement not to be unreasonably withheld, conditioned or delayed by either Amber GT Parent or ARYA, as applicable) (the “Post-Closing Incentive Equity Plan”), in the manner prescribed under applicable Laws, effective as of one (1) day prior to the Closing Date, reserving 9,000,000 ARYA Class A Shares for issuance thereunder and providing for a ten (10)-year annual “evergreen” replenishment of the ARYA Class A Shares reserved for issuance thereunder, in an amount, which when added to the ARYA Class A Shares reserved for issuance under the Post-Closing Incentive Equity Plan immediately prior to each such replenishment, shall equal 5% of the then outstanding ARYA Shares. The ARYA Board shall approve and adopt an employee stock purchase plan, substantially in the form attached hereto as Exhibit I-2 and with any changes or modifications thereto as Amber GT Parent and ARYA may mutually agree in writing (such agreement not to be unreasonably withheld, conditioned or delayed by either Amber GT Parent or ARYA, as applicable) (the “Post-Closing Employee Stock Purchase Plan”), in the manner prescribed under applicable Laws, effective as of one (1) day prior to the Closing Date, reserving the number of ARYA Class A Shares set forth therein for issuance thereunder.

 

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6.14         Pre-Closing Reorganization; Excluded Assets and Liabilities.

 

(a)            The Amber Entities shall, and shall cause their respective Representatives to (x) use reasonable best efforts to complete the Pre-Closing Reorganization no later than immediately prior to the Closing, and (y) reasonably consult with and cooperate with ARYA and its Representatives in connection with the Pre-Closing Reorganization and otherwise keep ARYA and its Representatives apprised, in reasonable detail, of the status of the Pre-Closing Reorganization. Without limiting the generality of the foregoing, (i) as promptly as practicable following the date hereof (and in any event fifteen (15) Business Days prior to the Closing Date), Amber GT Parent shall provide, or cause to be provided, drafts of all agreements, documents and instruments related to the Pre-Closing Reorganization, and give ARYA and its Representatives a reasonable amount of time to review and provide comments to all such agreements, documents and instruments and shall consider in good faith all comments provided by ARYA and its Representatives, and (ii) none of the Amber Entities or any of their Affiliates shall enter into any agreement, document or instrument related to the Pre-Closing Reorganization that is not in a form and substance reasonably satisfactory to ARYA.

 

(b)           Notwithstanding anything in Section 2.1 or otherwise in this Agreement to the contrary, from and after the Pre-Closing Reorganization, Amber GT Parent and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the transfer, conveyance, assignment and delivery to the Company, and the Contributed Business Assets shall not include, the following assets, properties, claims and rights (whether tangible, intangible or otherwise and wherever located) (collectively, the “Excluded Assets”):

 

(i)          all cash, cash equivalents, credit cards and bank accounts of Amber GT Parent or any of its Affiliates (other than, for the avoidance of doubt, the Business Entities);

 

(ii)         except as provided in Article VII, the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Employee Benefit Plans;

 

(iii)        all Intellectual Property, other than the Contributed Intellectual Property;

 

(iv)        all insurance policies and rights thereunder, other than to the extent provided in Section 1.92(l) or Section 6.20;

 

(v)         all assets, properties and rights described on Section 6.14(b)(v) of the Amber Disclosure Schedules; and

 

(vi)        all other assets, properties and rights of Amber GT Parent or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 1.92.

 

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(c)           Notwithstanding anything to the contrary in this Agreement, from and after the Pre-Closing Reorganization, Amber GT Parent shall retain and remain responsible for and satisfy, discharge and perform when due, and ARYA and its Affiliates (including, from and after the Closing, the Business Entities) shall have no obligation with respect to, all of the following Liabilities (collectively, the “Excluded Liabilities”):

 

(i)          all Pre-Closing Taxes provided, that for the avoidance of doubt, this clause (i) is the only clause of this Section 6.14(c) that includes Liabilities with respect to Taxes;

 

(ii)         all Liabilities to the extent related to or arising out of any Indebtedness of the Business Entities existing at or prior to the Closing or of Amber GT Parent, Amber GT or any of their respective Affiliates (other than the Business Entities) existing at any time;

 

(iii)        all Liabilities to the extent related to or arising out of (A) any employee or independent contractor of the Amber Entities or any of their Affiliates who is not a Transferred Employee at any time prior to, on or after the Closing Date, (B) any Transferred Employee on or prior to the Closing (including, all Liabilities to the extent relating to or attributable to such employee’s or contractor’s work, employment or engagement prior to the Closing or any claim relating to or attributable to facts that occurred prior to the Closing) or (C) any incentive equity or similar awards of Amber GT Parent or any of its Affiliates held by any Transferred Employee;

 

(iv)        all Liabilities in respect of any Action, whether or not presently threatened, asserted or pending, to the extent related to or arising out of the conduct of the Business or the operation of the Contributed Business Assets prior to the Closing;

 

(v)         except as set forth in Article VII, all Liabilities to the extent related to or arising out of the matters listed on Section 6.14(c)(v) of the Amber Disclosure Schedules or any Employee Benefit Plans;

 

(vi)        all Liabilities related to or arising out of any noncompliance by Amber GT Parent or any of its Affiliates, employees or agents with any applicable Law;

 

(vii)       each Change of Control Payment to the extent related to any Contracts or other arrangements in effect prior to the Closing and that are not otherwise agreed in writing by ARYA;

 

(viii)      all Liabilities allocated to Amber GT Parent pursuant to Section 6.17;

 

(ix)         all Amber Entity Expenses allocated to Amber GT Parent pursuant to Section 11.5; and

 

(x)          all other Liabilities of Amber GT Parent or any of its Affiliates or to the extent related to or arising out of the Contributed Business Assets or the Business, in each case, that are not specifically addressed by Section 1.50.

 

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6.15         Limitation on Assignment of Contributed Business Assets; Third-Party Consents.

 

(a)         If the contribution, grant, assignment, transfer, conveyance or delivery to any Business Entity of any asset that would be a Contributed Business Asset or any claim or right or any benefit arising thereunder or resulting therefrom would be prohibited under applicable Law or would require the Consent of any Person and such Consent has not been given or obtained, as applicable, at or prior to the Closing (collectively, the “Non-Assignable Assets”), then, subject to the last sentence of this Section 6.15(a), (i) the Closing shall proceed in accordance with this Agreement without the contribution, grant, assignment, transfer, conveyance or delivery, as applicable, of the Non-Assignable Assets, and (ii) to the extent not inconsistent with the terms of any Non-Assignable Asset or applicable Law, the Parties shall treat the Company as the owner thereof for Tax purposes from and after the Closing. Notwithstanding the foregoing, (A) an asset shall not constitute a Non-Assignable Asset and the Closing shall not proceed as provided in the immediately preceding sentence if the prohibition under applicable Law or the failure to give or obtain at or prior to the Closing was proximately caused by any Amber Entity’s breach of any covenant, agreement or obligation under this Agreement (including any of those set forth in Section 6.1), unless such breach is, for purposes of this Section 6.15(a) and, if applicable, Section 8.3(a), waived by ARYA, and (B) this Section 6.15(a) shall not be construed as limiting, modifying or otherwise affecting any of the other covenants or agreements of the Amber Entities under this Agreement to the extent such covenants or agreements require performance at or prior to the Closing.

 

(b)         With respect to each Non-Assignable Asset, (i) from and after the Closing, Amber GT Parent and Amber GT shall, and shall cause their Affiliates to, use reasonable best efforts to give, or cause to be given, or to obtain, or cause to be obtained, each Consent required to contribute, grant, assign, transfer, convey or deliver, as applicable, such Non-Assignable Asset and (ii) upon obtaining or giving any Consent of the type described in clause (i), the applicable Non-Assignable Asset shall be deemed to have been automatically contributed, granted, assigned, transferred, conveyed or delivered, as applicable, to the Company (or, in the sole discretion of ARYA, any Affiliate thereof) on the terms set forth in this Agreement for no additional consideration without the requirement of any further action of ARYA or any of its Affiliates, as of the Closing, except to the extent the date of such Consent is deemed by applicable Law to have occurred on another date or is otherwise consented to in writing by ARYA to have occurred as of another date, in which case, as of such date. ARYA shall, and shall cause its pertinent Affiliates to, at the sole cost and expense of Amber GT Parent, reasonably cooperate with Amber GT Parent and Amber GT in connection with the foregoing. Notwithstanding the foregoing, in no event shall (A) ARYA or any its Affiliates be required to make any payments to secure any such Consent or amend, modify or supplement any Contract to which such Consent may relate, or (B) Amber GT Parent, Amber GT or any of their respective Affiliates amend, modify or supplement any Contract to which such Consent may relate without ARYA’s prior written consent.

 

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(c)         From and after the Closing until a Non-Assignable Assets is contributed, granted, assigned, transferred, conveyed or delivered, as applicable, as provided in Section 6.15(b), each of Amber GT Parent and Amber GT shall, and shall cause their respective Affiliates to, (i) provide the Company and its Affiliates the maximum allowable use of the Non-Assignable Assets, including by establishing an agency type or similar arrangement reasonably satisfactory to ARYA under which the Company and its Affiliates would obtain the claims, rights and benefits and assume the corresponding liabilities and obligations with respect thereto (including by means of any subcontracting, sublicensing or subleasing arrangement) and (ii) exercise, enforce and exploit, only at the direction of ARYA and for the benefit of the Company and Affiliates, any and all claims, rights and benefits of Amber GT Parent, Amber GT or any of their respective Affiliates under or with respect to, or arising in connection with, such Non-Assignable Asset to the extent permitted by applicable Law. Except to the extent expressly prohibited by applicable Law, Amber GT Parent shall hold in trust for and pay to the Company (or, in the sole discretion of ARYA, any Affiliate thereof) promptly upon receipt thereof, all income, proceeds and other monies received by Amber GT Parent, Amber GT or any of their Affiliates in respect of any such Non-Assignable Asset, in each case, without any interest; provided that ARYA shall reimburse Amber GT Parent for any and all reasonable, documented and out-of-pocket costs, fees, expenses and amounts, other than to the extent constituting Excluded Liabilities, that are incurred by Amber GT solely as a result of any arrangement contemplated by this Section 6.15(c). Each of the Parties intend that, as of Closing, for applicable tax purposes, the Company should be treated as the beneficial owner of each Non-Assignable Asset (and shall have the benefits and burdens of such beneficial ownership). and the Parties shall file all Tax Returns in a manner consistent with such intention.

 

(d)         Prior to the Closing, (i) ARYA and Amber GT Parent shall each use commercially reasonable efforts to, effective as of the Closing, have Amber GT Parent and any of its Affiliates (other than, for the avoidance of doubt, the Business Entities) removed as guarantor of or obligor of Liabilities arising after the Closing with respect to the matter set forth on Section 6.15(d) of the Amber Disclosure Schedules (the “Existing Amber Guaranty”) and (ii) to the extent required to obtain a release of Amber GT Parent or any of its Affiliates (other than, for the avoidance of doubt, the Business Entities) as a guarantor of or obligor of Liabilities arising after the Closing under the Existing Amber Guaranty, ARYA shall execute a guarantee agreement, in a form and substance reasonable acceptable to ARYA and effective as of the Closing, with respect to ARYA being a guarantor of Liabilities in respect of the Existing Amber Guaranty to the extent arising after the Closing. If the actions contemplated by the preceding sentence are not completed at or prior to the Closing, then (x) ARYA and Amber GT Parent shall each use commercially reasonable efforts to, as promptly as practicable after the Closing, have Amber GT Parent and any of its Affiliates (other than, for the avoidance of doubt, the Business Entities) removed as guarantor of or obligor of Liabilities arising after the Closing with respect to the Existing Amber Guaranty and (ii) to the extent required to obtain a release of Amber GT Parent or any of its Affiliates (other than, for the avoidance of doubt, the Business Entities) as a guarantor or obligor of Liabilities arising after the Closing under the Existing Amber Guaranty, ARYA shall execute a guarantee agreement, in a form and substance reasonably acceptable to ARYA, with respect to ARYA being a guarantor of Liabilities in respect of the Existing Amber Guaranty to the extent arising after the Closing, and (y) ARYA shall, from and after the Closing, indemnify, defend and hold harmless Amber GT Parent or its Affiliates, as applicable, against or from any Liability arising out of or resulting from the Existing Amber Guaranty following the Closing to the extent provided in, and in accordance with, Section 10.3 and the other applicable provisions in Article X. Notwithstanding the foregoing or anything to the contrary contained in this Agreement, (A) in no event shall (i) ARYA or any its Affiliates be required to make any payments or other concessions, or otherwise amend, modify or supplement any Contract related to the Existing Amber Guaranty, in order to remove Amber GT Parent or any of its Affiliates as a guarantor or obligor with respect to the Existing Guaranty as contemplated by this Section 6.15(d) or, as applicable, otherwise in connection with ARYA becoming a guarantor in respect of the Existing Amber Guaranty as contemplated by this Section 6.15(d), except, for the avoidance of doubt, for any amendments, modifications or supplements to any such Contract solely to the extent that it removes Amber GT Parent or its Affiliates as a guarantor or obligor of, or substitutes ARYA in respect of, the applicable Liabilities with respect to the Existing Amber Guaranty as expressly contemplated by this Section 6.15(d), and (ii) Amber GT Parent or any of its Affiliates take any of the actions contemplated by clause (i), except for any payments that are paid in full by Amber GT Parent or its Affiliates, and (B) for the avoidance of doubt, in no event shall ARYA or any of its Affiliates have any obligations or Liabilities with respect to any Excluded Liabilities.

 

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6.16         Misallocated Assets. Subject to Section 6.15 and Section 6.17, following the Closing, in the event that any Party becomes aware that (a) record or beneficial ownership or possession of any asset that is a Contributed Business Asset has not been contributed, granted, assigned, transferred, conveyed or, as applicable, delivered by the applicable Amber Entity or its Affiliates to a Business Entity or any of its Affiliates at or prior to the Closing, or that any Assumed Business Liability has not been assumed by a Business Entity or any of its Affiliates at or prior to the Closing, or (b) record or beneficial ownership or possession of an asset that is not a Contributed Business Asset has been contributed, granted, assigned, transferred, conveyed or delivered, as applicable, by Amber GT Parent or any of its Affiliates to the Company or one of its Affiliates at or prior to the Closing, or that any Excluded Liability has been erroneously assumed by the Company or any of its Affiliates at or prior to the Closing, then it shall promptly notify, in the case of Amber GT Parent or Amber GT, ARYA or, in the case of ARYA or the Company, Amber GT Parent, and the Parties shall thereafter reasonably cooperate to, as promptly as practicable, (i) contribute, grant, assign, transfer convey or deliver (or cause to be contributed, granted, assigned, transferred, conveyed or delivered), as applicable, without consideration the relevant asset to the Company or an Affiliate thereof designated by ARYA in writing or Amber GT Parent or an Affiliate thereof designated by Amber GT Parent in writing, as applicable, or (ii) cause the relevant Liability to be assumed by the Company or an Affiliate thereof designated by ARYA in writing or Amber GT Parent or an Affiliate thereof designated by Amber GT Parent in writing, as applicable, in each case pursuant to this Agreement.

 

6.17         Shared Contracts. Except as otherwise agreed by Amber GT Parent and ARYA in writing or as otherwise expressly provided in this Agreement or any of the Additional Agreements, until the expiration date of any Specified Shared Contract, the Parties shall (and shall cause their respective Affiliates to) use reasonable best efforts to obtain or structure an arrangement for the Company and its Affiliates to, from and after the Closing, obtain the claims, rights and benefits, and assume the corresponding Liabilities and obligations thereunder (other than to the extent related to or arising out of any breach or other violation of such Specified Shared Contract at or prior to the Closing), of such portion of any such Specified Shared Contract that is related to or arising out of the Business with terms and conditions materially similar to those terms and conditions applicable as of the date hereof or, if entered into after the date hereof, as of immediately prior to the Closing, as reasonably determined by Amber GT Parent and ARYA in good faith. With respect to Shared Contractual Liabilities pursuant to, under or relating to any Specified Shared Contract, such Shared Contractual Liabilities shall be allocated between Amber GT Parent and the Company as follows: (a) if a liability is incurred solely in respect of either the Business or the other businesses of Amber GT Parent or any of its Affiliates, such liability shall be allocated to the Company or an Affiliate thereof designated in writing by ARYA (in respect of the Business) or Amber GT Parent (in respect of the other businesses of Amber GT Parent or any of its Affiliates); and (b) if a liability cannot be so allocated under clause (a), such liability shall be allocated to Amber GT Parent or the Company or an Affiliate thereof designated in writing by ARYA, as the case may be, based on the relative proportion of total benefit received by the Company or any of its Affiliates in respect of the Business and Amber GT Parent or any of its Affiliates in respect of its other businesses under the relevant Specified Shared Contract, as reasonably determined in good faith by Amber GT Parent and ARYA. Notwithstanding the foregoing or anything to the contrary in this Agreement, (i) Amber GT Parent or ARYA, as applicable, shall be responsible for any or all Liabilities arising from its (or its Affiliates’) direct or indirect breach of any Specified Shared Contract and (ii) from and after the Closing, except as required by applicable Law or with the prior written consent of ARYA (not to be unreasonably withheld, condition or delayed), Amber GT Parent shall not, and shall cause its Affiliates not to, (A) amend or modify in a manner that is adverse to ARYA, any of its Affiliates or the Business in any material respect or terminate any Specified Shared Contract (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Specified Shared Contract pursuant to its terms), or (B) waive any material benefit or right under any Specified Shared Contract to the extent related to the Business.

 

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6.18         Restrictive Covenants.

 

(a)         Amber GT Parent covenants and agrees that, during the period beginning as of the Closing Date and ending on the twelve (12) month anniversary thereof (the “Restrictive Covenant Period”), other than with respect to the arrangements set forth in the Co-Development and Commercialization Agreement, it shall not, and shall cause its Affiliates not to, directly or indirectly, (i)  acquire, finance, own any interest in, manage, control, participate in, consult with, render services for, operate or in any manner engage in the Business (collectively, the “Restricted Business”) anywhere in the world, (ii) conduct or engage in a Competing Business or (iii) take any action that is designed or intended to have the effect of discouraging any licensor, client, supplier, vendor, customer or other business relation of the Business from maintaining the same business relationships with the Company or any of its Affiliates after the Closing as it maintained with such Person prior to the Closing or at any time during the Restrictive Covenant Period. Notwithstanding the foregoing, (A) direct or indirect ownership of less than five percent (5%) of the outstanding Equity Securities of a publicly traded corporation shall not, in and of itself, be deemed to be engaging in the Restricted Business or otherwise constitute a violation of this Section 6.18(a) and (B) this Section 6.18(a) shall not prohibit or otherwise restrict Amber GT Parent from entering into or consummating an Amber GT Parent Change of Control Transaction; provided that, from and after the consummation of any such Amber GT Parent Change of Control Transaction and continuing until the end of the Restrictive Covenant Period, the restrictions set forth in this Section 6.18(a) shall continue to apply to Amber GT Parent and its controlled Affiliates (but not, for the avoidance of doubt, the acquiring Person(s) or any of its or their Affiliates as of immediately prior to the consummation of such Amber GT Parent Change of Control Transaction).

 

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(b)         ARYA covenants and agrees that, during the Restrictive Covenant Period, other than with respect to the arrangements set forth in the Co-Development and Commercialization Agreement, it shall not, and shall cause its Affiliates not to, directly or indirectly, (i)  acquire, finance, own any interest in, manage, control, participate in, consult with, render services for, operate or in any manner engage in the Retained Business anywhere in the world, (ii) conduct or engage in a Competing Business or (iii) take any action that is designed or intended to have the effect of discouraging any licensor, client, supplier, vendor, customer or other business relation of the Retained Business from maintaining the same business relationships with Amber GT or any of its Affiliates after the Closing as it maintained with such Person prior to the Closing or at any time during the Restrictive Covenant Period (it being understood and agreed, for the avoidance of doubt, that this clause (iii) shall in no event limit or affect the ability of ARYA or any of its Affiliates from operating or conducting the Business or otherwise having relationships, arrangements or agreements with any such licensor, client, supplier, vendor, customer or other business relation related to the conduct or operation of the Business following the Closing). Notwithstanding the foregoing, (A) direct or indirect ownership of less than five percent (5%) of the outstanding Equity Securities of a publicly traded corporation shall not, in and of itself, be deemed to be engaging in the Retained Business or otherwise constitute a violation of this Section 6.18(b) and (B) this Section 6.18(b) shall not prohibit or otherwise restrict ARYA from entering into or consummating an ARYA Change of Control Transaction; provided that, from and after the consummation of an ARYA Change of Control Transaction and continuing until the end of the Restrictive Covenant Period, the restrictions set forth in this Section 6.18(b) shall continue to apply to ARYA and its controlled Affiliates (but not, for the avoidance of doubt, the acquiring Person(s) or any of its or their Affiliates as of immediately prior to the consummation of such ARYA Change of Control Transaction).

 

(c)         Neither Section 6.18(a) or Section 6.18(b) shall be deemed breached as a result of the ownership by either Amber GT Parent or any of its Affiliates, or ARYA or any of its Affiliates, as applicable, of any interest if such interest arises as a result of the acquisition following the Closing Date of a Person that engages, directly or indirectly, in a Competing Business; provided that (i) such acquisition is not undertaken for the purpose of evading the obligations under Section 6.18(a) or Section 6.18(b), as applicable, and (ii) the applicable Party complies with Section 6.18(d).

 

(d)         In the event that Amber GT Parent, ARYA or any of their Affiliates acquires during the Restricted Covenant Period any interest in a Person that engages, directly or indirectly, in a Competing Business, then Amber GT Parent or ARYA, as applicable, shall, or shall cause any such acquiring Affiliate to, divest the Competing Business so acquired as promptly as practicable (but in any event within twelve (12) months of such acquisition).

 

(e)         Amber GT Parent covenants and agrees that, during the Restrictive Covenant Period, Amber GT Parent shall not, and shall cause its Affiliates not to, directly or indirectly, (i) solicit, recruit, induce or encourage or attempt to solicit, recruit, induce or encourage any Transferred Employee to leave the employ of the Company or any of its Affiliates, (ii) hire, employ or otherwise engage any Transferred Employee or (iii) in any other way adversely interfere with the relationship between any Business Entity or any of its Affiliates, on the one hand, and any Transferred Employee, on the other; provided, however, that the foregoing shall not prohibit (A) any Person from making general employment solicitations, such as through advertisements in publicly available media, so long as such general employment solicitations are not specifically targeted at any employee or other service provider of any Business Entity or its Affiliates and no Transferred Employee is hired or engaged as a result thereof or (B) Amber GT Parent or any of its Affiliates from hiring any Transferred Employee within six (6) months following the date of such individual’s termination of employment with the Company or any of its Affiliates following the Closing Date, so long as such individual was not solicited, recruited, induced or encouraged in violation of this Section 6.18(e).

 

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(f)         ARYA covenants and agrees that, during the Restrictive Covenant Period, ARYA shall not, and shall cause its Affiliates not to, directly or indirectly, (i) solicit, recruit, induce or encourage or attempt to solicit, recruit, induce or encourage any Retained Employee to leave the employ of Amber GT Parent or any of its Affiliates, (ii) hire, employ or otherwise engage any Retained Employee or (iii) in any other way adversely interfere with the relationship between Amber GT Parent or any of its Affiliates, on the one hand, and any Retained Employee, on the other; provided, however, that the foregoing shall not prohibit (A) any Person from making general employment solicitations, such as through advertisements in publicly available media, so long as such general employment solicitations are not specifically targeted at any employee or other service provider of any Business Entity or its Affiliates and no Retained Employee is hired or engaged as a result thereof or (B) ARYA or any of its Affiliates from hiring any Retained Employee within six (6) months following the date of such individual’s termination of employment with Amber GT Parent or any of its Affiliates following the Closing Date, so long as such individual was not solicited, recruited, induced or encouraged in violation of this Section 6.18(f).

 

(g)         Notwithstanding anything to the contrary in this Section 6.18, at any time after the date of this Agreement (i) to the extent that any Transferred Employee submits a bona fide request for a transfer from the Company to Amber GT Parent or any of its Affiliates and such request is not the result of a violation of Section 6.18(e), Amber GT Parent shall be permitted to engage with any such Transferred Employee with respect to an offer of employment with the prior written consent of ARYA (not to be unreasonably withheld, conditioned or delayed) and (ii) to the extent that any Retained Employee submits a bona fide request for a transfer from Amber GT Parent to the Company or any of its Affiliates and such request is not the result of a violation of Section 6.18(f), ARYA shall be permitted to engage with any such Retained Employee with respect to an offer of employment with the prior written consent of Amber GT Parent (not to be unreasonably withheld, conditioned or delayed), and in each case, Amber GT Parent and ARYA shall cooperate in good faith to facilitate any such requests.

 

(h)         If the final judgment of a court of competent jurisdiction declares that any term or provision set forth in this Section 6.18 is invalid or unenforceable, the Parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration or 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, and this Section 6.18 shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed. The Parties intend that the agreements, covenants and obligations set forth in this Section 6.18 shall be deemed to be a series of separate covenants, one for each county or province of each and every state, commonwealth, territory or jurisdiction of each county or province anywhere in the world and one for each month of the Restrictive Covenant Period or other applicable period of time (if any), as applicable.

 

(i)         In the event of a breach or violation of any of the covenants, agreements or obligations in this Section 6.18, the Restrictive Covenant Period shall be tolled until such breach or violation has been duly cured, to the extent such breach or violation is curable.

 

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6.19         Related Party Transactions. Except for the Contracts and other arrangements set forth on Section 6.19 of the Amber Disclosure Schedules or as otherwise expressly provided for under any Additional Agreement, at or prior to the Closing, all Contracts, payables, receivables, Liabilities, obligations and arrangements between any Business Entity, on the one hand, and Amber GT Parent or any of its Affiliates (other than, for the avoidance of doubt, any Business Entity), on the other hand, and any other Amber Related Party Transactions shall be terminated, settled, eliminated or cancelled, as applicable, in each case in a manner reasonably satisfactory to ARYA.

 

6.20         Insurance Coverage.

 

(a)         Except as otherwise expressly provided in this Agreement (including, for the avoidance of doubt, the immediately subsequent sentence) or any Additional Agreement, from and after the Closing, the Company and its Affiliates shall be responsible for obtaining and maintaining replacement insurance coverage for the Business, the Contributed Business Assets and the Business Entities. Notwithstanding the foregoing or anything to the contrary in this Agreement, (i) with respect to any facts, events, circumstances or occurrences, known or unknown, related to or arising out of the Business, the Contributed Business Assets or the Transferred Employees that occurred (in whole or in part) prior to the Closing that are covered by or insured under any occurrence based policies (including self-insurance) or any workers’ compensation insurance policies or comparable workers’ compensation self-insurance, state or country programs of Amber GT Parent or any of its Affiliates, the Company and its Affiliates may make claims, to the extent such claims relate to or arise out of facts, events, circumstances or occurrences occurring prior to the Closing, under any such policies and programs, and (ii) Amber GT Parent shall maintain, or cause to be maintained, in effect for a period of six (6) years following the Closing, without any lapses in coverage, directors’, officers’, employees’ or similar liability insurance for the benefit of those Transferred Employees who are covered (whether directly, via endorsement or otherwise) by any such policies Amber GT Parent or any of its Affiliates in effect as of the date of this Agreement with respect to matters occurring on or prior to the Closing (provided that Amber GT Parent or its Affiliates may substitute any such existing polices with new policies that provide coverage on terms (with respect to coverage and amount) that are substantially the same as (and no less favorable in the aggregate to the Transferred Employees covered thereby than) the coverage provided under such insurance policies in effect as of the date of this Agreement and any such substitution will not result in any lapses in coverage), and the Company, its Affiliates and any such Transferred Employees may make claims, relate to or arise out of facts, events, circumstances or occurrences occurring at or prior to the Closing, under any such policies described in this clause (ii). Amber GT Parent shall, and shall cause its Affiliates to, (A) take such actions as may be reasonably requested by ARYA or the Company or, in the case of clause (ii), any applicable Transferred Employee in connection with the tendering of such claims to the applicable insurers under such policy or program, the pursuit of such claims or the collection of any Losses, to the extent available under such policy or program and (B) provide the Company or an Affiliate thereof or, in the case of clause (ii), any applicable Transferred Employee designated in writing by ARYA with the proceeds it realizes with respect to such claims.

 

(b)         If Amber GT Parent or any of its successors or assigns (i) shall merge or consolidate with or merge into any other corporation or entity and shall not be the surviving or continuing corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of their respective properties and assets as an entity in one or a series of related transactions to any Person, then in each such case, proper provisions shall be made so that the successors or assigns of Amber GT Parent shall assume all of the obligations set forth in this Section 6.20. The Transferred Employees that are entitled to insurance coverage set forth in Section 6.20(a)(ii) are intended to be third-party beneficiaries of such subsection and the related provisions of this Section 6.20.

 

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6.21         Lien Releases. Prior to the Closing Date, Amber GT Parent shall deliver, or cause to be delivered, to ARYA evidence of (i) the termination and release, effective as of the Closing, of all Liens (other than Permitted Liens) relating to the Contributed Business Assets and the Business Entities and (ii) the filing of all documents (including UCC-3 or equivalent termination statements) necessary to effectuate, evidence or reflect in the public record the termination and release, effective as of the Closing, of all such Liens, in each case, in form and substance reasonably satisfactory to ARYA.

 

6.22         Litigation Support.

 

(a)         From and after the Closing, if and for so long as ARYA or any of its Affiliates is prosecuting, contesting or defending any Action by or against a third party in connection with any fact, situation, circumstance or transaction relating to, in connection with or arising from any Excluded Assets or Excluded Liabilities or the pre-Closing conduct of the Business or operation of the Contributed Business Assets, then Amber GT Parent shall, and shall cause its Representatives to, reasonably cooperate with ARYA and its Representatives in such prosecution, contest or defense, including using commercially reasonable efforts to make available its pertinent personnel, participate in meetings, provide such testimony and access to their pertinent books and records and take such other actions as shall be reasonably necessary in connection with such prosecution, contest or defense. From and after the Closing, Amber GT Parent hereby agrees to cause the Company or one of its Affiliates to be substituted or take similar actions, to the extent permitted by applicable Law, for the Company or one of its Affiliates to be substituted in any and all Actions of the type described in Section 1.92(k) or any and all Actions that primarily relate to or would constitute, as applicable, Assumed Business Liabilities (it being understood and agreed, for the avoidance of doubt, that in no event shall the Company or any of its Affiliates have any obligations or liabilities with respect to any Excluded Liabilities).

 

(b)         From and after the Closing, if and for so long as Amber GT Parent or any of its Affiliates is defending any Action by or against a third party in connection with any fact, situation, circumstance or transaction relating to, in connection with or arising from any Contributed Business Assets or Assumed Business Liabilities or the post-Closing conduct of the Business or operation of the Contributed Business Assets, then ARYA shall, and shall cause its pertinent Representatives to, reasonably cooperate with Amber GT Parent and its Representatives, at Amber GT Parent’s sole expense, in such defense, including using commercially reasonable efforts to make available its pertinent personnel, participate in meetings, provide such testimony and access to their books and records and take such other actions as shall be reasonably necessary in connection with such prosecution, contest or defense.

 

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(c)         Notwithstanding Section 6.22(a), Section 6.22(b) or anything to the contrary in this Agreement, (i) this Section 6.22 shall not be applicable (A) to any indemnification claim under Article X which shall be governed by the terms and subject to the conditions set forth in Article X (and not this Section 6.22), or any Action brought by any Party or any of its Affiliates against any other Party or any of its Affiliates (whether under this Agreement, any Additional Agreement or otherwise) or (B) to any third-party claim with respect to Taxes, which shall be governed by Section 6.12(a), (ii) in no event shall ARYA be required to provide any cooperation pursuant to Section 6.22(b) if such Action, directly or indirectly, relates to or arises out of any breach or failure by Amber GT Parent or any its Affiliates to perform or comply with any of their respective covenants or agreements set forth in this Agreement, any Additional Agreement or any Contract entered into by Amber GT Parent or any of its Affiliates, on the one hand, and ARYA or any of its Affiliates, on the other hand, following the Closing and (iii) in the event that ARYA or any of its Affiliates is also the subject of any Action described in Section 6.22(b), then Amber GT shall, and shall cause its pertinent Representatives, to reasonably cooperate with ARYA and its Representatives in the same manner described therein.

 

6.23         Cooperation Regarding Financial Statements and Related Information.

 

(a)         Amber GT Parent shall deliver, or cause to be delivered, to ARYA, as promptly as practicable following the date of the relevant financial statement or other applicable period, the Closing Company Financial Statements. The Closing Company Financial Statements (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except, in the case of any audited financial statements, as may be specifically indicated in the notes thereto and subject, in the case of any unaudited financial statements, to normal year-end audit adjustments (none of which are individually or in the aggregate material) and the absence of notes thereto), (ii) will fairly present in all material respects the financial position, results of operation and cash flows of the Business for the period indicated therein, (iii) in the case of any audited financial statements, will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Business’ auditor and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act (including Regulation S-X or Regulation S-K, as applicable) in effect as of the date of such delivery, at the time of filing the Registration Statement / Proxy Statement and at the time of effectiveness of the Registration Statement / Proxy Statement.

 

(b)         Each Amber Entity shall use its reasonable best efforts (i) to assist, upon advance written notice, during normal business hours and in a manner such as to not unreasonably interfere with the normal operation of any Amber Entity, ARYA in causing to be prepared in a timely manner any other financial information or statements (including customary pro forma financial statements) that are required to be included in the Registration Statement / Proxy Statement and any other filings to be made by ARYA with the SEC in connection with the transactions contemplated by this Agreement or any Additional Agreement and (ii) to obtain the consents of its auditors with respect thereto as may be required by applicable Law or requested by the SEC.

 

(c)         From and after the Closing, ARYA shall, as promptly as practicable following written request by Amber GT Parent, cooperate with Amber GT Parent and use its commercially reasonable efforts to provide to Amber GT Parent, at Amber GT Parent’s sole cost and expense, all reports, documentation or other information in ARYA’s possession or control that are reasonably requested in writing by Amber GT Parent and (i) are necessary, to the extent required by U.S. securities laws or rules or regulations of the SEC, to consolidate the financial statements of the Business Entities with those of Amber GT Parent, in each case to permit Amber GT Parent to include such information in its periodic filings and other reports with the SEC or (ii) are otherwise necessary for Amber GT Parent to comply with any requirement under the U.S. securities laws with respect to its interests in ARYA, including any financial statements required by Regulation S-X under the rules and regulations of the SEC (as interpreted by the staff of the SEC).

 

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6.24         Transition Committee. As promptly as practicable following the date hereof, ARYA and Amber GT Parent shall establish a transition planning team (the “Transition Committee”), composed of (i) two (2) individuals designated by ARYA and (ii) two (2) individuals designated by Amber GT Parent. Subject to applicable Law, the Transition Committee shall, beginning as promptly as practicable following the date hereof and continuing until the Closing, discuss and plan for the transition concerning the operations and conduct of the Business after the Closing (including with respect to information technology transition and migration) and in connection therewith and without limiting the generality of the foregoing, shall meet from time to time as reasonably requested by any member thereof. The Parties acknowledge and agree that (x) in no event shall the implementation of any transition plan (other than, for the avoidance of doubt, the Pre-Closing Reorganization) affect the timing of, or be a condition to, the Closing or affect or otherwise modify any other covenants, agreements or obligations under this Agreement or any Additional Agreement and (y) the Transition Committee shall be terminated at the Closing.

 

6.25         Intellectual Property License

 

(a)         Effective as of the Closing, Amber GT Parent hereby grants (on its own behalf and on behalf of each of its Affiliates) to the Company a non-exclusive, royalty-free and fully paid-up (subject to the terms hereof), worldwide, perpetual, irrevocable and non-terminable, right and license to use, practice and otherwise exploit any and all Licensed Intellectual Property solely in conduct of the Business and any natural evolutions and extensions thereof within the field of Gene Therapy, or otherwise within the field of Gene Therapy (the “Intellectual Property License”).

 

(b)         The Intellectual Property License includes have made rights (as applicable), and the Company shall have the right to grant sublicenses (through multiple tiers) under the Intellectual Property License to (i) its Affiliates, and (ii) to any Person within the field of Gene Therapy in connection with the operation of the Business by the Company or its Affiliate, provided that in the case of this item (ii) such sublicense is in furtherance of the Business of the Company and its Affiliates and any natural evolutions or extensions thereof but not for the independent use of any such third party. The Intellectual Property License shall be transferrable in whole or in part to its Affiliates or in connection with the sale of transfer of substantially all of the assets related to the Business.

 

(c)         Under the Intellectual Property License, as between the Parties, Amber GT Parent shall have the exclusive right (but not the obligation) to control the filing, prosecution, maintenance and enforcement, and to bring or elect not to bring any proceedings to enforce, the Licensed Intellectual Property, at its own expense, and to recover any and all damages or other amounts with respect thereto. The Company shall (and shall cause its Affiliates), at the Company’s expense, to cooperate with the Company in connection with any such enforcement or proceeding. Amber GT Parent shall obtain from its Affiliates the necessary rights to grant to the Company the Intellectual Property License and the rights thereunder.

 

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(d)           For purposes of this Section 6.25, the following terms shall have the following meanings:

 

(i)            “Licensed Intellectual Property” means any and all (a) Patents, (b) Copyrights (whether or not registered or applied for) and (c) Know-How, in each case (in respect of the foregoing (a) through (c)) to the extent owned and Controlled by Amber GT Parent or any of its Affiliates (other than Trademarks and Contributed Business IP) as of the Closing that is used or held for use in the conduct of the Business as currently conducted and as currently proposed to be conducted by the Amber Entities and their Affiliates; and

 

“Controlled” means, with respect to any Intellectual Property, that Amber GT Parent or its applicable Affiliate has the legal right or authority as of the Closing, to grant to the Company the license and rights set forth in this Section 6.25 without a need to make payments to a Third Party related to such grant other than payments agreed by the Company for which the Company will reimburse Amber GT Parent, and without violating (i) the terms of any agreement or other arrangements with any Third Party existing as of the Closing or misappropriating the proprietary or trade secret information of a Third Party or (ii) any Law applicable to such license.

 

6.26         Philadelphia Facility Sublease. As promptly as practicable after the date hereof (and in any event prior to the Closing), Amber GT Parent and ARYA shall cooperate in good faith and shall each use their reasonable best efforts to finalize the Philadelphia Facility Sublease. Notwithstanding the foregoing or anything to the contrary contained in this Agreement, in no event shall ARYA or any of its Affiliates (including, from and after the Closing, any of the Business Entities) be required to make any payment or other concessions in connection with the Company becoming the sublessee thereunder other than (i) any required ordinary course deposit payments and (ii) all rental payment obligations due and owing with respect to the period from and after the Closing, in each case, payable by the Company pursuant to the terms of the Philadelphia Facility Sublease, and in no event shall Amber GT Parent or any of its Affiliates agree to any of the foregoing, except for any payments or concessions either paid or satisfied in full by Amber GT Parent prior to the Closing.

 

6.27        Co-Development and Commercialization Agreement. As promptly as practicable after the date hereof (and in any event prior to the Closing), Amber GT Parent and ARYA shall each negotiate in good faith and reasonably cooperate with the other to finalize the schedules to the Co-Development and Commercialization Agreement, and, without limiting the generality of the foregoing, each of Amber GT and ARYA shall, as promptly as practicable after the date hereof (and in any event prior to the Closing), mutually agree to the schedules to the Co-Development and Commercialization Agreement (such agreement not to be unreasonably withheld, conditioned or delayed by either Amber GT Parent or ARYA).

 

Article VII
EMPLOYEE MATTER COVENANTS

 

7.1           Employee Matters Covenant.

 

(a)           Amber GT Parent shall provide an updated Business Employees List upon reasonable request by ARYA (and, in any event, no later than five (5) days prior to the Closing Date); provided that (i) any such update shall not (A) cause the aggregate number of individuals on such list to exceed 120 without the prior written consent of ARYA, (B) without limiting, and subject to, the covenants and agreements set forth in Section 6.1(b)(vii), Section 6.1(b)(xix) and Section 6.11, other than in the case of a resignation of an executive officer or termination of employment for cause of an executive officer, add any individual who will serve as an executive officer of the Company without the consent of ARYA (such consent not to be unreasonably withheld or delayed) or (C) remove any Business Employees unless such removal is the result of a termination of employment for cause or, solely in the case of any employee with total annualized compensation of less than $300,000 and that is not otherwise an Officer, performance related issues as determined reasonably and in good faith by Amber GT Parent and (ii) in no event will this Section 7.1(a) limit, modify or otherwise affect any of the other covenants, agreements or obligations of the Amber Entities hereunder (including those set forth in Section 6.1).

 

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(b)           As part of the Pre-Closing Reorganization, and subject to Section 7.1(e), the Amber Entities shall, and shall cause their respective Affiliates, as applicable, to transfer the employment of each Business Employee who is not employed by a Business Entity (other than an Inactive Business Employee) to the Company or another Business Entity designated in writing by ARYA prior to the Closing Date. Each Business Employee who is actively employed by a Business Entity immediately prior to the Closing and who continues to be so employed as of immediately following the Closing shall be referred to herein as a “Transferred Employee.” Prior to the Closing, the Company and Amber GT Parent shall cause the Company to adopt employee welfare benefit plans that are substantially identical to those employee welfare benefit plans covering the Business Employees prior to the Closing, which plans shall provide coverage to the Transferred Employees in accordance with the requirements of this Section 7.1(b) from and after the Closing Date (as such plans may be amended or terminated from time to time by the Company following the Closing). For the one (1)-year period immediately following the Closing (or the date of the termination of the relevant Transferred Employee, if sooner), the Company or an Affiliate shall cause each Transferred Employee to be provided with (i) salary or wages and (ii) annual cash bonus opportunities and employee benefits (excluding equity-based compensation, special or one-time bonuses (including retention, change in control or similar bonuses), pension and retiree welfare benefits, and any deferral opportunity under any nonqualified deferred compensation plan), in each case, that are no less favorable in the aggregate to those provided to such Transferred Employees immediately prior to the Closing. The Company shall cause each Transferred Employee to receive credit for such Transferred Employee’s service with Amber GT Parent or an Affiliate prior to the Closing for purposes of eligibility, vesting and determination of the level of benefits under any plan providing 401(k) benefits, severance, vacation or paid time off in which such Transferred Employee participates following the Closing to the same extent such service was recognized by Amber GT Parent or an Affiliate immediately prior to the Closing for the same purpose under the analogous Employee Benefit Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits or compensation with respect to the same period of service.

 

(c)           Each Business Employee who is not actively at work as of the Closing Date due to short or long term disability leave, workers’ compensation, family or medical leave, military leave or another approved leave of absence, which such other approved leave of absence was either commenced prior to the date hereof or is approved by ARYA (such approval not to be unreasonably withheld, conditioned or delayed) (excluding regularly scheduled vacation or paid time off) (each, an “Inactive Business Employee”) shall become and remain an employee of Amber GT Parent or one of its Affiliates until and unless the Inactive Business Employee becomes available for and able to return to active work within the one hundred eighty (180) days following the Closing Date (or such longer period as required by applicable Law), at which time a Business Entity shall offer employment to such Inactive Business Employee (meeting the standards set forth in Section 7.1(a)) effective upon the date such Inactive Business Employee is available for and able to return to active work, and any such Inactive Business Employee who then returns to work and accepts and actually commences employment with the Company or its Affiliate shall be considered a Transferred Employee for purposes of this Agreement; provided that, if any such Inactive Business Employee becomes a Transferred Employee, then the Company shall reimburse Amber GT Parent and its Affiliates for all documented and out-of-pocket costs and amounts paid by Amber GT Parent and its Affiliates in respect of the provision of benefits and compensation in respect of any Inactive Business Employee with respect to the period from the Closing Date until the date that such Inactive Business Employee returns to work.

 

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(d)           Prior to the Closing, the Company and Amber GT Parent shall adopt or cause to be adopted a tax qualified defined contribution 401(k) plan sponsored by the Company (the “Company 401(k) Plan”) and any trust agreements or other plan documents reasonably necessary for the operation of such plan and shall cause trustees to be appointed for such plan. In accordance with applicable Law, the Company and Amber GT Parent shall cause, in the manner described herein, the accounts under the tax qualified 401(k) plan of Amber GT Parent (the “Parent 401(k) Plan”) of each Business Employee who is not an Inactive Business Employee to be transferred to the Company 401(k) Plan prior to or as soon as practicable after the Closing Date. On such date of transfer, (i) Amber GT Parent shall cause the accounts (including any outstanding loan balances) of each such Business Employee and in the Parent 401(k) Plan to be transferred to the Company 401(k) Plan and its related trust, (ii) the Company 401(k) Plan shall assume and be solely responsible for all Liabilities under the Parent 401(k) Plan relating to the accounts that are so transferred as of the time of such transfer, and (iii) the Company shall cause such transferred accounts to be accepted by the Company 401(k) Plan and its related trust and shall cause the Company 401(k) Plan to satisfy all protected benefit requirements under the Code and applicable Law with respect to the transferred accounts. Prior to the Closing, Amber GT Parent shall have made to the Company 401(k) Plan all employer contributions that would otherwise be made but for the transactions contemplated by this Agreement, pro-rated for the portion of the plan year ending as of the Closing and shall have paid all associated costs incurred in connection with such contributions. In determining whether a Business Employee is vested in his or her account under the Company 401(k) Plan, the Company 401(k) Plan shall credit each applicable Business Employee with all the individual’s service credited under the Parent 401(k) Plan. Participants in the Parent 401(k) will not be treated as having experienced a termination of service for purposes of such plans as a result of the transactions contemplated by this agreement.

 

(e)           Except for the Employee Benefit Plans listed on Section 7.1(e) of the Amber Disclosure Schedules, Amber GT Parent and its Affiliates (other than the Business Entities) shall assume and retain sponsorship of, and be solely responsible for all Liabilities relating to or at any time arising under or in connection with or pursuant to any Employee Benefit Plans or any other benefit or compensation plan, program, policy, agreement, contract or arrangement of any kind at any time maintained, sponsored, or contributed to or required to be contributed to by Amber GT Parent or any of its Affiliates (including the Business Entities) or under or with respect to which Amber GT Parent or any of its Affiliates (including the Business Entities) has any Liability. From and after the Closing Date, the Company shall credit each Transferred Employee with the accrued and unused vacation time which the Business Employee had earned prior to the Closing with Amber GT Parent or an Affiliate for one (1) year following the Closing, and permit such vacation time to be used in a manner consistent with the current Amber GT Parent policy.

 

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(f)            Amber GT Parent and its Affiliates (other than the Business Entities) shall be solely responsible for any obligation arising under Section 4980B of the Code with respect to all “M&A qualified beneficiaries” (as defined in Treasury Regulation Section 54.4980B-9) with respect to qualifying events occurring on or prior to the Closing.

 

(g)           Amber GT Parent shall, and shall cause its Affiliates to, use its commercially reasonable efforts to ensure that any foreign national who has work authorization pursuant to a non-immigrant visa status in order to work for the Amber Entities in his or her current position may continue to work in such position as a Transferred Employee on the Closing Date.

 

(h)           During the period prior to the Closing Date, Amber GT Parent shall, and shall cause its Affiliates to, use commercially reasonable efforts to make Business Contractors available to ARYA for the purpose of allowing ARYA to interview each such Business Contractor and determine the nature and extent of each such person’s continuation with ARYA, if any. Amber GT Parent shall, and shall cause its Affiliates to, provide to ARYA contact information for third-party service providers providing contingent personnel to the Business and reasonably cooperate in identifying and transferring such contingent work force to the extent requested by ARYA.

 

(i)            No provision of this Agreement shall (i) create any right in any individual to continued employment by any Party or preclude the ability of any Party to terminate the employment of any employee for any reason, (ii) confer upon any employee any rights or remedies under or by reason of this Agreement or (iii) be treated as an amendment to any particular employee benefit plan of any Party.

 

7.2           No Third-Party Beneficiaries. This Article VII is solely for the benefit of the Parties and is not intended to confer upon any other Persons (including any Business Employee or any other employee, former employee, participant in any Employee Benefit Plan or any spouse, dependent or other beneficiary thereof) any rights or remedies whatsoever, including any third-party beneficiary rights by reason of this Article VII. Nothing in this Article VII, express or implied, shall: (a) limit the ability of Amber GT Parent, the Company, ARYA or any of their respective Subsidiaries or Affiliates from terminating the employment of any employee (including any Business Employee or Business Contractor) prior to or after the Closing; (b) be construed to establish, amend or modify any Employee Benefit Plan or other benefit or compensation plan, program, agreement, policy, contract or arrangement; or (c) limit the ability of Amber GT Parent or any of its Affiliates (including following the Closing any Business Entity) to amend, modify or terminate any benefit or compensation plan, program, agreement, policy, contract or arrangement at any time assumed, established, sponsored or maintained by any of them.

 

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Article VIII
CONDITIONS TO CLOSING

 

8.1           Conditions to the Obligations of the Parties. The obligations of all of the Parties to consummate the Closing are subject to the satisfaction or, if permitted by applicable Law, the waiver of the following conditions:

 

(a)           The waiting period under the HSR Act relating to the transactions contemplated by this Agreement shall have expired, been terminated or obtained (or deemed, by applicable Law, to have been obtained), as applicable.

 

(b)           No Law or Order of an Authority of competent jurisdiction or other legal restraint or prohibition shall be in effect that prohibits or prevents the consummation of the transactions contemplated by this Agreement.

 

(c)           The Required ARYA Shareholder Approval shall have been obtained.

 

(d)           The Registration Statement / Proxy Statement shall have become effective in accordance with the provisions of the Securities Act, no stop order shall have been issued by the SEC and shall remain in effect with respect to the Registration Statement / Proxy Statement, and no proceeding seeking such a stop order shall have been threatened or initiated by the SEC and remain pending.

 

(e)           After giving effect to the transactions contemplated hereby (including the funding of the PIPE Investment) ARYA shall have at least $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act) immediately after the Closing.

 

(f)            ARYA’s initial listing application with Nasdaq in connection with the transactions contemplated by this Agreement shall have been conditionally approved and, immediately following the Closing, ARYA shall satisfy any applicable initial and continuing listing requirements of Nasdaq, and ARYA shall not have received any notice of non-compliance therewith that has not been cured prior to, or would not be cured at or immediately following, the Closing, and the ARYA Class A Shares (including the ARYA Class A Shares to be issued hereunder) shall have been approved for listing on Nasdaq.

 

(g)           The Aggregate Closing Transaction Proceeds shall be equal to or greater than $300,000,000.

 

8.2           Conditions to Obligations of ARYA. The obligation of ARYA to consummate the Closing is subject to the satisfaction, or, if permitted by applicable Law, the waiver, of the following further conditions:

 

(a)           The Amber Entities shall have performed and complied in all material respects with all of their respective covenants and agreements hereunder required to be performed by them at or prior to the Closing.

 

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(b)           (i) All of the representations and warranties of the Amber Entities (other than the Amber Fundamental Representations), in each case disregarding all qualifications and exceptions set forth herein relating to materiality or Amber Material Adverse Effect, shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (provided that to the extent that any such representation and warranty is made as of an earlier date, such representation and warranty shall be true and correct as of such earlier date), except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, an Amber Material Adverse Effect; (ii) the representations and warranties set forth in Sections 4.2(a) through Section 4.2(c) shall be true and correct in all respects (except for de minimis inaccuracies) as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (provided that, to the extent that any such representation and warranty is made as of an earlier date, such representation and warranty shall be true and correct in all respects (except for de minimis inaccuracies) as of such earlier date); (iii) the representations and warranties set forth in Section 4.7(a) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (provided, however, that this clause (iii) shall be deemed to be satisfied if no Amber Material Adverse Effect is continuing); and (iv) all of the Amber Fundamental Representations (other than the representations and warranties in Sections 4.2(a) through Section 4.2(c) and Section 4.7(a)), in each case disregarding all qualifications and exceptions set forth herein relating to materiality or Amber Material Adverse Effect, shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (provided that, to the extent that any such representation and warranty is made as of an earlier date, such representation and warranty shall be true and correct in all material respects as of such earlier date);

 

(c)           Since the date of this Agreement, there shall have been no Amber Material Adverse Effect that is continuing.

 

(d)           At or prior to the Closing, the Amber Entities shall have delivered, or cause to be delivered, the following documents or agreements to ARYA:

 

(i)            a certificate duly executed by an authorized officer of Amber GT Parent to the effect that the conditions set forth in clauses (a) through (c) of this Section 8.2 are satisfied, in a form and substance reasonably satisfactory to ARYA;

 

(ii)           the Transition Services Agreement duly executed by Amber GT Parent, Amber GT and their Affiliates identified therein and the Company and the other Business Entities identified therein;

 

(iii)          the Co-Development and Commercialization Agreement duly executed by Amber GT Parent and its Affiliates identified therein and the Company and the other Business Entities identified therein;

 

(iv)          the Tax Receivables Agreement duly executed by Amber GT and its Affiliates identified therein and the Company;

 

(v)           the A&R Company LLC Agreement duly executed by the Company and Amber GT;

 

(vi)          the Philadelphia Facility Sublease duly executed by Amber GT Parent and the Company; and

 

(vii)         the Director Nomination Agreement duly executed by Amber GT Parent.

 

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(e)           The Pre-Closing Reorganization shall have been consummated in accordance with the applicable terms of this Agreement.

 

8.3           Conditions to Obligations of the Amber Entities. The obligations of the Amber Entities to consummate the Closing are subject to the satisfaction, or, if permitted by applicable Law, the waiver of all the following further conditions:

 

(a)           ARYA shall have performed and complied in all material respects with all of its covenants and agreements hereunder required to be performed by it at or prior to the Closing.

 

(b)           (i) All of the representations and warranties of ARYA (other than the ARYA Fundamental Representations), in each case disregarding all qualifications and exceptions set forth herein relating to materiality or ARYA Material Adverse Effect, shall be true and correct in all respects of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (provided that, to the extent that any such representation and warranty is made as of an earlier date, such representation and warranty shall be true and correct as of such earlier date), except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, an ARYA Material Adverse Effect; (ii) the representations and warranties set forth in Section 5.16 shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date); provided, however, that this clause (ii) shall be deemed to be satisfied if no ARYA Material Adverse Effect is continuing; and (iii) all of the ARYA Fundamental Representations (other than the representations and warranties set forth in Section 5.16), in each case disregarding all qualifications and exceptions set forth herein relating to materiality or ARYA Material Adverse Effect, shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (provided that, to the extent that any such representation and warranty is made as of an earlier date, such representation and warranty shall be true and correct in all material respects as of such earlier date).

 

(c)           At or prior to the Closing, ARYA shall have delivered, or cause to be delivered, the following documents or agreements to the Amber Entities:

 

(i)            a certificate duly executed by an authorized officer of ARYA to the effect that the conditions set forth in clauses (a) through (b) of this Section 8.3 are satisfied, in a form and substance reasonably satisfactory to Amber GT Parent;

 

(ii)           the Transition Services Agreement duly executed by ARYA;

 

(iii)          the Co-Development and Commercialization Agreement duly executed by ARYA;

 

(iv)          the Tax Receivables Agreement duly executed by ARYA;

 

(v)           the A&R Company LLC Agreement duly executed by ARYA; and

 

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(vi)          the Director Nomination Agreement duly executed by ARYA and ARYA Sponsor.

 

8.4           Frustration of Closing Conditions. None of the Amber Entities may rely on the failure of any condition set forth in this Article VIII to be satisfied if such failure was, either individually or in the aggregate, proximately caused by an Amber Entity’s breach of its obligations under this Agreement, including a breach of its obligations to use reasonable best efforts to cause the Closing to occur, as required by Section 6.3, or any other breach of this Agreement. ARYA may not rely on the failure of any condition set forth in this Article VIII to be satisfied if such failure was proximately caused by ARYA’s breach of its obligations under this Agreement, including a breach of its obligations to use reasonable best efforts to cause the Closing to occur, as required by Section 6.3, or any other breach of this Agreement.

 

Article IX
TERMINATION

 

9.1           Termination.

 

(a)           by mutual written consent of ARYA and Amber GT Parent;

 

(b)           by ARYA, if any of the representations or warranties set forth in Article III or Article IV shall not be true and correct or if the any of the Amber Entities has failed to perform or comply with any covenant or agreement on the part of such Amber Entity set forth in this Agreement (including an obligation to consummate the Closing) such that the condition to Closing set forth in either Section 8.2(a) or Section 8.2(b) would not (assuming the Closing occurred as of such date) be satisfied and the breach or breaches causing such representations or warranties not to be true and correct, or the failure or failures to perform such covenants or agreements, as applicable, is (or are) not cured or cannot be cured within the earlier of (i) thirty (30) days after written notice thereof is delivered to Amber GT Parent by ARYA and (ii) the Termination Date; provided, however, that ARYA is not then in breach of this Agreement so as to prevent the condition to Closing set forth in either Section 8.3(a) or Section 8.3(b) from being satisfied (assuming the Closing occurred as of such date) and the Perceptive PIPE Investor is not then in breach of its PIPE Subscription Agreement so as to prevent the condition to the Closing set forth in Section 8.1(g) from being satisfied;

 

(c)           by Amber GT Parent, if any of the representations or warranties set forth in Article V shall not be true and correct or if ARYA has failed to perform or comply with any covenant or agreement set forth in this Agreement (including an obligation to consummate the Closing) such that the condition to Closing set forth in either Section 8.3(a) or Section 8.3(b) would not (assuming the Closing occurred as of such date) be satisfied and the breach or breaches causing such representations or warranties not to be true and correct, or the failure or failures to perform such covenants or agreements, as applicable, is (or are) not cured or cannot be cured within the earlier of (i) thirty (30) days after written notice thereof is delivered to ARYA by Amber GT Parent and (ii) the Termination Date; provided, however, none of the Amber Entities is then in breach of this Agreement so as to prevent the condition to Closing set forth in Section 8.2(a) or Section 8.2(b) from being satisfied (assuming the Closing occurred as of such date);

 

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(d)           by either ARYA or Amber GT Parent, if the Closing shall not have occurred on or prior to March 29, 2022 (the “Termination Date”); provided that (i) the right to terminate this Agreement pursuant to this Section 9.1(d) shall not be available to ARYA if ARYA’s breach of any of its covenants or agreements under this Agreement shall have proximately caused the failure of the Closing to occur on or before the Termination Date, and (ii) the right to terminate this Agreement pursuant to this Section 9.1(d) shall not be available to Amber GT Parent if any Amber Entity’s breach of any of its covenants or agreements under this Agreement shall have, either individually or in the aggregate, proximately caused the failure of the Closing to occur on or before the Termination Date;

 

(e)           by either ARYA or Amber GT Parent, if any Authority shall have issued an Order or taken any other action permanently enjoining, restraining or otherwise prohibiting the transactions contemplated by this Agreement and such Order or other action shall have become final and nonappealable; or

 

(f)            by either ARYA or Amber GT Parent if the ARYA Shareholders Meeting has been held (including any adjournment thereof), has concluded, ARYA’s shareholders have duly voted and the Required ARYA Shareholder Approval was not obtained.

 

9.2           Effect of Termination. In the event of the termination of this Agreement pursuant to Section 9.1 this entire Agreement shall become void (and there shall be no Liability or obligation on the part of the Parties and their respective Representatives) with the exception of (a) Section 6.5(a), this Section 9.2, Article XI and Article I (to the extent related to the foregoing), each of which shall survive such termination and remain valid and binding obligations of the Parties in accordance with their terms and (b) the Confidentiality Agreement, which shall survive such termination and remain valid and binding obligations of the parties thereto in accordance with its respective terms. Notwithstanding the foregoing or anything to the contrary herein, but subject to Section 11.15 the termination of this Agreement pursuant to Section 9.1 shall not affect any Liability on the part of any Party for a willful and material breach of any covenant or agreement set forth in this Agreement prior to such termination or Fraud.

 

Article X
INDEMNIFICATION

 

10.1         Survival. All representations and warranties set forth in this Agreement set forth in this Agreement shall terminate and be of no further force and effect upon the Closing, except for the representations and warranties of the Amber Entities set forth in Section 4.8(a), Section 4.13(b) and Section 4.15(b) (the “Specified Representations”). All covenants and agreements set forth in this Agreement that (a) by their terms apply or contemplate performance on or prior to the Closing shall survive the Closing through and until and including the first (1st) anniversary of the Closing Date and (b) by their terms apply or contemplate performance, in whole or in part, following the Closing shall survive the Closing and remain in full force and effect in accordance with their respective terms as provided in this Agreement, or, if no term as to survival, indefinitely or the longer period of time permitted by applicable Law. The Specified Representations shall survive Closing from and after the Closing until the date that is ninety (90) days following the completion of the final consolidated audited financial statements of ARYA for the fiscal year ended 2022. The obligations to indemnify and hold harmless pursuant to (i) Section 10.2(b) (solely with respect to Pre-Closing Taxes) and (ii) Section 10.3(a)(ii) (solely with respect to Post-Closing Taxes) shall survive for sixty (60) days after the expiration of the applicable statute of limitations. The obligations to indemnify and hold harmless pursuant to Section 10.2 or Section 10.3(a), as applicable, shall survive the consummation of the transactions contemplated hereby for the applicable period set forth in this Section 10.1, and no claim for indemnification pursuant to Section 10.2 or Section 10.3(a), as applicable, may be made after the expiration of the applicable survival period with respect to the representation, warranty, covenant or agreement underlying such indemnification obligation (which, for the avoidance of doubt, in the case of a claim pursuant to Sections 10.2(b) (other than with respect to Pre-Closing Taxes) or Section 10.3(a)(ii) (other than with respect to Post-Closing Taxes), as applicable, shall be indefinitely); provided, however, that if a Notice of Claim is delivered by ARYA (on behalf of itself or another ARYA Indemnified Party) or Amber GT Parent (on behalf of itself or another Amber Indemnified Party), as applicable, prior to the end of the applicable survival period with respect to such indemnification obligation pursuant to Section 10.2 or Section 10.3(a), as applicable, then the claim(s) specified therein shall survive until final resolution thereof in accordance with the terms hereof.

 

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10.2         Indemnification by Amber GT Parent and Amber GT. From and after the Closing, and subject to the applicable limitations set forth in this Article X and elsewhere in this Agreement, Amber GT Parent and Amber GT shall, jointly and severally, indemnify, defend and hold harmless ARYA, its Affiliates (including, for the avoidance of doubt, the Business Entities) and their respective directors, officers, agents, employees, successors and assigns (collectively, the “ARYA Indemnified Parties”) against, and reimburse each ARYA Indemnified Party for, all Losses (in each case, whether arising from a Third-Party Claim or otherwise) that such ARYA Indemnified Party may suffer or incur, or become subject to, arising out of or resulting from:

 

(a)           any breach or failure by Amber GT Parent or Amber GT to perform or comply with any of their respective covenants or agreements set forth in this Agreement;

 

(b)           each Excluded Liability; and

 

(c)           the breach of any Specified Representation; provided that any qualifications as to materiality, “Amber Material Adverse Effect” or other similar materiality qualifications included in any such representation or warranty shall be disregarded for purposes of the determination of whether or not such breach has occurred and for purposes of calculating the amount of any Losses subject to indemnification hereunder.

 

10.3         Indemnification by ARYA.

 

(a)           From and after the Closing, and subject to the applicable limitations set forth in this Article X and elsewhere in this Agreement, ARYA and the Business Entities (excluding, for the avoidance of doubt, the ARYA Sponsor) shall indemnify, defend and hold harmless Amber GT Parent, its Affiliates and their respective directors, officers, agents, employees, successors and assigns (collectively, the “Amber Indemnified Parties”) against, and reimburse any Amber Indemnified Party for, all Losses (in each case, whether arising from a Third-Party Claim or otherwise) that such Amber Indemnified Party may suffer or incur, or become subject to, arising out of or resulting from:

 

(i)            any breach or failure by ARYA to perform or comply with any of its covenants or agreements set forth in this Agreement to the extent such covenants or agreements apply or require performance following the Closing; and

 

(ii)           each Assumed Business Liability.

 

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(b)           Notwithstanding anything in this Agreement to the contrary, ARYA shall not be required to indemnify the Amber Indemnified Parties, and the Amber Indemnified Parties shall not be entitled to recover, in respect of any Losses for which indemnity is claimed under this Section 10.3 to the extent that such Losses (when taken together with any other Losses recovered or recoverable under this Section 10.3) would, in the aggregate, exceed the Pre-Transaction Equity Value.

 

10.4         Indemnification Procedures.

 

(a)           If an ARYA Indemnified Party or an Amber Indemnified Party, as applicable, believes (in good faith) that he, she or it is entitled to indemnification pursuant to Section 10.2 or Section 10.3(a), as applicable (an “Indemnified Party”), then ARYA (on behalf of itself or any other ARYA Indemnified Party) or Amber GT Parent (on behalf of itself or any other Amber Indemnified Party) shall provide a Notice of Claim to the Party obligated to indemnify such Indemnified Party pursuant to this Article X (such notified Party, the “Indemnifying Party”) as soon as reasonably practicable, but in any event no more than forty-five (45) days after the Indemnified Party becomes actually aware of the circumstances indicating that the Indemnified Party has incurred or could reasonably be expected to incur Losses in respect of which it is entitled to indemnification hereunder; provided, however, that the failure to give such Notice of Claim within such forty-five (45) day period shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced thereby. Any such claim for indemnification shall be conclusive against the Indemnifying Party in all respects thirty (30) days after receipt by the Indemnifying Party of such Notice of Claim, unless within such period the Indemnifying Party sends the Indemnified Party a notice disputing such claim (a “Notice of Dispute”). Upon receipt of any Notice of Dispute, ARYA and Amber GT Parent shall use commercially reasonable efforts to cooperate and arrive at a mutually acceptable resolution of such dispute within thirty (30) days of receipt, or ARYA (on behalf of itself or the other ARYA Indemnified Parties if ARYA or any other ARYA Indemnified Parties are the Indemnified Parties) or Amber GT Parent (on behalf of itself or the other Amber Indemnified Parties if Amber GT Parent or any other Amber Indemnified Parties are the Indemnified Parties) receiving the Notice of Dispute from the Indemnifying Party. If a mutually acceptable resolution cannot be reached between ARYA and Amber GT Parent within such thirty (30) day period, then ARYA (on behalf of itself or the other ARYA Indemnified Parties if ARYA or any other ARYA Indemnified Parties are the Indemnified Parties) or Amber GT Parent (on behalf of itself or the other Amber Indemnified Parties if Amber GT Parent or any other Amber Indemnified Parties are the Indemnified Parties) and the Indemnifying Party may thereupon proceed to pursue any and all available remedies at Law. Notwithstanding anything to the contrary in this Article X, ARYA shall act on behalf of all ARYA Indemnified Parties pursuant to this Article X and Amber GT Parent shall act on behalf of all Amber Indemnified Parties pursuant to this Article X (including, in each case and for the avoidance of doubt, in connection with the making or resolution of any claim for indemnification or any Third-Party Claim or any rights or obligations set forth in Section 10.4 with respect thereto).

 

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(b)           Subject to the provisions of Section 10.4(a), if an Action by a Person who is not a Party or an Affiliate thereof (a “Third-Party Claim”) is commenced against any Indemnified Party and the Indemnified Party intends to seek indemnity with respect thereto under this Article X, then ARYA (on behalf of itself or the other ARYA Indemnified Parties if ARYA or any other ARYA Indemnified Parties are the Indemnified Parties) or Amber GT Parent (on behalf of itself or the other Amber Indemnified Parties if Amber GT Parent or any other Amber Indemnified Parties are the Indemnified Parties) shall promptly deliver a Notice of Claim to the Indemnifying Party; provided, however, that the failure to promptly give such Notice of Claim shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced thereby. The Indemnifying Party shall have thirty (30) days after receipt of the Notice of Claim to which such Third-Party Claim relates to assume the conduct and control, through counsel reasonably acceptable to ARYA or Amber GT Parent, as applicable (it being understood and agreed that, if the Indemnifying Party is ARYA, then Kirkland & Ellis LLP shall be deemed to be reasonably acceptable) and at the expense of the Indemnifying Party, of the settlement or defense thereof, and ARYA or Amber GT Parent, as applicable, shall reasonably cooperate with the Indemnifying Party in connection therewith (it being acknowledged and agreed that upon such assumption of conduct and control, the Indemnifying Party, and not the Indemnified Party(ies), shall, subject to clauses (i) through (iv) below, have the exclusive right to settle and defend such Third-Party Claim); provided, however, that the Indemnifying Party may not settle any such Third-Party Claim without the prior written consent of ARYA or Amber GT Parent, as applicable, if any such settlement (i) results in non-monetary damages, (ii) contains an admission of wrongdoing or liability on behalf of any Indemnified Party, (iii) provides that an Indemnified Party is required to (A) take or refrain from taking any material action that would, in the absence of taking or refraining to take such action, adversely affect such Indemnified Party, (B) acknowledge any material rights of the Person making the Third-Party Claim that would adversely affect such Indemnified Party or (C) waive any material rights that such Indemnified Party may have against such Person making the Third-Party Claim or (iv) does not include a legally binding, unconditional and irrevocable full release of the Indemnified Party by the Person bringing such Third-Party Claim from any obligations or liabilities it may have with respect to the Third-Party Claim; provided, further, that the Indemnifying Party shall permit ARYA or Amber GT Parent, as applicable, to participate in such settlement or defense through counsel chosen by ARYA or Amber GT Parent, as applicable (and the fees and expenses of such counsel shall be borne by such Indemnified Party). If the Indemnifying Party does not notify ARYA or Amber GT Parent, as applicable, within thirty (30) days after the receipt of the Indemnified Party’s Notice of Claim hereunder that it elects to undertake the defense thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim and shall not waive any right to indemnity pursuant to this Agreement for any Losses related thereto. ARYA or Amber GT Parent, as applicable, shall in no event settle or compromise (or consent to the settlement or compromise of) any Third-Party Claim without the prior written consent of the Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed), unless it, as a condition precedent to such payment or settlement, waives any right to indemnity by the Indemnifying Party for all Losses related to such Third-Party Claim.

 

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(c)           The Parties shall, and shall cause their pertinent Representatives to, reasonably cooperate in the defense or prosecution of any Third-Party Claim in respect of which indemnity may be sought hereunder, and each of ARYA and Amber GT Parent shall (and shall cause their respective pertinent Representatives to) furnish such books, records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith.

 

(d)           For the avoidance of doubt, this Section 10.4 shall not apply with respect to Tax matters, which shall be governed by Section 6.12(e).

 

10.5         Exclusive Remedy. Subject to the last sentence of this Section 10.5 and Section 6.10, following the Closing, the indemnification provisions of this Article X shall be the sole and exclusive remedies of the ARYA Indemnified Parties, on the one hand, and the Amber Indemnified Parties, on the other hand, for any Losses (including any Losses from claims for breach of contract, warranty, tortious conduct (including negligence) or otherwise and whether predicated on common law, statute, strict liability or otherwise) that any ARYA Indemnified Party or an Amber Indemnified Party may at any time suffer or incur, or become subject to, as a result of, or in connection with the transactions contemplated by this Agreement, including any failure by any Party to perform or comply with any covenant or agreement that, by its terms, was to have been performed, or complied with, under this Agreement. Notwithstanding anything in this Agreement to the contrary, this Section 10.5 shall not (a) affect, restrict or limit the remedies of specific performance and injunctive or other equitable relief pursuant to Section 11.17 or (b) for the avoidance of doubt, affect, restrict or limit any of the rights, covenants, agreements or obligations (including, if applicable, indemnity or similar obligations) of any parties under the Transition Services Agreement, the Co-Development and Commercialization Agreement, the A&R Company LLC Agreement, the Tax Receivables Agreement, the Investors Rights Agreement, or the Philadelphia Facility Sublease or any claims by any party thereto against any other party(ies) thereto, in each case, on the terms and subject to the conditions therein.

 

10.6         Additional Indemnification Provisions.

 

(a)           With respect to each indemnification obligation set forth in this Agreement, all Losses shall be net of any amounts that have been recovered by the Indemnified Party pursuant to any indemnification by, or indemnification agreement with, any third party or any insurance policy or other cash receipts or sources of reimbursement in respect of such Loss (after deducting therefrom (i) the amount of the reasonable, documented and out-of-pocket expenses incurred in procuring such recovery and (ii) in the case of an insurance policy, any actual increases in premiums of such policies as a result of such recovery).

 

(b)           In any case where the Indemnified Party (or their Affiliates) recovers pursuant to any indemnification by, or indemnification agreement with, any third party or any insurance policy or other cash receipts or sources of reimbursement any amount not previously taken into account in respect of a matter for which such Indemnified Party was indemnified pursuant to Section 10.2 or Section 10.3(a), as applicable, such Indemnified Party shall promptly pay over to the Indemnifying Party the amount so recovered or realized (after deducting therefrom the amount of the reasonable, documented and out-of-pocket expenses incurred in procuring such recovery or realization, including, in the case of an insurance policy, any actual increases in premiums as a result of such recovery), but not in excess of the sum of (i) any amount previously so paid pursuant to Section 10.2 or Section 10.3(a), as applicable, to or on behalf of such Indemnified Party in respect of such matter and (ii) any amount expended by Indemnifying Party in pursuing or defending any claim arising out of such matter.

 

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10.7         Limitation of Liability. Notwithstanding anything in this Agreement to the contrary, in no event shall any Party have any liability under this Article X for any punitive damages (other than those actually paid to a third party in connection with any Third-Party Claim).

 

10.8         Manner of Payments.

 

(a)           Any indemnification of an ARYA Indemnified Party pursuant to this Article X shall be effected by wire transfer of immediately available funds from or on behalf of Amber GT Parent to an account designated in writing by ARYA (on behalf of itself or any other ARYA Indemnified Parties) within five (5) Business Days after the final determination thereof.

 

(b)           Any indemnification of an Amber Indemnified Party pursuant to this Article X shall be effected by wire transfer of immediately available funds from or on behalf of ARYA to an account designated in writing by Amber GT Parent (on behalf of itself or any other Amber Indemnified Party) within five (5) Business Days after the final determination thereof.

 

Article XI
MISCELLANEOUS

 

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

 

if to the Company (prior to the Closing), Amber GT or Amber GT Parent, to:

 

c/o 

Amicus Therapeutics, Inc. 

3675 Market Street, 

Philadelphia, PA 19104 

Attn: Chief Legal Officer 

Email: gcoffice@amcisurx.com

 

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

 

Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005

Attn: Graham Robinson
  Katherine D. Ashley
Email: graham.robinson@skadden.com
  katherine.ashley@skadden.com
   
if to ARYA (prior to the Closing), to:
 
c/o ARYA Science Acquisition Corp IV
51 Astor Place, 10th Floor
New York, NY 10003
Attn: Adam Stone
  Michael Altman
  Doug Giordano
  Konstantin Poukalov
Email: adam@perceptivelife.com
  michael@perceptivelife.com
  doug@perceptivelife.com
  konstantin@perceptivelife.com

 

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

 

Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022

Attn: Jonathan L. Davis, P.C.
  Ryan Brissette
Email: jonathan.davis@kirkland.com
  ryan.brissette@kirkland.com

 

if to the Company or ARYA (following the Closing), to:

 

3675 Market Street,
Philadelphia, PA 19104

Attn: John F. Crowley
Email: [to be provided at Closing]

 

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

 

Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022

Attn: Jonathan L. Davis, P.C.
  Ryan Brissette
Email:  jonathan.davis@kirkland.com
  ryan.brissette@kirkland.com

 

11.2         Amendments; Waivers.

 

(a)            This Agreement cannot be amended, supplemented or modified, except by a writing signed by (i) each of ARYA and Amber GT Parent prior to the Closing and (ii) ARYA, ARYA Sponsor and Amber GT Parent following the Closing, and cannot be amended, supplemented or modified orally or by course of conduct. No provision hereof may be waived, except by a writing signed by the Party against whom such waiver is to be enforced, and any such waiver shall apply only in the particular instance in which such waiver shall have been given; provided, however, that, following the Closing, any waiver of any provision applicable to Amber GT Parent or Amber GT shall also require the prior written consent of ARYA Sponsor. This Agreement may not be modified or amended except as provided in the preceding sentences and any purported amendment by any Party or Parties effected in a manner which does not comply with this Section 11.2 shall be void, ab initio.

 

(b)            Neither any failure or delay in exercising any right or remedy hereunder or in requiring satisfaction of any condition herein nor any course of dealing shall constitute a waiver of or prevent any Party from enforcing any right or remedy or from requiring satisfaction of any condition. No notice to or demand on a Party waives or otherwise affects any obligation of that Party or impairs any right of the Party giving such notice or making such demand, including any right to take any action without notice or demand not otherwise required by this Agreement.

 

11.3         Arm’s-Length Bargaining; No Presumption against Drafter. This Agreement has been negotiated at arm’s-length by parties of equal bargaining strength, each represented by counsel in connection with this Agreement and the transactions contemplated hereby. This Agreement creates no fiduciary or other special relationship between the Parties, and no such relationship otherwise exists. No presumption in favor of or against any Party in the construction or interpretation of this Agreement or any provision hereof shall be made based upon which Person might have drafted this Agreement or such provision.

 

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11.4         Publicity.

 

(a)            Subject to Section 11.4(b), Section 6.6, and Section 6.7, none of the Parties or any of their respective Representatives shall issue any press releases or make any public announcements with respect to this Agreement or the transactions contemplated hereby without the prior written consent of, prior to the Closing, Amber GT Parent and ARYA or, following the Closing, Amber GT Parent, ARYA and the ARYA Sponsor; provided, however, that each Party, the ARYA Sponsor and their respective Representatives may issue or make, as applicable, any such press release, public announcement or other communication (i) if such press release, public announcement or other communication is required by applicable Law, in which case (A) prior to the Closing, the disclosing Party or its applicable Representatives shall, unless and to the extent prohibited by such applicable Law, (x) if the disclosing Person is ARYA, the ARYA Sponsor or any of their Representatives, reasonably consult with Amber GT Parent in connection therewith and provide Amber GT Parent with an opportunity to review and comment on such press release, public announcement or communication and shall consider any such comments in good faith, or (y) if the disclosing Party is an Amber Entity or any Representative of an Amber Entity, reasonably consult with ARYA in connection therewith and provide ARYA with an opportunity to review and comment on such press release, public announcement or communication and shall consider any such comments in good faith, or (B) following the Closing, the disclosing Party or its applicable Representatives shall, unless and to the extent prohibited by such applicable Law, (x) if the disclosing Person is the ARYA Sponsor or a Representative of the ARYA Sponsor, reasonably consult with ARYA and Amber GT Parent in connection therewith and provide ARYA and Amber GT Parent with an opportunity to review and comment on such press release, public announcement or communication and consider any such comments in good faith, (y) if the disclosing Person is Amber GT Parent or a Representative of Amber GT Parent, reasonably consult with ARYA and the ARYA Sponsor in connection therewith and provide ARYA and the ARYA Sponsor with an opportunity to review and comment on such press release, public announcement or communication and consider any such comments in good faith, and (z) if the disclosing Person is ARYA or a Representative of ARYA, reasonably consult with Amber GT Parent and the ARYA Sponsor in connection therewith and provide Amber GT Parent and the ARYA Sponsor with an opportunity to review and comment on such press release, public announcement or communication and consider any such comments in good faith, (ii) to the extent such press release, public announcements or other communications contain only information previously disclosed in a press release, public announcement or other communication previously made in accordance with this Section 11.4 and (iii) to governmental Authorities in connection with any Consents required to be made under this Agreement, the Additional Agreements or in connection with the transactions contemplated hereby or thereby. Notwithstanding anything to the contrary in this Section 11.4 or otherwise in this Agreement, the Parties agree that the Perceptive Shareholders and their respective Representatives may provide general information about the subject matter of this Agreement and the transactions contemplated hereby to any direct or indirect former, current or prospective investor or in connection with normal fund raising or related marketing or informational or reporting activities.

 

(b)            The initial press release concerning this Agreement and the transactions contemplated hereby shall be a joint press release in the form agreed by Amber GT Parent and ARYA prior to the execution of this Agreement and such initial press release (the “Signing Press Release”) shall be released as promptly as reasonably practicable after the execution of this Agreement on the day thereof. Promptly after the execution of this Agreement, ARYA shall file a current report on Form 8-K (the “Signing Filing”) with the Signing Press Release and a description of this Agreement as required by, and in compliance with, the securities Laws, which Amber GT Parent shall have the opportunity to review and comment upon prior to filing and ARYA shall consider such comments in good faith. Amber GT Parent, on the one hand, and ARYA, on the other hand, shall mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by either Amber GT Parent or ARYA, as applicable) a press release announcing the consummation of the transactions contemplated by this Agreement (the “Closing Press Release”) prior to the Closing, and, on the Closing Date (or such other date as may be mutually agreed to in writing by Amber GT Parent and ARYA prior to the Closing (such agreement not to be unreasonably withheld, conditioned or delayed by either Amber GT Parent or ARYA, as applicable)), the Parties shall cause the Closing Press Release to be released. Promptly after the Closing (but in any event within four (4) Business Days after the Closing), ARYA shall file a current report on Form 8-K (the “Closing Filing”) with the Closing Press Release and a description of the Closing as required by securities Laws, which Closing Filing shall be mutually agreed upon by Amber GT Parent and ARYA prior to the Closing (such agreement not to be unreasonably withheld, conditioned or delayed by either Amber GT Parent or ARYA, as applicable). In connection with the preparation of each of the Signing Press Release, the Signing Filing, the Closing Press Release and the Closing Filing, each Party, upon written request by any other Party, shall furnish such other Party with all information concerning itself, its directors, officers and equityholders, and such other matters as may be reasonably necessary for such press release or filing.

 

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11.5         Expenses. Unless otherwise specified herein or in the applicable Additional Agreement, each Party shall bear its own costs and expenses incurred in connection with this Agreement, the Additional Agreements and the transactions contemplated hereby and thereby; provided that (a) for the avoidance of doubt, if this Agreement is terminated in accordance with its terms, Amber GT Parent shall pay, or cause to be paid, all Amber Entity Expenses and ARYA shall pay, or cause to be paid, all ARYA Expenses and (b) if the Closing occurs, then (i) the Company shall pay, or cause to be paid, (A) the Unpaid ARYA Transaction Expenses, up to a maximum amount of $25,000,000 and (B) any Unpaid Amber Entity Transaction Expenses in an amount not to exceed the Reimbursement Remainder, and (ii) Amber GT Parent shall pay, or cause to be paid, all Unpaid Amber Entity Expenses in excess of the Reimbursement Remainder.

 

11.6         No Assignment or Delegation. No Party may assign any right or delegate any obligation hereunder, including by merger, consolidation, operation of Law, or otherwise, without the written consent (a) ARYA and Amber GT Parent prior to the Closing and (b) ARYA, Amber GT Parent and the ARYA Sponsor following the Closing. Any purported assignment or delegation that does not comply with the immediately preceding sentence shall be void, in addition to constituting a material breach of this Agreement.

 

11.7         Governing Law. This Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement or any Additional Agreement or any of the transactions contemplated hereby or thereby, or the negotiation, execution or performance of this Agreement or any Additional Agreement or any of the transactions contemplated hereby or thereby (including any claim or cause of action based upon, arising out of related to any representation or warranty made in or in connection with this Agreement or any Additional Agreement or any of the transactions contemplated hereby or any of the transactions contemplated thereby or as inducement to enter into this Agreement or any Additional Agreement or any of the transactions contemplated hereby or thereby), shall be construed and enforced in accordance with and governed by the Laws (both substantive and procedural) of the State of Delaware, without giving effect to the conflict of Laws principles thereof (except that the Laws of the Cayman Islands shall also apply to the Domestication).

 

11.8         Counterparts; Electronic Signatures. This Agreement and each Additional Agreement (including any of the closing deliverables contemplated hereby) may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement or any Ad