EX-2.1

EX-2.1 2 d134673dex21.htm EX-2.1 EX-2.1

Exhibit 2.1

EXECUTION VERSION

AGREEMENT AND PLAN OF MERGER

among

BILL.COM HOLDINGS, INC.,

a Delaware corporation,

DELANO MERGER SUB I, INC.,

a Delaware corporation,

DELANO MERGER SUB II, LLC,

a Delaware limited liability company,

DIVVYPAY, INC.

a Delaware corporation, and

SHAREHOLDER REPRESENTATIVE SERVICES LLC,

as the Agent

Dated May 6, 2021

TABLE OF CONTENTS


		Page

ARTICLE 1 CERTAIN DEFINITIONS			2

ARTICLE 2 THE MERGER			18

2.1	Transactions Occurring on the Closing Date		18
2.2	Effects of the Merger		19
2.3	Treatment of Company Shares and Warrants		19
2.4	Payment and Exchange Procedures		22
2.5	Treatment of Options and Promised Options		23
2.6	Escrow; Agent Expense Fund		24
2.7	Working Capital Amount Adjustment		25
2.8	Tax Consequences		26
2.9	Certain Taxes		26
2.10	Withholding Rights		26
2.11	Further Actions		26

ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY			27

3.1	Organization, Standing, Power and Subsidiaries		27
3.2	Authority and Enforceability		27
3.3	Non-Contravention		28
3.4	Capital Structure		28
3.5	Financial Statements; No Undisclosed Liabilities		30
3.6	Absence of Certain Changes or Events		31
3.7	Actions		32
3.8	Restrictions on Business Activities		32
3.9	Compliance with Laws; Governmental Permits		32
3.10	Title to, Condition and Sufficiency of Assets		33
3.11	Intellectual Property		33
3.12	Taxes		43
3.13	Employee Benefit Plans and Employee Matters		46
3.14	Interested-Party Transactions		50
3.15	Insurance		51
3.16	Books and Records		51
3.17	Material Contracts		51
3.18	Brokers		53
3.19	Anti-Corruption Law, Sanctions and Anti-Money Laundering Compliance		53
3.20	Environmental, Health and Safety Matters		54
3.21	Export Control Laws		54
3.22	Customers and Suppliers		55
3.23	Filings and Notices		55
3.24	Exclusivity of Representations and Warranties		55

ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PARENT			55

4.1	Organization, Standing		56
4.2	Authority and Enforceability; Non-Contravention		56
4.3	Capital Structure		57
4.4	Compliance with Laws		57


4.5	Material Contracts	58
4.6	Sufficient Funds	58
4.7	Issuance of Parent Stock	58
4.8	No Prior Merger Sub Operations	58
4.9	SEC Reports	58
4.10	S-3 Registration	59
4.11	Acquisition for Investment	59
4.12	Ownership of Shares	59
4.13	Brokers	59
4.14	Tax Matters	59
4.15	Exclusivity of Representations and Warranties	60

ARTICLE 5 COVENANTS		60

5.1	Conduct of the Company	60
5.2	Conduct of Parent	63
5.3	Confidentiality; Public Announcements	63
5.4	No Solicitation	64
5.5	Reasonable Best Efforts	65
5.6	Corporate Matters	66
5.7	Notice of Changes	67
5.8	Litigation	67
5.9	Access to Information	67
5.10	Employees	68
5.11	Financial Certificate and Spreadsheet	70
5.12	Necessary Consents	70
5.13	Director and Officer Indemnification	70
5.14	Tax Matters	71
5.15	Financial Statements	73
5.16	Form S-3	74

ARTICLE 6 CONDITIONS PRECEDENT		74

6.1	Conditions Precedent to Obligations of the Company, Parent and Merger Subs to the Closing	74
6.2	Conditions Precedent to Obligations of Parent and Merger Subs to the Closing	74
6.3	Conditions Precedent to Obligations of the Company Prior to the Closing	77

ARTICLE 7 TERMINATION		78

7.1	Termination	78
7.2	Effect of Termination	78

ARTICLE 8 ESCROW FUND AND INDEMNIFICATION		79

8.1	Escrow Fund	79
8.2	Indemnification	79
8.3	Limitations	80
8.4	Survival Periods	82
8.5	Claims	83
8.6	Resolution of Objections to Claims	83
8.7	Agent	84
8.8	Third-Party Claims	87
8.9	Treatment of Indemnification Payments	88



ARTICLE 9 MISCELLANEOUS		88

9.1	Expenses	88
9.2	Notices	88
9.3	Severability	89
9.4	Entire Agreement	89
9.5	Assignment; Parties in Interest	89
9.6	Governing Law; Jurisdiction; Waiver of Jury Trial	90
9.7	Interpretation	90
9.8	Counterparts	91
9.9	Remedies	91
9.10	Amendment	91
9.11	Waiver	91
9.12	Legal Representation	92


Exhibits

Exhibit A-1	-	Form of Joinder
Exhibit A-2	-	Form of Significant Investor Joinder
Exhibit B	-	Form of Written Consent
Exhibit C	-	Form of Charter Amendment
Exhibit D-1	-	Form of First Certificate
Exhibit D-2	-	Form of Second Certificate
Exhibit E	-	Form of Warrant Surrender Agreement
Exhibit F	-	Form of Cash-Out Option Waiver
Exhibit G	-	Form of Promised Option Waiver
Exhibit H	-	Form of Parachute Payment Waiver
Exhibit I	-	Form of Financial Certificate
Exhibit J-1	-	FIRPTA Notice
Exhibit J-2	-	FIRPTA Notification Letter
Exhibit K	-	Form of Escrow Agreement

Annexes

Annex A-1	-	Key Employees
Annex A-2	-	Restrictive Covenant Agreement Signatories
Annex B	-	Holdback Employees
Annex C	-	Consenting Stockholders
Annex D	-	Significant Investors
Annex E	-	Accounting Principles
Annex F	-	Cash
Annex G	-	Knowledge Persons
Annex H	-	Permitted Liens
Annex I	-	Working Capital

Schedules

Schedule 1.1	-	Permitted Debt
Schedule 5.1(c)	-	Pre-Closing Steps
Schedule 6.1(a)(ii)	-	Regulatory Filings
Schedule 8.2(a)(vi)	-	Indemnifiable Taxes
Schedule 8.2(a)(ix)	-	Specified Matters
Schedule 8.8(b)	-	Specified Third-Party Claims

Disclosure Schedule

iii

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of May 6, 2021 (the “Agreement Date”), among Bill.com Holdings, Inc., a Delaware corporation (“Parent”), Delano Merger Sub I, Inc., a Delaware corporation and direct, wholly owned subsidiary of Parent (“Merger Sub I”), Delano Merger Sub II, LLC, a Delaware limited liability company and direct, wholly owned subsidiary of Parent (“Merger Sub II” and together with Merger Sub I, the “Merger Subs”), DivvyPay, Inc., a Delaware corporation (the “Company”), and Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as the representative, agent and attorney-in-fact of the Equityholders (the “Agent”). Capitalized terms used herein are defined in Article 1.

RECITALS

Parent, Merger Sub I and the Company intend to effect a merger of Merger Sub I with and into the Company, pursuant to which the Company would survive and become a wholly owned subsidiary of Parent (the “First Merger”), and immediately thereafter, as part of the same overall integrated transaction, the surviving entity of the First Merger would merge with and into Merger Sub II, pursuant to which Merger Sub II would survive and remain a direct wholly owned subsidiary of Parent (the “Second Merger” and, collectively or in seriatim with the First Merger, as appropriate, the “Merger”) in accordance with this Agreement, the DGCL and the DLLCA.

The board of directors of the Company (the “Board”) has carefully considered the terms of this Agreement and has unanimously (i) determined that this Agreement and the Merger and the transactions contemplated by this Agreement and the documents referenced herein (collectively, the “Transactions”), upon the terms and subject to the conditions set forth herein, are advisable, fair to and in the best interests of the Company and the Stockholders, (ii) approved this Agreement in accordance with the DGCL and (iii) directed that the Company submit this Agreement to the Stockholders for adoption and recommended that all Stockholders adopt this Agreement and approve the Merger. The board of directors of Parent has also carefully considered the terms of this Agreement and has unanimously (i) determined that this Agreement and the Merger and the other Transactions, including the issuance of Parent Stock hereunder, upon the terms and subject to the conditions set forth herein, are advisable, fair to and in the best interests of Parent and its Stockholders and (ii) approved and declared advisable the execution, delivery, and performance of this Agreement and the consummation of the Transactions, including the issuance of the Share Consideration.

Parent, the Merger Subs and the Company intend that the First Merger and the Second Merger, taken together, qualify as a tax-free “reorganization” within the meaning of Section 368(a) of the Code and this Agreement shall constitute, and is hereby adopted as, a “plan of reorganization” within the meaning of Treasury Regulation Section 1.368-2(g).

Concurrently with the execution of this Agreement, and as a condition and inducement to Parent’s and the Merger Subs’ willingness to enter into this Agreement, (i) the employees set forth on Annex A-1 (the “Key Employees”) have executed an offer letter and confidentiality and invention assignment Agreement with Parent, (ii) the employees set forth on Annex A-2 have executed a restrictive covenant agreement, and (iii) the employees set forth on Annex B (the “Holdback Employees”) have executed a Holdback Agreement (the “Holdback Agreement”) (collectively, the “Key Employee Documents”).

Concurrently with the execution of this Agreement, and as a condition and inducement to Parent’s and the Merger Subs’ willingness to enter into this Agreement, each of the Stockholders set forth on Annex C (each, a “Consenting Stockholder”) has delivered joinder agreements in the form attached hereto as Exhibit A-1 (each, a “Joinder”) or, if such Stockholder is a Significant Investor, in the form attached hereto as Exhibit A-2 (each, a “Significant Investor Joinder”), and immediately after the execution of this Agreement will deliver an action by written consent in the form attached hereto as Exhibit B (a “Written Consent”).

NOW, THEREFORE, the parties hereto agree as follows:

ARTICLE 1

CERTAIN DEFINITIONS

“Accounting Principles” means GAAP, subject to the exceptions set forth on Annex E.

“Acquired Companies” means the Company and its Subsidiaries collectively, and “Acquired Company” means any of the Acquired Companies.

“Acquisition Proposal” means any expression of interest, inquiry, offer, proposal, plan, agreement, understanding or arrangement involving (a) a merger, consolidation, business combination or similar transaction involving any Acquired Company, (b) the sale, lease, license or other disposition (including by way of merger, consolidation, asset sale, share or equity sale, share or equity exchange, license or any similar transaction, in one or a series of related transactions) of all or a material portion of the assets of any Acquired Company, (c) any joint venture or other strategic investment in or involving any Acquired Company, including any third party financing, investment in or recapitalization of any Acquired Company or (d) any other transaction the consummation of which would reasonably be expected to impede, interfere with, prevent or materially delay the Transactions.

“Action” means any private, governmental, or administrative action, inquiry, claim, counterclaim, proceeding, suit, hearing, audit, investigation or litigation, in each case whether civil, criminal, administrative, judicial or investigative, or any appeal therefrom.

“Affiliate” means, with respect to a Person, any other Person that, directly or indirectly, controls or is controlled by or is under common control with the first Person. For purposes of the immediately preceding sentence, the term “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by Contract or otherwise.

“Agent Expense Fund” means $200,000; provided that if the Bowers Matter has not been settled or resolved prior to Closing, the Company may elect to increase the Agent Expense Fund by an additional $1,400,000.

“Aggregate Exercise Price” means, as of immediately prior to the Effective Time, the sum of the exercise prices of all outstanding Qualifying Options and Warrants, and the Deemed Exercise Prices of all Promised Options, other than the Permitted Issuances.

“Aggregate Junior Liquidation Preference” means, as of immediately prior to the Effective Time, the sum of (a) the aggregate number of Series Seed 1 Shares multiplied by the Series Seed 1 Liquidation Preference, (b) the aggregate number of Series Seed 2 Shares multiplied by the Series Seed 2 Liquidation

Preference, (c) the aggregate number of Series A Shares multiplied by the Series A Liquidation Preference, (d) the aggregate number of Series B Shares multiplied by the Series B Liquidation Preference, and (e) the aggregate number of Series C Shares multiplied by the Series C Liquidation Preference.

“Aggregate Series D Liquidation Preference” means, as of immediately prior to the Effective Time, the aggregate number of Series D Shares multiplied by the Series D Liquidation Preference; provided that if the Pro Rata Consideration exceeds the Series D Liquidation Preference, then the Aggregate Series D Liquidation Preference will be zero.

“AML Laws” mean all Applicable Laws, Orders, executive orders, ordinances, directives, regulations, statutes, case law or treaties concerning or related to terrorism financing or money laundering, including the Bank Secrecy Act, 31 U.S.C. §§ 5311 et seq., as amended by the USA PATRIOT Act, and its implementing regulations, the Money Laundering Control Act, 18 U.S.C. §§ 1956 and 1957, and any related or similar rules, regulations or guidelines, which in each case are issued, administered or enforced by any relevant Governmental Body.

“Anti-Corruption Law” means any Applicable Law relating to anti-bribery or anti-corruption (governmental or commercial), including the Foreign Corrupt Practices Act of 1977, as amended, and any other Applicable Law that prohibits the corrupt payment, offer, promise or authorization of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any Person, including any Government Official.

“Applicable Law” means, with respect to any Person, any federal, state, foreign, local, municipal or other law, statute, constitution, legislation, principle of common law, resolution, ordinance, code, edict, decree, rule, directive, Permit, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Body and any Orders, in each case, applicable to such Person or to any of its assets, properties or businesses, including any applicable AML Laws, Anti-Corruption Law, Licensing Laws, OFAC Laws, Export Laws, unclaimed property laws, data privacy laws and data security laws.

“Business” means the business of the Acquired Companies as currently conducted.

“Business Day” means any day, other than a Saturday, a Sunday, or any other day on which commercial banks in San Francisco, CA or Salt Lake City, UT are authorized or required by Applicable Law to be closed.

“CARES Act” means the Coronavirus Aid, Relief, and Economic Security Act.

“Cash” means all of the items listed on Annex F, calculated in accordance with Accounting Principles.

“Cash Consideration” means $625,000,000, plus (a) the Aggregate Exercise Price, plus (b) the Closing Cash Surplus (if any), plus (c) the Working Capital Adjustment, less (d) the Closing Cash Deficit (if any), less (e) all unpaid Debt as of the Effective Time, less (f) all unpaid Transaction Expenses as of the Effective Time, less (g) the Cash-Out Amount.

“Cash Consideration Percentage” means a percentage equal to the quotient of the Cash Consideration divided by the Total Consideration.

“Cash-Out Amount” means the aggregate amount of cash that would have been payable to holders of Vested Non-Continuing Employee Options and Cash-Out Options pursuant to this Agreement if (i)

“Qualifying Options” was defined as (x) all Continuing Employee Options, (y) all Vested Non-Continuing Employee Options and (z) all Cash-Out Options, in each case as of immediately prior to the Effective Time and (ii) “Cash Consideration” was defined as $625,000,000, plus (a) the Aggregate Exercise Price, plus (b) the Closing Cash Surplus (if any), plus (c) the Working Capital Adjustment, less (d) the Closing Cash Deficit (if any), less (e) all unpaid Debt as of the Effective Time, less (f) all unpaid Transaction Expenses as of the Effective Time.

“Cash-Out Options” means any option to purchase Company Common Stock or portion thereof that is outstanding as of immediately prior to the Effective Time, whether vested or unvested, that was granted prior to May 1, 2019 and is held by a Continuing Employee.

“Certificate” means a certificate or instrument that immediately prior to the Effective Time represented issued and outstanding shares of Company Capital Stock.

“Claim” means any claim, demand, complaint, suit, proceeding, arbitration, audit, hearing or investigation (whether civil, criminal, or administrative).

“Closing Amount” means the (a) Total Consideration, less (b) the Aggregate Junior Liquidation Preference, less (c) the Aggregate Series D Liquidation Preference.

“Closing Cash Balance” means the Cash balance of the Acquired Companies (on a consolidated basis) as of immediately prior to the Effective Time.

“Closing Cash Deficit” means the amount, if any, by which the Closing Cash Balance is less than the Closing Cash Minimum Amount.

“Closing Cash Minimum Amount” means $125,000,000; provided that if the Closing does not take place on or before July 1, 2021, then the Closing Cash Minimum Amount shall be reduced each month thereafter by an amount equal to the product of (x) $3,500,000 and (y) a fraction, the numerator of which is the number of days actually elapsed in such month prior to the Closing Date and the denominator of which is the total number of days in such month (rounded to the nearest dollar); provided that the Closing Cash Minimum Amount shall not be reduced by more than $3,500,000 per calendar month. By way of illustration, this means that if Closing takes place on July 5, 2021, the Closing Cash Minimum Amount shall be $124,548,387, which is $125,000,000 less an amount equal to the product of (x) $3,500,000 and (y) 4 (the number of days elapsed in July prior to July 5) / 31 (the number of days in July); if Closing takes place on August 1, 2021, the Closing Cash Minimum Amount shall be $121,500,000; and if Closing takes place on September 1, 2021, the Closing Cash Minimum Amount shall be $118,000,000.

“Closing Cash Surplus” means the amount, if any, by which the Closing Cash Balance exceeds the Closing Cash Minimum Amount.

“Closing Date” means the date on which the Closing occurs.

“Closing Working Capital Adjustment” means the calculation of the Working Capital Adjustment set forth on the Company Closing Financial Certificate.

“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.

“Code” means the Internal Revenue Code of 1986, as amended, and all rules and regulations promulgated thereunder, as in effect from time to time.

“Common Shares” means shares of Company Common Stock issued and outstanding immediately prior to the Effective Time.

“Company Capital Stock” means the Company Common Stock and the Company Preferred Stock.

“Company Common Stock” means the Common Stock, $0.0001 par value per share, of the Company.

“Company Employee Plans” means (a) all “employee benefit plans” within the meaning of Section 3(3) of ERISA, (b) each Loan to an employee, (c) all stock option, stock purchase, phantom stock, stock appreciation right, restricted stock unit, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Section 125 of the Code), dependent care (Section 129 of the Code), life insurance or accident insurance plans, programs or arrangements, (d) all bonus, pension, profit sharing, savings, severance, retirement, supplemental retirement, deferred compensation or incentive plans (including cash incentive plans), programs or arrangements, (e) all other fringe or employee benefit plans, programs or arrangements and (f) all employment, individual consulting, retention, change of control or executive compensation or severance agreements; in each case, written or otherwise, formal or informal, as to which any unsatisfied obligations or any ERISA Affiliate of the Company remain for the benefit of, or relating to, any present or former employee, consultant or non-employee director of the Company or any dependent thereof.

“Company Fundamental Representations” means the representations and warranties made by the Company in Section 3.1(a)-(b) (Organization, Standing, Power and Subsidiaries), Section 3.2 (Authority and Enforceability), Section 3.4 (Capital Structure), and Section 3.18 (Brokers).

“Company Material Adverse Effect” means (a) any change, event, condition, fact, violation, inaccuracy, circumstance or effect (each, an “Effect”) that, individually or taken together with all other Effects, and regardless of whether such Effect constitutes a breach of any representations or warranties made by, or a breach of the covenants, agreements, or obligations of, the Company, is, or would reasonably likely to be or become, a material adverse effect of significant duration on the business (as currently conducted by the Company), operations, or financial condition of the Company and its Subsidiaries, taken together; except that none of the following Effects (by themselves or when aggregated with any other facts, circumstances, changes or Effects) will be taken into account in determining whether there has been a Company Material Adverse Effect: (i) changes in general economic conditions in the United States or any other jurisdiction in which the Company operates, (ii) changes affecting the industry generally in which the Company operates, (iii) any national or international political or social conditions, including the outbreak or escalation of war, hostilities, or terrorist activities, either in the United States or any other jurisdiction in which the Company operates, (iv) earthquakes, hurricanes, tornadoes, floods, epidemics/pandemics or other natural disasters, including any worsening of any Effects resulting from COVID-19, (v) changes in Applicable Law or GAAP after the Agreement Date or any action required to be taken under any Applicable Law, Order or existing Contract by which the Company or its Affiliates (or any of their respective assets or properties) is bound, in each case of clauses (i) through (v), except to the extent such changes disproportionately affect the Company as compared to other Persons or businesses that operate in the industry in which the Company operates, (vi) any Effect resulting from any breach of this Agreement by Parent or Merger Subs, (vii) any change in the cost, availability or other terms of any financing necessary for Parent to consummate the Transactions, (viii) any failure by the Company to meet any internal or published projections, forecasts, revenue or earnings predictions, or other financial metrics for any period ending on or after the date hereof (it being understood that the underlying cause of failure may be taken into account if otherwise eligible pursuant to this proviso), (ix) the negotiation, execution or announcement of this Agreement (including by reason of the identity of Parent or any communication by Parent or any of its Affiliates regarding its plans or intentions with respect to the business of the Company, and including

the impact thereof on relationships with customers, suppliers, distributors, partners or employees or others having relationships with the Company), or (x) the Company’s failure to take any action prohibited by Section 5.1 or Section 5.2 (but solely to the extent the Company seeks Parent’s consent to take such action in writing, with reasonable advance notice and with reasonable accompanying information under the circumstances, and Parent withholds such consent), or (b) any effect or circumstance that would materially impair or materially delay the Company’s ability to perform its obligations under this Agreement or the other Transaction Documents.

“Company Preferred Stock” means the Series Seed 1 Stock, the Series Seed 2 Stock, the Series A Stock, the Series B Stock, the Series C Stock and the Series D Stock.

“Continuing Employees” means the employees or independent contractors of any Acquired Company who are offered continued employment by Parent or one of its Subsidiaries, who execute an offer letter and a confidential information and assignment agreement and who accept employment to remain employees of Parent or one of its Subsidiaries or become employees of Parent or one of its Subsidiaries as of immediately after the Effective Time.

“Contract” means any legally binding contract, agreement, permission, consent, lease, license, release, covenant not to sue, commitment, arrangement, or understanding, oral or written.

“Data Processor” means any Person who Processes data on any Acquired Company’s behalf.

“Debt” means, with respect to the Acquired Companies, the aggregate of the following: (a) any Liability of such Person (i) for borrowed money, (ii) under any reimbursement obligation relating to a letter of credit, bankers’ acceptance, note purchase facility, credit card line or the like, (iii) evidenced by a bond, note, debenture or similar instrument (including a purchase money obligation), (iv) under any capitalized or synthetic leases, (v) under any financial hedging, swap or similar arrangements, (vi) unpaid Pre-Closing Taxes of the Acquired Companies, whether or not they are then due and payable, but excluding any contingent Liabilities for Taxes other than those for which an Acquired Company has received a notice or claim for such Taxes from a Tax Authority and (vii) all obligations secured by any Lien existing on property owned by any Acquired Company, whether or not indebtedness secured thereby will have been assumed, and (b) any Liability described in clause (a) of other Persons to the extent guaranteed by any Acquired Company, or recourse to any Acquired Company or any of its assets, or that is otherwise the legal Liability of any Acquired Company. Debt includes (without duplication) (A) any and all, success fees, prepayment premiums, make whole premiums or penalties and fees or expenses actually incurred (including attorneys’ fees) associated with the prepayment of any Debt and (B) any and all amounts of the nature described in clause (a) owed by any Acquired Company to any of its Affiliates including any of its Stockholders. Debt excludes (w) any Liability set forth on Schedule 1.1 that would otherwise be Debt hereunder (collectively, the “Permitted Debt”), (x) Transaction Expenses, (y) trade payables and other similar liabilities incurred in the ordinary course of business consistent with past practice and (z) any amounts included in the calculation of Cash (it being understood and agreed that any Liability of an Acquired Company that would constitute Debt but for this clause (z) will be deemed to constitute Debt for purposes of Section 3.5(e), Section 3.17(a)(xv) and Section 5.1(b)(xii)).

“DGCL” means the General Corporation Law of the State of Delaware.

“Dissenting Shares” means any Company Shares in respect of which appraisal rights will have been perfected in accordance with the DGCL, and not waived, withdrawn or lost, in connection with the Merger.

“DLLCA” means the Limited Liability Company Act of the State of Delaware.

“Effective Time Options” means any option to purchase Company Common Stock or portion thereof that is outstanding as of immediately prior to the Effective Time, whether vested or unvested, that is not a Cash-Out Option.

“Environmental, Health and Safety Requirements” means all Applicable Law concerning or relating to worker/occupational health and safety, or pollution or protection of the environment, including those relating to the presence, use, manufacturing, refining, production, generation, handling, transportation, treatment, recycling, transfer, storage, disposal, distribution, importing, labeling, testing, processing, discharge, release, threatened release, control or other action or failure to act involving cleanup of any Hazardous Materials, each as amended and as now in effect.

“Equityholders” means, collectively, the Stockholders and Warrantholders.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“ERISA Affiliate” means the Company and any trade or business (whether or not incorporated) that is treated as a single employer with the Company within the meaning of Section 414(b), (c), (m) or (o) of the Code.

“Escrow Amount” means $125,000,000.

“Escrow Fund” means the Escrowed Cash and the Escrowed Stock.

“Escrowed Cash” means an amount in cash equal to the Escrow Amount multiplied by the Cash Consideration Percentage.

“Escrowed Stock” means a number of Parent Shares equal to the quotient of (a) the product of the Escrow Amount multiplied by the Share Consideration Percentage, divided by (b) the Parent Stock Price, rounded down to the nearest whole share, together with any non-Taxable stock dividends declared and paid in respect of such shares.

“Exchange Ratio” means the quotient obtained by dividing (a) the Per Share Participating Consideration divided by (b) the Parent Stock Price.

“Financial Certificate” means a certificate executed by the Chief Executive Officer and Chief Financial Officer of the Company and dated as of the Closing Date, certifying: (a) the calculation of the Closing Cash Balance, (b) the calculation of the Working Capital Amount and Working Capital Adjustment (including (i) the Company’s balance sheet as of open of business on the Closing Date prepared on a consistent basis with the Balance Sheet, (ii) an itemized list of each element of the Working Capital Assets and (iii) an itemized list of each element of the Working Capital Liabilities), (c) an itemized list of all outstanding Debt as of open of business on the Closing Date with a description of the nature of such Debt and the Person(s) to whom such Debt is owed, (d) an itemized list of any Transaction Expenses that are unpaid as of open of business on the Closing Date and the Person(s) to whom such Transaction Expenses are owed and (e) based on the foregoing certifications, calculations of the Total Consideration, Cash Consideration, Exchange Ratio, the Closing Amount, the Aggregate Junior Liquidation Preference, the Aggregate Series D Liquidation Preference, the Participating Share Number and the Per Share Closing Consideration (including each component of such calculations).

“Fully Diluted Stock Number” means the sum of all (a) issued and outstanding shares of Company Capital Stock, (b) Common Shares issuable upon the exercise of all Qualifying Options and Warrants and (c) Common Shares that would be issuable upon the exercise of any Promised Options, other than the Permitted Issuances, assuming all such Promised Options have been granted, in each case as of immediately prior to the Effective Time.

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

“Government Official” means (a) any official, employee, agent or Representative of, or any Person acting in an official capacity for or on behalf of, any Governmental Body, (b) any political party, political party official or candidate for political office, (c) any official, employee, agent or Representative of, or any Person acting in an official capacity for or on behalf of, a company, business, enterprise or other entity owned, in whole or in part, or controlled by any Governmental Body or (d) any official, employee, agent or Representative of, or any Person acting in an official capacity for or on behalf of, a public international organization.

“Governmental Body” means any government or any agency, bureau, board, commission, court, department, official, political subdivision, tribunal, or other instrumentality of any government, whether supranational, federal, state or local, domestic or foreign.

“Hazardous Materials” means any petroleum products or byproducts, radioactive or explosive materials, asbestos or asbestos-containing material, radon gas, urea formaldehyde, toxic mold or fungi, or polychlorinated biphenyls, pesticides, pollutants, contaminants, noise or radiation, and any other chemicals, substances, waste, or materials that are considered or deemed to be, or regulated as, hazardous, toxic, infectious, or dangerous under applicable Environmental, Health and Safety Requirements or for which Liability or standards of conduct may be imposed pursuant to any Environmental, Health and Safety Requirements.

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

“IRS” means the United States Internal Revenue Service.

“knowledge of the Company” means the actual knowledge of any person listed on Annex G (and shall in no event encompass constructive, imputed or similar concepts of knowledge); provided that actual knowledge shall include knowledge that would reasonably be expected to be obtained through reasonable inquiry.

“Liability” means any and all debts, liabilities, Taxes, penalties, expenses, and obligations of any nature whatsoever, whether accrued or fixed, absolute or contingent, mature or unmatured or determined or indeterminable, including those arising under Applicable Law and those arising under any Contract.

“Licensing Laws” means all Applicable Laws that may be enforced by any Governmental Body relating to licensing or registration in connection with lending, loan brokering or servicing, debt collections or the marketing, promotion, or issuance of credit cards, virtual cards, checks, drafts, money orders, travelers checks or other payment instruments, whether or not negotiable, the transmission of funds by electronic or other means, the sale or issuance of stored value cards or devices, and/or Money Transmitter Licenses.

“Lien” means liens, mortgages, pledges, deeds of trust, security interests, charges, easements, and other adverse Claims of any kind.

“Loan” or “Loans” means any Debt that is or ever has been extended, sold, originated or transferred by the Company to third parties, regardless of any subsequent disposition by such third parties of such Debt.

“Made Available” means, with respect to any information, document or other material, that such information, document or material was made available for review in the virtual data room established by the Company in connection with this Agreement as of 11:59 pm, Pacific time, on May 5, 2021.

“Money Transmitter License” shall mean any license, registration or written approval required to be obtained from any Governmental Body in order for an entity to provide money transmission services and payment instruments.

“OFAC Laws” means all Applicable Laws (a) administered and enforced in whole or in part by the Office of Foreign Assets Control of the United States Department of the Treasury or (b) otherwise relating to the enforcement of economic and trade sanctions based on United States foreign policy and national security goals, including, but not limited to, the following (together with their implementing regulations, in each case, as amended from time to time): the International Security and Development Cooperation Act (ISDCA) (22 U.S.C. §23499aa-9 et seq.); the Trading with the Enemy Act (TWEA) (50 U.S.C. §5 et seq.); the International Emergency Economic Powers Act (50 U.S.C. §1701 et seq.); the Antiterrorism and Effective Death Penalty Act (8 U.S.C. §1189 et seq.); and the United Nations Participation Act (22 U.S.C. §287c et seq.).

“Option” means the Effective Time Options and the Cash-Out Options

“Option Plan” means the Company’s 2016 Equity Incentive Plan.

“Optionholders” means the holders of Options.

“Order” means any judgment, writ, decree, stipulation, determination, decision, award, rule, preliminary or permanent injunction, temporary restraining order, or other order.

“Parent Entity” means any of Parent, any Affiliate of Parent that is not an individual (including the Surviving Company), any successor of Parent, or another Person designated by one of the foregoing.

“Parent Equity Plans” means, collectively, Parent’s 2019 Equity Incentive Plan, 2016 Equity Incentive Plan and 2006 Equity Incentive Plan.

“Parent Fundamental Representations” means the representations and warranties made by the Parent and Merger Subs in Section 4.1 (Organization, Standing), Section 4.2(a)-(b) (Authority and Enforceability; Non-Contravention), Section 4.3 (Capital Structure) and Section 4.13 (Brokers).

“Parent Material Adverse Effect” means (a) any Effect that, individually or taken together with all other Effects, and regardless of whether such Effect constitutes a breach of any representations or warranties made by, or a breach of the covenants, agreements, or obligations of, Parent, is, or would reasonably likely to be or become, a material adverse effect of significant duration on the business (as currently conducted by Parent), operations, or financial condition of Parent and its Subsidiaries, taken together; except that none of the following Effects (by themselves or when aggregated with any other facts, circumstances, changes or Effects) will be taken into account in determining whether there has been a Parent Material Adverse Effect: (i) changes in general economic conditions in the United States or any other jurisdiction in which the Company operates, (ii) changes affecting the industry generally in which Parent operates, (iii) any national or international political or social conditions, including the outbreak or escalation of war, hostilities, or terrorist activities, either in the United States or any other jurisdiction in which Parent operates, (iv) earthquakes, hurricanes, tornadoes, floods, epidemics/pandemics or other natural disasters, including any worsening of any Effects resulting from COVID-19, (v) changes in Applicable Law or GAAP after the Agreement Date or any action required to be taken under any Applicable Law, Order or existing

Contract by which Parent or its Affiliates (or any of their respective assets or properties) is bound, in each case of clauses (i) through (v), except to the extent such changes disproportionately affect Parent as compared to other Persons or businesses that operate in the industry in which Parent operates, (vi) any Effect resulting from any breach of this Agreement by the Company, (vii) any failure by Parent to meet any internal or published projections, forecasts, revenue or earnings predictions, or other financial metrics for any period ending on or after the date hereof (it being understood that the underlying cause of failure may be taken into account if otherwise eligible pursuant to this proviso), or (viii) the negotiation, execution or announcement of this Agreement (including by reason of the identity of Parent or any communication by Parent or any of its Affiliates regarding its plans or intentions with respect to the business of the Company, and including the impact thereof on relationships with customers, suppliers, distributors, partners or employees or others having relationships with the Company) or (b) any effect or circumstance that would materially impair or materially delay Parent, Merger Sub I or Merger Sub II’s ability to perform its obligations under this Agreement or the other Transaction Documents.

“Parent Shares” means shares of Parent Stock.

“Parent Stock” means the Common Stock, $0.00001 par value per share, of Parent.

“Parent Stock Price” means $157.2697.

“Participating Escrow Share Number” means the (a) Participating Share Number less (b) the aggregate number of shares of Company Capital Stock underlying the Qualifying Options outstanding immediately prior to the Effective Time and Promised Options.

“Participating Share Number” means the Fully Diluted Stock Number; provided that if the Pro Rata Consideration is lower than the Series D Liquidation Preference, then Participating Share Number means (a) the Fully Diluted Stock Number less (b) the aggregate number of Series D Shares outstanding as of immediately prior to the Effective Time.

“Permitted Issuances” means equity interests granted in compliance with the terms set forth in Schedule 5.1(b)(vi) of the Disclosure Schedule.

“Per Share Closing Consideration” means the value equal to (a) the Per Share Participating Consideration, less (b) the Per Share Escrow Value.

“Per Share Common Consideration” means the value of the consideration payable to each Common Share pursuant to Section 2.3(a), assuming for this purpose that (a) each Parent Share issuable is valued at the Parent Stock Price and (b) 100% of the Escrow Amount is released to the Equityholders pursuant to Article 8.

“Per Share Consideration” means, with respect to any Company Share, the consideration issuable and/or payable in respect of such Share pursuant to Section 2.3.

“Per Share Escrow Consideration” means the value equal to the quotient of (a) any portion of the Escrowed Stock and Escrowed Cash released to the Equityholders pursuant to Article 8, divided by (b) the Participating Escrow Share Number.

“Per Share Escrow Value” means (a) Escrow Amount divided by (b) Participating Escrow Share Number.

“Per Share Participating Consideration” means an amount equal to (a) the Closing Amount divided by (b) Participating Share Number.

“Permit” means any governmental consent, license, permit, grant or other authorization of a Governmental Body.

“Permitted Liens” means, with respect to any Person, (a) conditional sales or similar security interests granted in connection with the purchase of equipment or supplies in the ordinary course of business, (b) assessments for current Taxes (i) not yet due and payable or (ii) being contested through appropriate proceedings and for which adequate reserves are reflected on the Financial Statements in accordance with GAAP, (c) statutory liens securing indebtedness owed by such Person that is in the aggregate less than $10,000, which was incurred in the ordinary course of business and is not yet due and payable, (d) Liens that will be released and discharged at or prior to the Closing, (e) all pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation arising in the ordinary course of business, (f) Liens under applicable securities laws, (g) non-exclusive licenses of Intellectual Property Rights granted in the ordinary course of business, and (i) any Liens set forth on Annex H.

“Person” means any individual, entity or Governmental Body.

“Personal Data” means any information relating to or capable of being associated, directly or indirectly, with an identified or identifiable natural person or household, including a name, an identification number, unique personal identifier, biometric information, usernames, passwords, account numbers, whole and partial credit card and virtual credit card numbers, pin codes, location data, commercial information including products or services purchased and account balances, obtained or considered, or other purchasing or consuming histories or tendencies, professional, educational or employment related information, inferences drawn from personal information and used to create a profile, Internet or other electronic network activity information, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person or any other piece of information that allows the identification of a natural person or is otherwise considered personally identifiable information, Sensitive Personal Data, special categories of personal data or Personal Information under Applicable Law, including Sensitive Personal Data and Tracking Data.

“Pre-Closing Taxes” means any (a) Taxes of the Acquired Companies for any Pre-Closing Tax Period (and, for the avoidance of doubt, will include any such Taxes that were deferred pursuant to the CARES Act or any other corresponding or similar provision of other Applicable Law with respect to Taxes that become payable after the Closing Date), (b) any Taxes of any other Person for which the Company is liable if the agreement, event or occurrence giving rise to such Liability occurred on or before the Closing Date and (c) the 50% of any Transfer Taxes for which the Equityholders are responsible under Section 2.8. For clarity, Pre-Closing Taxes includes any payroll Taxes or other Taxes of the Company arising in connection with any payment required pursuant to, or arising as a result of, this Agreement or the Transactions, whether or not such Taxes are due and payable as of the Closing Date and includes any amounts required to be repaid by the Acquired Companies with respect to refundable Tax credits received by the Acquired Companies prior to the Closing Date. In the case of any Taxes of the Acquired Companies that are imposed on a periodic basis and that are payable for a Straddle Period, such Taxes will (i) in the case of property, ad valorem or other Taxes that accrue based upon the passage of time, be deemed to be Pre-Closing Taxes in an amount equal to the amount of such Taxes for the entire Taxable period multiplied by a fraction, the numerator of which is the number of days in the Taxable period through and including the Closing Date and the denominator of which is the number of days in the entire Taxable period and (ii) in the case of any other Taxes, be deemed to be Pre-Closing Taxes in an amount equal to the amount of Taxes that would be payable if the relevant Taxable period ended on the Closing Date. Any credits relating to a Taxable period that includes (but does not end on) the Closing Date will be taken into account as though the relevant Taxable period ended on the Closing Date.

“Pre-Closing Tax Period” means any taxable period ending on or before the Closing Date and, in the case of any Straddle Period, the portion of such taxable period ending on and including the Closing Date.

“Privacy Laws” means each Applicable Law applicable to Personal Data, including the General Data Protection Regulation (EU) 2016/679, the UK Database Protection Act, the New York Identity Theft Protection and Mitigation Services Act, Gramm Leach Bliley Act, Fair Credit Reporting Act, Cloud Controls Metric Cloud Security Alliance, the Payment Card Industry Data Security Standards, the Telephone Consumer Protection Act, the California Consumer Privacy Act, state data breach notification laws, Rhode Island Identity Theft Protection Act of 2015, Utah Protection of Personal Information Act, New York State Department of Financial Services’ Cybersecurity Law, Massachusetts Data Security Law, Utah Cybersecurity Affirmative Defense Act, New York Stop Hacks and Improve Electronic Data Security Act, and direct marketing and advertising, profiling and tracking, targeting, email messaging and/or telemarketing, biometric, accessibility and other Applicable Laws, guidance issued by a Governmental Body that pertains to any foregoing Applicable Law, Payment Card Industry Data Security Standards and all other applicable industry self-regulatory principles that are binding on any Acquired Company that pertains to any of the foregoing.

“Pro Rata Consideration” means an amount equal to the quotient of (a) (i) the Total Consideration minus (ii) the Aggregate Junior Liquidation Preference, divided by (b) the Fully Diluted Stock Number.

“Pro Rata Share” means, with respect to a particular Equityholder, a fraction, the numerator of which is the portion of the Equityholder Consideration such Equityholder is entitled to receive pursuant to Section 2.3 (which, for the avoidance of doubt, excludes the assumption of any Options and any payments and issuances in respect of Dissenting Shares) and the denominator is the aggregate value of the Equityholder Consideration, assuming for this purpose that (a) each share of Parent Stock issuable pursuant to Section 2.3 is valued at the Parent Stock Price, (b) that 100% of the Escrow Amount is released to the Equityholders pursuant to Article 8 and (c) that 100% of the Agent Expense Fund is released to the Equityholders by the Agent.

“Process” “Processed” or “Processing” means, with respect to data, any operation or set of operations, including without limitation collection, recording, organization, structuring, storage, adaptation, enhancement, enrichment or alteration, retrieval, consultation, analysis, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction that are performed on Personal Data or on sets of Personal Data.

“Promised Option” means any stock option or other equity interest of the Company that has been offered by an Acquired Company but has not yet been granted.

“Promised Optionholder” means an individual who holds one or more Promised Options.

“Promised Option Agreement” means an offer letter, Contract or other written or unwritten commitment from an Acquired Company pursuant to which such Acquired Company offers to grant stock options or other equity interests of the Company.

“Qualifying Options” means (a) all Continuing Employee Options and (b) all Key Employee Non-Cash-Out Options, in each case as of immediately prior to the Effective Time.

“Representatives” means, with respect to a Person, such Person’s officers, directors, Affiliates, stockholders or employees, or any investment banker, attorney, accountant, auditor or other advisor or representative retained by any of them.

“Sanctions” means any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions, trade embargoes, anti-terrorism laws and other sanctions laws, regulations or embargoes, including those imposed, administered or enforced from time to time by (i) the United States of America, including those administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or through any existing executive order, (ii) the United Nations Security Council, (iii) the European Union or any European Union member state, (iv) Her Majesty’s Treasury of the United Kingdom or (v) any other relevant Governmental Body.

“Sanctions Target” means any Person (i) that is the subject or target of any Sanctions, (ii) named in any Sanctions-related list maintained by OFAC, the U.S. Department of State, the U.S. Department of Commerce or the U.S. Department of the Treasury, including the OFAC list of “Specially Designated Nationals and Blocked Persons,” (iii) established under the laws of or resident in a jurisdiction that is itself the subject of comprehensive sanctions (currently Crimea, Cuba, Iran, North Korea, and Syria), (iv) owned or controlled by any such Person or Persons described in the foregoing clauses (i)-(iii), or (v) that is otherwise subject to Sanctions that prohibits a party from dealing or otherwise engaging in any transaction with such Person.

“SEC” means the United States Securities and Exchange Commission.

“Securities Act” means the Securities Act of 1933, as amended.

“Senior Non-U.S. Political Figure” means (i) a senior official in the executive, legislative, administrative, military, or judicial branches of a non-U.S. government (whether elected or not), (ii) a senior official of a major non-U.S. political party, (iii) a senior executive of a non-U.S. government-owned corporation or (iv) any corporation, business, or other entity that has been formed by, or for the benefit of, any individual described in clauses (i), (ii) or (iii) of this definition.

“Sensitive Personal Data” means in addition to any definition for any similar term provided by Applicable Laws, (e.g., sensitive personal information), and by the Company policies, notices and Contracts, all data revealing racial or ethnic origin, political opinions, social security number or other state or federal identification number, religious or philosophical beliefs, trade union membership, genetic data, biometric data, health related data, criminal convictions and offenses, and data concerning a person’s sex life, gender orientation or sexual orientation.

“Series A Liquidation Preference” means $3.19.

“Series A Shares” means shares of Company Series A Stock that are issued and outstanding immediately prior to the Effective Time.

“Series A Stock” means the Series A Preferred Stock, par value $0.0001 per share, of the Company.

“Series B Liquidation Preference” means $6.447.

“Series B Shares” means shares of Company Series B Stock that are issued and outstanding immediately prior to the Effective Time.

“Series B Stock” means the Series B Preferred Stock, par value $0.0001 per share, of the Company.

“Series C Liquidation Preference” means $20.5619.

“Series C Shares” means shares of Company Series C Stock that are issued and outstanding immediately prior to the Effective Time.

“Series C Stock” means the Series C Preferred Stock, par value $0.0001 per share, of the Company.

“Series D Liquidation Preference” means $40.6124.

“Series D Shares” means shares of Company Series D Stock that are issued and outstanding immediately prior to the Effective Time.

“Series D Stock” means the Series D Preferred Stock, par value $0.0001 per share, of the Company

“Series Seed 1 Liquidation Preference” means $1.238.

“Series Seed 1 Shares” means shares of Company Series 1 Stock that are issued and outstanding immediately prior to the Effective Time.

“Series Seed 1 Stock” means the Series Seed 1 Preferred Stock, par value $0.0001 per share, of the Company.

“Series Seed 2 Liquidation Preference” means $1.243.

“Series Seed 2 Shares” means shares of Company Series 2 Stock that are issued and outstanding immediately prior to the Effective Time.

“Series Seed 2 Stock” means the Series Seed 2 Preferred Stock, par value $0.0001 per share, of the Company.

“Share Consideration” means the Parent Shares to be issued by Parent pursuant to this Agreement.

“Share Consideration Percentage” means (a) a percentage equal to the quotient of the Share Consideration Value, divided by (b) the Total Consideration.

“Share Consideration Value” means $1,875,000,000.

“Significant Investor” means each Stockholder set forth on Annex D.

“Spreadsheet” means a Microsoft Excel spreadsheet in form and substance reasonably satisfactory to Parent, which spreadsheet shall be dated as of the Closing Date and shall set forth all of the following information (in addition to the other required data and information specified therein), as of immediately prior to the Closing:

(a) the name, address, and email address (to the extent available) of each Equityholder, Optionholder and Promised Optionholder, certificate numbers, and the number of shares of Company Capital Stock (by class of Company Capital Stock), Effective Time Options, Cash-Out Options, Promised Options, Permitted Issuances and the number of shares of Company Capital Stock subject to any Warrant held by such Equityholder, including the number of any such shares of Company Capital Stock that were acquired via exercise of an “incentive stock option” (within the meaning of Section 422 of the Code) and the number of any such shares of Company Capital Stock that were acquired via an “early exercise” to purchase unvested shares of Company Capital Stock, as well as each date of exercise as to each of the foregoing;

(b) for each Equityholder subject to a Holdback Agreement, the portion of the consideration payable or issuable to such Equityholder (including for the avoidance of doubt any Assumed Option) that will be unvested as of the Effective Time pursuant to a Holdback Agreement and the vesting schedule applicable thereto;

(d) for each Equityholder, a calculation of (i) such Equityholder’s Pro Rata Share, (ii) the consideration payable and issuable to each Equityholder pursuant to Section 2.3 upon the Closing and the consideration payable and issuable to each Equityholder upon the release of the Escrow Fund (assuming for this purpose that 100% of the Escrow Amount will be distributed to the Equityholders pursuant to Article 8), (iii) the portion of the Agent Expense Fund attributable to Equityholder and (iv) the portion of the Equityholder Consideration subject to a Holdback Agreement and vesting schedule applicable to such consideration;

(e) for each holder of an Assumed Option, a calculation of the number Parent Shares that will underlie the Assumed Options after the Effective Time, and the per share exercise price of such Assumed Option;

(f) for each holder of a Cash-Out Option, a calculation of the Key Employee Cash-Out Option Consideration and the Cash-Out Option Consideration, as applicable;

(g) for each holder of a Promised Option, a calculation of the number of Parent RSUs that will settle into the number of Parent Shares (which shall be subject to the vesting terms and conditions set forth on Schedule 3.4(e) and will be issued in accordance with the Parent Option Plan);

(h) with respect to each share of Company Capital Stock that was acquired upon the exercise of an “incentive stock option” within the meaning of Section 422 of the Code, the grant date and exercise date thereof; and

(i) a funds flow memorandum setting forth the wire instructions for payments to be made by Parent and the Exchange Agent at the Closing to (i) the Exchange Agent, (ii) recipients of the Transaction Expenses, and (iii) recipients of Debt payments.

“Stockholders” means (a) with respect to any time before the Effective Time, collectively, the holders of record of shares of Company Capital Stock outstanding as of such time and (b) with respect to any time at or after the Effective Time, collectively, the holders of record of shares of Company Capital Stock outstanding as of immediately prior to the Effective Time.

“Straddle Period” means any taxable period that includes, but does not end on, the Closing Date.

“Subsidiary” means, with respect to any Person, any other corporation, partnership, limited liability company or other Person of which such Person, either alone or together with one or more Subsidiaries or by one or more other Subsidiaries, (a) directly or indirectly owns or purports to own, beneficially or of record securities or other interests representing more than 50% of the outstanding equity, voting power, or financial interests of such Person, or (b) is entitled, by Contract or otherwise, to elect, appoint, or designate directors constituting a majority of the members of such Person’s board of directors or equivalent governing body.

“Tax” (and, with correlative meaning, “Taxes” and “Taxable”) means (a) any net income, alternative or add-on minimum tax, gross income, estimated, gross receipts, sales, use, ad valorem, value added, transfer, franchise, fringe benefit, capital stock, profits, license, registration, withholding, payroll, social security (or equivalent), employment, unemployment, disability, excise, severance, stamp, occupation, premium, property (real, tangible or intangible), environmental or windfall profit tax, escheat, unclaimed property, custom duty or other tax, governmental fee or other like assessment or charge of any kind whatsoever, together with any interest or any penalty, addition to tax or additional amount (whether disputed or not) imposed by any Governmental Body responsible for the imposition of any such tax (domestic or foreign) (each, a “Tax Authority”) (b) any Liability for the payment of any amounts of the type described in clause (a) of this sentence as a result of being a member of an affiliated, consolidated, combined, unitary or aggregate group for any Taxable period and (c) any Liability for the payment of any amounts of the type described in clause (a) or (b) of this sentence as a result of being a transferee of or successor to any Person or as a result of any express or implied obligation to assume such Taxes or to indemnify any other Person.

“Tax Claim” means any claim with respect to Taxes made by any Tax Authority that, if pursued successfully, would reasonably be expected to serve as the basis for a claim for indemnification under Article 8.

“Tax Proceeding” means any audit, examination, contest, litigation or other proceeding with or against any Tax Authority.

“Tax Return” means any return, statement, report or form (including estimated Tax returns and reports, withholding Tax returns and reports, any schedule or attachment, and information returns and reports) filed or required to be filed with respect to Taxes.

“Total Consideration” means the Cash Consideration plus the Share Consideration Value.

“Tracking Data” means (a) any information or data collected in relation to on-line, mobile or other electronic activities or communications that can reasonably be associated with a particular Person, user, computer, mobile or other device, or instance of any application or mobile application, (b) any information or data collected in relation to off-line activities or communications that can reasonably be associated with or that derives from a particular Person, user, computer, mobile or other device or instance of any application or mobile application or (c) any device or network identifier (including IP address or MAC address), device activity data or data collected from a networked physical object.

“Transaction Documents” means, collectively, this Agreement and each other certificate or agreement to be entered into in connection with the Transactions.

“Transaction Expenses” means, without duplication, all third-party fees, costs, expenses, payments and expenditures incurred by or on behalf of the Company in connection with this Agreement and the Transactions (excluding, for the avoidance of doubt, payments made by or at the express direction of Parent or an Affiliate thereof which are not required to be made pursuant to a compensatory plan, policy, agreement or commitment in effect prior to the Closing or required under this Agreement), whether or not incurred, billed or accrued, including (a) any fees, costs expenses, payments and expenditures of legal counsel and accountants, (b) the maximum amount of fees costs, expenses, payments and expenditures payable to brokers, finders, financial advisors, investment bankers or similar Persons notwithstanding any earn-outs, escrows or other contingencies, (c) all bonuses or severance obligations or other compensatory

amounts owed by the Company to the Company’s directors, employees and/or consultants in connection with the Transactions that are unpaid as of the Closing, (d) any entitlements or costs (including any costs relating to any notice provision or termination costs of an agreement) for service providers that may become payable upon the Closing or upon a termination of employment or consulting services prior to or at the Closing including such costs related to any service provider that has been offered employment with Parent post-Closing but has declined to accept, (excluding any payments triggered by a termination of employment occurring after the Closing, any obligations or amounts owed in connection with the acceleration of any Options, or a termination occurring at the Closing that is made by or at the direction of Parent or an Affiliate of Parent), (e) without duplication of any amount otherwise described in the definition of “Working Capital Liabilities,” the employer portion of any employment, payroll Taxes, or other Taxes arising in connection with the foregoing clauses (c) through (d) or any other payment required pursuant to, or arising as a result of, this Agreement or the transactions contemplated by this Agreement, whether or not such liabilities for Taxes would be then due and payable, but in each case which directly relate to services provided prior to Closing, (f) the portion of the Filing Fees payable by the Company pursuant to Section 5.5, (g) the D&O Tail premium, (h) any such fees, costs, expenses, payments and expenditures incurred by any Person paid for or to be paid for by the Company and (i) all costs and expenses incurred to obtain any consents to the Transactions from any third party.

“Treasury Shares” means shares of Company Capital Stock held by the Company as treasury shares.

“WARN Act” means the Worker Adjustment Retraining Notification Act of 1988, as amended.

“Warrantholders” means the holders of Warrants.

“Warrants” means warrants to purchase shares of Company Capital Stock.

“Working Capital Adjustment” means (i) the Working Capital Surplus minus (ii) the Working Capital Shortfall.

“Working Capital Amount” means the (i) Working Capital Assets less (ii) the Working Capital Liabilities, as of the Closing Date.

“Working Capital Assets” means the current assets of the Company set forth in Annex I as of the Closing Date, in each case as determined in accordance with the Accounting Principles.

“Working Capital Liabilities” means the current liabilities of the Company set forth in Annex I as of the Closing Date, in each case as determined in accordance with the Accounting Principles.

“Working Capital Shortfall” means the amount by which negative $22,500,000 exceeds the Working Capital Amount, if at all.

“Working Capital Surplus” the amount by which the Working Capital Amount exceeds negative $17,500,000, if at all.

ARTICLE 2

THE MERGER

2.1 Transactions Occurring on the Closing Date.

(a) Closing Date. Upon the terms and subject to the conditions of this Agreement, the closing of the Merger (the “Closing”) will take place by exchange of electronic deliveries and signatures, unless otherwise agreed by Parent and the Company, on the third Business Day following the satisfaction or waiver of the conditions set forth in Article 6 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions); provided that if such Business Day would otherwise occur anytime during (a) the final 10 Business Days of a fiscal quarter of Parent or (b) the final month of a fiscal year of Parent (other than the first day of such month), then Parent may, in its sole discretion, delay the Closing until the first Business Day in the next fiscal quarter or fiscal year, as applicable, of Parent, subject to the continued satisfaction or waiver of the conditions set forth in Article 6; provided, further that if all conditions set forth in Article 6 are satisfied or waived prior to June 1, 2021 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions), then the Closing shall take place on June 1, 2021.

(b) Charter Amendment. Upon the Closing, the Company will cause a duly executed amendment to the certificate of incorporation of the Company, as amended to date (the “Charter”) in the form attached hereto as Exhibit C to be filed with the Secretary of State of the State of Delaware (the “Charter Amendment”).

(i) On the Closing Date and immediately after the Charter Amendment becomes effective, the Company will cause a duly executed certificate of merger in the form attached hereto as Exhibit D-1 (the “First Certificate”) to be filed with Secretary of State of the State of Delaware in accordance with the DGCL, which will become effective as of such filing or as otherwise set forth in the First Certificate (such time, the “Effective Time”), and upon the Effective Time, Merger Sub I will be merged with and into the Company, the separate existence of Merger Sub I will cease and the Company will become a wholly owned subsidiary of Parent.

(ii) On the Closing Date and immediately following the Effective Time, the Company and Merger Sub II will cause a duly executed certificate of merger in the form attached hereto as Exhibit D-2 (the “Second Certificate”) to be filed with Secretary of State of the State of Delaware in accordance with the DGCL and the DLCCA, which will become effective as of such filing or as otherwise set forth in the Second Certificate (such time, the “Second Effective Time”), and upon the Second Effective Time the Company will merge with and into Merger Sub II, the separate corporate existence of the Company will cease, and Merger Sub II will continue as the surviving entity of the Merger (the “Surviving Company”).

(iii) The parties hereto intend that the First Merger and the Second Merger be treated as integrated steps in the Transactions, consistent with Rev. Rul. 2001-46, 2001-2 C.B. 321, and qualify as a single “reorganization” within the meaning of Section 368(a)(1)(A) of the Code and Treasury Regulations thereunder, and hereby adopt this Agreement as a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3 and Section 354(a)(1) of the Code. Notwithstanding this Section 2.1 and any other provision of this Agreement, no party hereto makes any representation or warranty to another party with respect to the Tax consequences of the Merger.

(iv) Each party hereto will make all other necessary filings and/or recordings to consummate the Merger in accordance with the DCGL and DLCCA.

2.2 Effects of the Merger. The Merger will have the effects set forth herein and in the applicable provisions of the DGCL and the DLLCA:

(a) At the Effective Time, unless otherwise agreed in writing by Parent and the Company: (i) the certificate of incorporation of the Company will be amended to be identical to the certificate of incorporation of Merger Sub I as in effect immediately prior to the Effective Time (except for the name of the Company), (ii) each issued and outstanding share of Company Capital Stock (each, a “Company Share”) will cease to exist and (iii) each issued and outstanding share of capital stock of Merger Sub I will become one share of Company Common Stock.

(b) At the Second Effective Time, unless otherwise agreed in writing by Parent and the Company: (i) the certificate of formation and the limited liability company agreement of Merger Sub II as in effect immediately prior to the Second Effective Time (except for the name of the Company), will be the certificate of formation and the limited liability company agreement of the Surviving Company, (ii) each share of Company Capital Stock that is issued and outstanding immediately prior to the Second Effective Time will cease to exist and will be cancelled and extinguished without any conversion thereof and (iii) each membership interest of Merger Sub II that is issued and outstanding immediately prior to the Second Effective Time will constitute one membership interest of the Surviving Company.

2.3 Treatment of Company Shares and Warrants. Upon the terms and subject to the conditions set forth herein, at the Effective Time, by virtue of the First Merger and without further action by any party:

(a) Common Shares. Each Common Share that is not a Treasury Share or a Dissenting Share will be cancelled and automatically converted into the right to receive, without interest and subject to any applicable withholding obligations:

(i) an amount equal to (A) a number of Parent Shares equal to the quotient of (x) the product of the Per Share Closing Consideration multiplied by the Share Consideration Percentage, divided by (y) the Parent Stock Price and (B) cash equal to the product of the Per Share Closing Consideration multiplied by the Cash Consideration Percentage; and

(ii) to the extent the Escrow Fund or any portion thereof becomes issuable to Equityholders pursuant to Section 8.1(b), an amount equal to (A) a number of Parent Shares equal to the quotient of (x) the product of the Per Share Escrow Consideration multiplied by the Share Consideration Percentage, divided by (y) the Parent Stock Price and (B) cash equal to the product of the Per Share Escrow Consideration multiplied by the Cash Consideration Percentage.

(b) Series D Shares. Each Series D Share that is not a Treasury Share or a Dissenting Share will be cancelled and automatically converted into the right to receive, without interest and subject to any applicable withholding obligations, the greater of:

(i) (A) a number of Parent Shares equal to the quotient of (x) the product of the Series D Liquidation Preference multiplied by the Share Consideration Percentage, divided by (y) the Parent Stock Price and (B) an amount in cash equal to the product of the Series D Liquidation Preference multiplied by the Cash Consideration Percentage; and