425

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K/A

CURRENT REPORT 

Pursuant to Section 13 or Section 15(d) 

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): November 2, 2021

SilverBox Engaged Merger Corp I

(Exact name of registrant as specified in its charter)

Delaware	001-40118	85-4169699
(State or other jurisdiction of incorporation or organization)	(Commission File Number)	(I.R.S. Employer Identification Number)
1250 S. Capital of Texas Highway Building 2, Suite 285 Austin, TX		78746
(Address of principal executive offices)		(Zip Code)

(512) 575-3637 

(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:

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

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

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

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

Securities registered pursuant to Section 12(b) of the Securities Exchange Act of 1934:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Units, each consisting of one share of Class A common stock, $0.0001 par value, and one-third of one redeemable warrant	SBEAU	The Nasdaq Stock Market LLC
Shares of Class A common stock, included as part of the units	SBEA	The Nasdaq Stock Market LLC
Redeemable warrants included as part of the units, each whole warrant exercisable for one share of Class A common stock at an exercise price of $11.50 per share	SBEAW	The Nasdaq Stock Market LLC

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

Emerging growth company x

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. ¨

This Amendment amends the Current Report on Form 8-K of SilverBox Engaged Merger Corp I, filed with the Securities and Exchange Commission (the "SEC") on November 2, 2021 (the "Initial Current Report"), in which SilverBox Engaged Merger Corp I reported, among other events, the execution of the Business Combination Agreement (as defined below).

Item 1.01 Entry into a Material Definitive Agreement.

Business Combination Agreement

SilverBox Engaged Merger Corp I (“SilverBox”) is a blank check company incorporated in Delaware and formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses. As previously disclosed in the Initial Current Report, on November 2, 2021, SilverBox entered into a Business Combination Agreement (the “Business Combination Agreement”) with Authentic Brands, LLC, a Delaware limited liability company (“Authentic Brands”) and the indirect parent of Black Rifle Coffee Company LLC, a Delaware limited liability company (“BRCC”), Grand Opal Investment Holdings, Inc., a Delaware corporation (“Blocker”), BRC Inc., a Delaware corporation and wholly owned direct subsidiary of SilverBox (“PubCo”), SBEA Merger Sub LLC, a Delaware limited liability company and a wholly owned direct subsidiary of PubCo (“Merger Sub 1”), and BRCC Blocker Merger Sub LLC, a Delaware limited liability company and a wholly owned direct subsidiary of SilverBox (“Merger Sub 2”). Pursuant to the Business Combination Agreement, and subject to the terms and conditions contained therein, the business combination will be effected in two steps: (a)  SilverBox will merge with and into Merger Sub 1 (the “SilverBox Merger”), with Merger Sub 1 surviving the SilverBox Merger as a wholly owned subsidiary of PubCo; and (b) immediately following the SilverBox Merger, Merger Sub 2 will merge with and into Blocker (the “Blocker Merger” and, together with the SilverBox Merger and all other transactions contemplated by the Business Combination Agreement, the “Business Combination”), with Blocker surviving as a wholly owned subsidiary of Merger Sub 1 (“New Authentic Brands”). As a result of the Business Combination, PubCo will become a new publicly-traded company, will be reorganized as a public benefit corporation and will become the managing member of New Authentic Brands in an “Up-C” structure.

The Business Combination

The Business Combination Agreement provides that, among other things and upon the terms and subject to the conditions thereof, the following transactions will occur:

(i) Merger Sub 1 will merge with and into SilverBox, with Merger Sub 1 surviving the SilverBox Merger as a direct wholly owned subsidiary of PubCo, and (x) each share of SilverBox’s Class A common stock, par value $0.0001 per share (“SilverBox Class A Common Stock”), and Class C common stock par value $0.0001 per share (“SilverBox Class C Common Stock”), outstanding immediately prior to the effectiveness of the SilverBox Merger being converted into the right to receive one share of PubCo’s Class A common stock, par value $0.0001 per share (“PubCo Class A Common Stock”), (y) each share of SilverBox’s Class B common stock, par value $0.0001 per share (“SilverBox Class B Common Stock,” and, collectively with the SilverBox Class A Common Stock and SilverBox Class C Common Stock, the “SilverBox Common Stock”), outstanding immediately prior to the effectiveness of the SilverBox Merger being converted into the right to receive a combination of shares of PubCo Class A Common Stock and PubCo’s Class C common stock, par value $0.0001 per share (“PubCo Class C Common Stock”), which PubCo Class C Common Stock will have no voting rights and will be restricted and convertible automatically into shares of PubCo Class A Common Stock upon the occurrence of certain events, and (z) each warrant of SilverBox outstanding immediately prior to the effectiveness of the SilverBox Merger being converted into the right to receive one warrant of PubCo (the “PubCo Warrants”), with PubCo assuming SilverBox’s obligations under the existing warrant agreement;

(ii) immediately following the SilverBox Merger, Merger Sub 2 will merge with and into Blocker, with Blocker surviving the Blocker Merger as a direct wholly owned subsidiary of Merger Sub 1 and an indirect wholly subsidiary of PubCo and each share of common stock of Blocker outstanding immediately prior to the effectiveness of the Blocker Merger being converted into the right to receive a combination of shares of PubCo Class A Common Stock, shares of PubCo Class C Common Stock, and cash; and

(iii) PubCo will issue to certain existing members of Authentic Brands (the “Continuing Unitholders”) shares of PubCo’s Class B common stock, par value $0.0001 per share (“PubCo Class B Common Stock”), which will have no economic rights but will entitle the holders thereof to vote on all matters on which stockholders of PubCo are entitled to vote generally, equal to the number of Company Units held by such members in Authentic Brands.

As a result of the Business Combination, among other things:

(i) PubCo will hold limited liability company interests in New Authentic Brands (“Company Units”) and will be the managing member of Authentic Brands; and

(ii) the Continuing Unitholders will hold (i) non-voting Company Units that are exchangeable on a one-for-one basis for shares of PubCo Class A Common Stock (subject to surrendering a corresponding number of shares of PubCo Class B Common Stock for cancellation), (ii) restricted Company Units that will be subject to vesting, forfeiture and certain other conditions as specified in the limited liability company agreement of Authentic Brands, and (iii) a number of shares of PubCo Class B Common Stock corresponding to the number of Company Units held.

Conditions to Closing

The Business Combination Agreement is subject to the satisfaction or waiver of certain customary closing conditions, including, among others, (a) approval of the Business Combination and related agreements and transactions by the SilverBox stockholders, the Authentic Brands members and the Blocker stockholders, (b) effectiveness of the proxy / registration statement on Form S-4 (the “Registration Statement”) to be filed by PubCo in connection with the Business Combination, (c) expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act, (d) receipt of approval for listing on the New York Stock Exchange (“NYSE”) or The Nasdaq Stock Market LLC (“Nasdaq”), as applicable, the shares of PubCo Class A Common Stock to be issued in connection with the Business Combination, (e) that SilverBox have at least $5,000,001 of net tangible assets upon the consummation of the closing of the Business Combination (the “Closing”), (f) the absence of any injunctions, and (g) at least 5,000,000 shares of PubCo Class A Common Stock shall be publicly held shares (within the meaning of applicable listing rules). Other conditions to Authentic Brands’ obligations to consummate the Business Combination include, among others, (i) that the aggregate cash proceeds available for release to SilverBox from SilverBox’s trust account (after giving effect to all redemptions of shares of SilverBox Class A Common Stock), plus gross proceeds from the PIPE Investment and the Forward Purchase Investment (each as defined below), shall be equal to or greater than $300,000,000, before deduction of any transaction expenses or other uses contemplated by the Business Combination Agreement; (ii) the accuracy of the representations and warranties of SilverBox as of the Closing; (iii) the performance or compliance of each SilverBox covenant in all material respects as of or prior to the Closing; and (iv) receipt of a certificate signed by a SilverBox authorized officer certifying the satisfaction of the preceding clauses (ii) and (iii).

Covenants

The Business Combination Agreement contains additional covenants, including, among others, providing for (i) the parties to conduct their respective businesses in the ordinary course through the Closing, (ii) the parties to not initiate any negotiations or enter into any agreements for certain alternative transactions, (iii) Authentic Brands to prepare and deliver to SilverBox certain audited and unaudited consolidated financial statements of Authentic Brands, (iv) PubCo and SilverBox to prepare, with the assistance of Authentic Brands, and PubCo to file, the Registration Statement and take certain other actions to obtain the requisite approval of SilverBox stockholders of certain proposals regarding the Business Combination, and (v) the parties to use reasonable best efforts to obtain necessary approvals from governmental agencies.

Representations and Warranties

The Business Combination Agreement contains customary representations and warranties by SilverBox and Authentic Brands. The representations and warranties of the respective parties to the Business Combination Agreement generally will not survive the closing of the Business Combination.

Termination

The Business Combination Agreement contains certain termination rights for both SilverBox and Authentic Brands including (but not limited to) that the Business Combination Agreement may be terminated at any time prior to the consummation of the Business Combination (i) by mutual written consent of SilverBox and Authentic Brands, (ii) by written notice from either SilverBox or Authentic Brands to the other if certain approvals of the SilverBox stockholders, to the extent required under the Business Combination Agreement, are not obtained as set forth therein, (iii) by written notice from SilverBox, if certain approvals of the Authentic Brands members or the Blocker stockholders, to the extent required under the Business Combination Agreement, are not obtained within two (2) business days after the Registration Statement is declared effective, (iv) by either SilverBox or Authentic Brands in certain other circumstances set forth in the Business Combination Agreement, including, among others, (a) if the consummation of the Business Combination is permanently enjoined or prohibited by the terms of a final, non-appealable governmental order, (b) in the event of certain uncured breaches by the other party, (c) if the SilverBox stockholders do not approve the Business Combination or (d) if the Closing has not occurred on or before seven (7) months after the date of the Business Combination Agreement.

Certain Related Agreements

PIPE and Backstop Subscription Agreements

As previously disclosed in the Initial Current Report, on November 2, 2021, concurrently with the execution of the Business Combination Agreement, SilverBox entered into subscription and backstop agreements (collectively, the “PIPE Subscription Agreements”) with various accredited investors (collectively, the “PIPE Investors”), pursuant to, and on the terms and subject to the conditions of which, the PIPE Investors have collectively subscribed for up to 20,000,000 shares of SilverBox Class C Common Stock at a price of $10.00 per share or an aggregate purchase price of up to $200 million (the “PIPE Investment”), consisting of (i) 10,000,000 shares to be purchased and issued prior to the Closing and (ii) up to an additional 10,000,000 shares to be purchased and issued prior to the Closing to the extent that the SilverBox Shareholder Redemptions exceed $100,000,000.

The obligation of the parties to consummate the purchase and sale of the shares covered by the PIPE Subscription Agreements is conditioned upon, among other things, (i) there not being in force any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making the consummation of the transactions contemplated thereby illegal or otherwise restraining or prohibiting consummation of the transactions contemplated thereby and no such court or governmental authority having instituted or threatened in writing a proceeding seeking to impose any such restraint or prohibition, and (ii) the conditions precedent to the closing of the Business Combination shall have been satisfied or waived. The closing of the subscriptions under the PIPE Subscription Agreements will occur on the business day immediately preceding the consummation of the SilverBox Merger. The PIPE Subscription Agreements provide that, in the event that the PIPE Shares are not registered in connection with the Business Combination, PubCo, upon assumption of SilverBox’s rights and obligations under the PIPE Subscription Agreements, is required to file with the SEC, within thirty (30) business days after the consummation of the Business Combination, a registration statement covering the resale of the PIPE Shares and to use its commercially reasonable efforts to have such registration statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) ninety (90) calendar days following the closing date (or, in the event the SEC reviews and has written comments to the registration statement, the one hundred twentieth (120th) calendar day following the closing date) and (ii) the tenth (10th) business day after the date PubCo is notified (orally or in writing, whichever is earlier) by the SEC that the registration statement will not be “reviewed” or will not be subject to further review.

Additionally, pursuant to the PIPE Subscription Agreements, the PIPE Investors agreed to waive any claims that they may have at the closing of the PIPE Investment or in the future as a result of, or arising out of, the PIPE Subscription Agreements against SilverBox, including with respect to the trust account. The PIPE Subscription Agreements will terminate, and be of no further force and effect, upon the earliest to occur of (i) such date and time as the Business Combination Agreement is terminated in accordance with its terms without being consummated, (ii) upon the mutual written agreement of SilverBox and the applicable PIPE Investor, and (iii) by the applicable Subscriber if the closing of the PIPE Investment has not occurred by the Termination Date (as defined in the Business Combination Agreement), provided such PIPE Investor’s breach was not the proximate cause for such closing to fail to occur by such date.

Amended and Restated Forward Purchase Agreement

On November 2, 2021, concurrently with the execution of the Business Combination Agreement, SilverBox entered into the Amended and Restated Forward Purchase Agreement (the “Forward Purchase Agreement”) with Engaged Capital, LLC (“Engaged Capital”), a member of SilverBox’s sponsor, in its capacity as investment advisor on behalf of investment funds and accounts managed by Engaged Capital (collectively, the “Forward Purchase Investors”), and Authentic Brands, pursuant to, and on the terms and subject to the conditions of, which the Forward Purchase Investors have collectively subscribed for 10,000,000 shares of SilverBox Class C Common Stock (the “Forward Purchase Shares”) at a price of $10.00 per share or an aggregate purchase price of $100,000,000 (the “Forward Purchase Investment”).

The obligation of the parties to consummate the purchase and sale of the Forward Purchase Shares is conditioned upon, among other things, (i) all conditions precedent to the consummation of the Business Combination pursuant to the Business Combination Agreement having been satisfied or waived, (ii) there not being any order, writ, judgment, injunction, decree, determination, or award entered by or with any governmental, regulatory, or administrative authority or any court, tribunal, or judicial, or arbitral body, and any other legal restraint or prohibition in effect, preventing the purchase by the Forward Purchase Investors of the Forward Purchase Shares, (iii) all representations and warranties of each Forward Purchase Investor and SilverBox in the Forward Purchase Agreement being true and correct in all material respects as of the closing date of the consummation of the subscriptions contemplated under the Forward Purchase Agreement and (iv) SilverBox having performed, satisfied or complied in all material respects with the covenants and other agreements required by the Forward Purchase Agreement. The closing of the Forward Purchase Investment will occur concurrently with closing of the PIPE Investment.

The Forward Purchase Agreement will terminate, and be of no further force and effect, upon the earliest to occur of (i) such date and time as the Business Combination Agreement is terminated in accordance with its terms without being consummated, and (ii) upon the mutual written agreement of SilverBox and the Forward Purchase Investors.

Sponsor Letter Agreement

As previously disclosed in the Initial Current Report, on November 2, 2021, concurrently with the execution and delivery of the Business Combination Agreement, SilverBox entered into A Sponsor Letter Agreement (the “Sponsor Letter Agreement”), with SilverBox Engaged Sponsor LLC (the “Sponsor”), PubCo and Authentic Brands, pursuant to which the Sponsor has unconditionally and irrevocably agreed to, among other things: (a) vote at any meeting of the stockholders of SilverBox, and in any action by written resolution of the stockholders of SilverBox, all of the SilverBox Class B Common Stock held by the Sponsor to approve the Business Combination and all related transactions and proposals; (b) withhold consent with respect to any matter, action or proposal that would reasonably be expected to result in a material breach of any of SilverBox’s covenants, agreements or obligations under the Business Combination Agreement, or any of the Closing conditions not being satisfied; (c) waive any rights to adjustment or other anti-dilution or similar protections with respect to the rate that the SilverBox Class B Common Stock held by the Sponsor will convert into SilverBox Class A Common Stock in connection with the Business Combination and related transactions, including the PIPE Investment; (d) forfeit 1,158,500 shares of PubCo Class A Common Stock at the Closing, and that after the Closing an aggregate of 1,241,250 shares of PubCo Class C Common Stock will be non-transferrable and remain subject to forfeiture and cancellation; (e) donate 332,500 shares of PubCo Class A Common Stock to the BRCC Fund, a 501(c)(3) nonprofit organization (the “BRCC Fund”), and, subject to certain current Authentic Brands equityholders concurrently collectively donating at least 100,000 shares of Pubco Class A Common Stock (or, at their election, Company Units) to the BRCC Fund, donate an additional 100,000 shares of PubCo Class A Common Stock to the BRCC Fund; (f) forfeit up to 2,068,750 shares of SilverBox Class B Common Stock to the extent the aggregate cash proceeds available for release to SilverBox from SilverBox’s trust account (after giving effect to all redemptions of shares of SilverBox Class A Common Stock), plus gross proceeds from the PIPE Investment and the Forward Purchase Investment, is less than $445,000,000, with (x) a corresponding decrease in the number of Company Units held by PubCo and (y) a corresponding increase in the number of Company Units held by the Continuing Unitholders; and (g) certain provisions with respect to restricted PubCo shares to be held by Sponsor, including with respect to conversion, dividends and potential cancellation and forfeiture; in each case, on the terms and subject to the conditions set forth in the Sponsor Letter Agreement.

Transaction Support Agreements

As previously disclosed in the Initial Current Report, on November 2, 2021, concurrently with the execution and delivery of the Business Combination Agreement, SilverBox, PubCo, Authentic Brands and Blocker entered into Transaction Support Agreements (collectively, the “Transaction Support Agreements”) with certain Authentic Brands members and Blocker stockholders. Pursuant to the Transaction Support Agreements, Authentic Brands members and the Blocker stockholders agreed to, among other things, vote to adopt and approve, as soon as reasonably practicable after (but no later than two business days after) the effectiveness of the Registration Statement, the Business Combination Agreement and all other documents and transactions contemplated thereby, in each case, subject to the terms and conditions of the Transaction Support Agreements, and vote against any alternative merger, purchase of assets or proposals that would impede, frustrate, prevent or nullify any provision of the Business Combination, the Business Combination Agreement or the Transaction Support Agreements or result in a breach of any covenant, representation, warranty or any other obligation or agreement thereunder.

Pursuant to the Transaction Support Agreements, Authentic Brands members and Blocker stockholders also agreed to, among other things, (a) to the extent required or applicable, vote or provide consent for purposes of authorizing and approving the Business Combination or the Business Combination Agreement, (b) when any meeting of Authentic Brands members or Blocker stockholders (as applicable) is held, appear at such meeting or otherwise cause the Authentic Brands member’s and Blocker stockholder’s Covered Securities (as defined in the Transaction Support Agreements) to be counted as present thereat for the purposes of establishing a quorum and (c) vote or provide consent in any other circumstances upon which a consent or other approval is required under Authentic Brands’ organizational documents or Blocker’s organizational documents (as applicable).

Investor Rights Agreement

The Business Combination Agreement contemplates that, at the Closing, PubCo, the Sponsor, Evan Hafer (the “BRCC Founder”), the Forward Purchase Investors, and certain other equityholders of PubCo will enter into an Investor Rights Agreement (the “Investor Rights Agreement”), pursuant to which, among others, so long as the BRCC Founder and the Forward Purchase Investors continue to own a specified percentage of PubCo Class A Common Stock and/or Company Units, then such holder will have the right to designate for nomination by the board of directors the number of candidates for election to the board of directors specified in the Investor Rights Agreement. In addition, for a period of five years following the Closing, the Sponsor and the Forward Purchase Investors agree to vote as directed by the Founder on the election and removal of directors. The Investor Rights Agreement also provides that certain specific action as set forth therein shall be approved by a vote of two thirds of the directors then in office.

In addition, the Investor Rights Agreement provides that PubCo will agree to register for resale, certain shares of PubCo Class A Common Stock and other equity securities of PubCo that are held by the parties thereto from time to time. The Investor Rights Agreement provides for underwritten offerings and piggyback registration rights, in each case subject to certain limitations set forth therein.

Under the Investor Rights Agreement, the stockholders party thereto will agree to a six-month lock-up from the Closing.

Tax Receivable Agreement

The Business Combination Agreement contemplates that, at the Closing, PubCo, Authentic Brands and the Agent (as defined the Tax Receivable Agreement) will enter into a Tax Receivable Agreement (the “Tax Receivable Agreement”), pursuant to which, among other things, PubCo will pay to certain parties thereto 85% of certain tax benefits, if any, that PubCo realizes.

The foregoing description of each of the Business Combination Agreement, the form of PIPE Subscription Agreement, the Forward Purchase Agreement, the Sponsor Letter Agreement, the form of Transaction Support Agreement, the form of Investor Rights Agreement and the form of Tax Receivable Agreement is not complete and are subject to and qualified in its entirety by reference to the Business Combination Agreement, PIPE Subscription Agreements, Forward Purchase Agreement, the Sponsor Letter Agreement, the form of Transaction Support Agreement, the form of Investor Rights Agreement and the form of Tax Receivable Agreement, copies of which are filed with this Current Report on Form 8-K as Exhibit 2.1, Exhibit 10.1, Exhibit 10.2, Exhibit 10.3, Exhibit 10.4, Exhibit 10.5 and Exhibit 10.6, respectively, and the terms of which are incorporated by reference herein.

The Business Combination Agreement, the form of PIPE Subscription Agreements, the Forward Purchase Agreement, Sponsor Letter Agreement, the form of Transaction Support Agreement, the form of Investor Rights Agreement and the form of Tax Receivable Agreement have been included to provide investors with information regarding its terms. They are not intended to provide any other factual information about SilverBox or its affiliates. The representations, warranties, covenants and agreements contained in the Business Combination Agreement, the PIPE Subscription Agreements, the Forward Purchase Agreement, the Sponsor Letter Agreement, the Transaction Support Agreement, the Investor Rights Agreement, the Tax Receivable Agreement and the other documents related thereto were made only for purposes of the Business Combination Agreement or such other agreement (as applicable) as of the specific dates therein, were solely for the benefit of the parties to the Business Combination Agreement, the PIPE Subscription Agreements, the Forward Purchase Agreement, the Sponsor Letter Agreement, the Transaction Support Agreement, the Investor Rights Agreement and the Tax Receivable Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Business Combination Agreement, the PIPE Subscription Agreements, the Forward Purchase Agreement, the Sponsor Letter Agreement, the Transaction Support Agreement, the Investor Rights Agreement or the Tax Receivable Agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Public investors are not third-party beneficiaries under the Business Combination Agreement, the PIPE Subscription Agreements, the Forward Purchase Agreement, the Sponsor Letter Agreement, the Transaction Support Agreement or the Investor Rights Agreement and should not rely on the representations, warranties, covenants and agreements or any descriptions thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of representations and warranties may change after the date of the Business Combination Agreement, the PIPE Subscription Agreements, the Forward Purchase Agreement, the Sponsor Letter Agreement, the Transaction Support Agreement or the Investor Rights Agreement, as applicable, which subsequent information may or may not be fully reflected in the SilverBox’s public disclosures.

Item 3.02 Unregistered Sales of Equity Securities

The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K with respect to the PIPE Investment, and the Forward Purchase Investment is incorporated by reference in this Item 3.02. The PIPE Subscribed Shares to be issued in connection with the PIPE Investment and the Forward Purchase Shares to be issued in connection with the Forward Purchase Investment will not be registered under the Securities Act of 1933 (the “Securities Act”), and will be issued in reliance on the exemption from registration requirements thereof provided by Section 4(a)(2) of the Securities Act.

Forward-Looking Statements

Certain statements in this Current on Form 8-K are forward-looking statements. Forward-looking statements generally relate to future events including future financial or operating performance of Authentic Brands, LLC (the “Company”) or SilverBox Engaged Merger Corp I (“SBEA”). Forward-looking statements generally relate to future events or SBEA’s or the Company’s future financial or operating performance. For example, projections of future revenue and other metrics are forward-looking statements. In some cases, you can identify forward-looking statements by terminology such as “may”, “should”, “expect”, “intend”, “will”, “estimate”, “anticipate”, “believe”, “predict”, “potential” or “continue”, or the negatives of these terms or variations of them or similar terminology. Such forward-looking statements are subject to risks, uncertainties, and other factors that could cause actual results to differ materially from those expressed or implied by such forward-looking statements.

These forward-looking statements are based upon estimates and assumptions that, while considered reasonable by SBEA and its management, and the Company and its management, as the case may be, are inherently uncertain and are inherently subject to risks, variability and contingencies, many of which are beyond the Company’s control. Factors that may cause actual results to differ materially from current expectations include, but are not limited to: (1) SBEA’s ability to complete the business combination; (2) the outcome of any legal proceedings that may be instituted against SBEA, the combined company or others following the announcement of the business combination and any definitive agreements with respect thereto; (3) the inability to complete the business combination due to the failure to obtain approval of the stockholders of SBEA, to obtain financing to complete the business combination or to satisfy other conditions to closing; (4) changes to the proposed structure of the business combination that may be required or appropriate as a result of applicable laws or regulations or as a condition to obtaining regulatory approval of the business combination; (5) the ability to meet stock exchange listing standards following the consummation of the business combination; (6) the risk that the business combination disrupts current plans and operations of the Company as a result of the announcement and consummation of the business combination; (7) the ability to recognize the anticipated benefits of the business combination, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth profitably, maintain key relationships and retain its management and key employees; (8) costs related to the business combination; (9) changes in applicable laws or regulations; (10) the possibility that the Company or the combined company may be adversely affected by other economic, business, and/or competitive factors; (11) the Company’s estimates of expenses and profitability; (12) the failure to realize anticipated pro forma results or projections and underlying assumptions, including with respect to estimated stockholder redemptions, purchase price and other adjustments; and (13) other risks and uncertainties set forth in the section entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements” in SBEA’s final prospectus relating to its initial public offering dated February 25, 2021, in the registration statement on Form S-4 (the “Form S-4”) relating to the business combination to be filed with the Securities and Exchange Commission (the “SEC”), and in subsequent filings with the SEC, including the final prospectus/proxy statement relating to the business combination. There may be additional risks that neither SBEA nor the Company presently know or that SBEA and the Company currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements.

Nothing in this Current Report on Form 8-K should be regarded as a representation by any person that the forward-looking statements set forth herein will be achieved or that any of the contemplated results of such forward-looking statements will be achieved. You should not place undue reliance on forward-looking statements, which speak only as of the date they are made. Neither SBEA nor the Company undertakes any duty to update these forward-looking statements or to inform the recipient of any matters of which any of them becomes aware of which may affect any matter referred to in this Current Report on Form 8-K.

Additional Information about the Proposed Business Combination and Where to Find It

This Current Report on Form 8-K is being made in respect of the proposed transaction involving SBEA and the Company. In connection with the proposed business combination, the Form S-4 is expected to be filed by a newly-formed holding company (“PubCo”) with the SEC that will include a proxy statement of SBEA and that will also include a prospectus of PubCo. SBEA’S STOCKHOLDERS AND OTHER INTERESTED PERSONS ARE ADVISED TO READ, WHEN AVAILABLE, THE FORM S-4, INCLUDING THE PRELIMINARY PROXY STATEMENT/PROSPECTUS AND THE AMENDMENTS THERETO AND THE DEFINITIVE PROXY STATEMENT/PROSPECTUS AND OTHER DOCUMENTS FILED IN CONNECTION WITH THE PROPOSED BUSINESS COMBINATION, AS THESE MATERIALS WILL CONTAIN IMPORTANT INFORMATION ABOUT SBEA, PUBCO, THE COMPANY AND THE PROPOSED BUSINESS COMBINATION. This Current Report on Form 8-K does not contain all the information that should be considered concerning the proposed business combination and is not intended to form the basis of any investment decision or any other decision in respect of the business combination. When available, the definitive proxy statement/prospectus and other relevant materials for the proposed business combination will be mailed to stockholders of SBEA as of a record date to be established for voting on the proposed business combination. Stockholders will also be able to obtain copies of the preliminary proxy statement/prospectus, the definitive proxy statement/prospectus and other documents filed with the SEC, without charge, once available, at the SEC’s website at www.sec.gov.

Participants in the Solicitation

SBEA, PubCo and their respective directors and executive officers may be deemed participants in the solicitation of proxies from SBEA’s stockholders with respect to the proposed business combination. A list of the names of those directors and executive officers and a description of their interests in SBEA is contained in SBEA’s final prospectus related to its initial public offering dated February 25, 2021, which was filed with the SEC and is available free of charge at the SEC’s website at www.sec.gov. Additional information regarding the interests of such participants will be contained in the proxy statement/prospectus for the proposed business combination when available.

The Company and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the stockholders of SBEA in connection with the proposed business combination. A list of the names of such directors and executive officers and information regarding their interests in the proposed business combination will be included in the proxy statement/prospectus for the proposed business combination that will be filed on Form S-4 when available.

No Offer or Solicitation

This Current Report on Form 8-K does not constitute an offer to sell or the solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of section 10 of the Securities Act, or an exemption therefrom.

Item 9.01. Financial Statements and Exhibits.

(d)          Exhibits.

Exhibit No.	Description
2.1*	Business Combination Agreement dated as of November 2, 2021
10.1	Form of PIPE Subscription Agreement
10.2	Amended and Restated Forward Purchase Agreement dated as of November 2, 2021
10.3	Sponsor Letter Agreement dated as of November 2, 2021
10.4	Form of Transaction Support Agreement
10.5	Form of Investor Rights Agreement
10.6	Form of Tax Receivable Agreement
104	Cover Page Interactive Data File (embedded within the Inline XBRL document)

* Certain schedules to this Exhibit have been omitted in accordance with Item 601(a)(5) of Regulation S-K. SilverBox hereby agrees to hereby furnish supplementally a copy of all omitted schedules to the SEC upon 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: November 2, 2021

SILVERBOX ENGAGED MERGER CORP I
By:	/s/ Daniel E. Esters
Name:	Daniel E. Esters
Title:	Chief Financial Officer

EX-2.1

Exhibit 2.1

Execution Version

BUSINESS COMBINATION AGREEMENT

BY AND AMONG

SILVERBOX ENGAGED MERGER CORP I,

BRC INC.,

SBEA MERGER SUB LLC,

BRCC BLOCKER MERGER SUB LLC,T:\tm2131550-2\tm2131550-2_8kaseq1

GRAND OPAL INVESTMENT HOLDINGS, INC.

AND

AUTHENTIC BRANDS, LLC

DATED AS OF NOVEMBER 2, 2021

TABLE OF CONTENTS

Page

Article 1 CERTAIN DEFINITIONS		5
Section 1.1	Definitions	5
Article 2 TRANSACTIONS		24
Section 2.1	Closing Transactions	24
Section 2.2	Effective Times of the Mergers; Effects of the Mergers	26
Section 2.3	Closing of the Transactions Contemplated by this Agreement	30
Section 2.4	Deliverables	30
Section 2.5	Withholding	31
Section 2.6	Closing Statement	32
Article 3 REPRESENTATIONS AND WARRANTIES RELATING TO THE GROUP COMPANIES		33
Section 3.1	Organization and Qualification	33
Section 3.2	Capitalization of the Group Companies	33
Section 3.3	Authority	35
Section 3.4	Financial Statements; Undisclosed Liabilities	35
Section 3.5	Consents and Requisite Governmental Approvals; No Violations	37
Section 3.6	Permits	38
Section 3.7	Material Contracts	38
Section 3.8	Absence of Changes	41
Section 3.9	Litigation	41
Section 3.10	Compliance with Applicable Law	42
Section 3.11	Employee Plans	42
Section 3.12	Environmental Matters	44
Section 3.13	Intellectual Property	45
Section 3.14	Labor Matters	48
Section 3.15	Insurance	49
Section 3.16	Tax Matters	50
Section 3.17	Brokers	52
Section 3.18	Real and Personal Property	52
Section 3.19	Transactions with Affiliates	54
Section 3.20	Top Vendors and Top Customers	55
Section 3.21	Equipment and Other Tangible Property	55
Section 3.22	Product Warranties; Product Liability	55
Section 3.23	Data Privacy and Security	56
Section 3.24	Compliance with International Trade & Anti-Corruption Laws	56
Section 3.25	Information Supplied	57
Section 3.26	Government Contracts	58
Section 3.27	Investigation; No Other Representations	58
Section 3.28	No Operations	58
Section 3.29	EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES	59

i

Article 4 REPRESENTATIONS AND WARRANTIES RELATING TO SILVERBOX PARTIES		60
Section 4.1	Organization and Qualification	60
Section 4.2	Authority	60
Section 4.3	Consents and Requisite Governmental Approvals; No Violations	61
Section 4.4	Brokers	61
Section 4.5	Information Supplied	61
Section 4.6	Capitalization of the SilverBox Parties	62
Section 4.7	Investment Company Act	63
Section 4.8	SEC Filings	63
Section 4.9	Trust Account	64
Section 4.10	Transactions with Affiliates	64
Section 4.11	Litigation	64
Section 4.12	Compliance with Applicable Law	65
Section 4.13	Business Activities	65
Section 4.14	Internal Controls; Listing; Financial Statements	65
Section 4.15	No Undisclosed Liabilities	67
Section 4.16	Compliance with International Trade & Anti-Corruption Laws	67
Section 4.17	Tax Matters	68
Section 4.18	Status of SilverBox Parties	68
Section 4.19	Investigation; No Other Representations	69
Section 4.20	EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES	69
Article 5 COVENANTS		70
Section 5.1	Conduct of Business of the Group Companies	70
Section 5.2	Efforts to Consummate; Litigation	75
Section 5.3	Confidentiality and Access to Information	76
Section 5.4	Public Announcements	77
Section 5.5	Exclusive Dealing	78
Section 5.6	Preparation of Registration Statement / Proxy Statement	80
Section 5.7	SilverBox Shareholder Approval	81
Section 5.8	Shareholder Approvals of Pubco, Merger Sub 1 and Merger Sub 2	81
Section 5.9	Conduct of Business of SilverBox	82
Section 5.10	Listing	83
Section 5.11	Trust Account	84
Section 5.12	Party Consents and Approvals	84
Section 5.13	SilverBox Indemnification; Directors’ and Officers’ Insurance	85
Section 5.14	Company Indemnification; Directors’ and Officers’ Insurance	86
Section 5.15	Post-Closing Directors and Officers	87
Section 5.16	PCAOB Financials and Additional Information	88
Section 5.17	Founder Equity Incentive Plan; Pubco Equity Incentive Plan	89
Section 5.18	Blocker Activities	90
Section 5.19	Treatment of Existing Indebtedness	90
Section 5.20	Amendment and Restatement of Pubco Charter and Bylaws	91
Article 6 TAX MATTERS		91
Section 6.1	Certain Tax Matters	91

ii

Article 7 CONDITIONS TO CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT		92
Section 7.1	Conditions to the Obligations of the Parties	92
Section 7.2	Other Conditions to the Obligations of SilverBox Parties	93
Section 7.3	Other Conditions to the Obligations of the Company and Blocker Corp	95
Section 7.4	Frustration of Closing Conditions	95
Article 8 TERMINATION		96
Section 8.1	Termination	96
Section 8.2	Effect of Termination	97
Article 9 MISCELLANEOUS		97
Section 9.1	Non-Survival	97
Section 9.2	Entire Agreement; Assignment	97
Section 9.3	Amendment	97
Section 9.4	Notices	98
Section 9.5	Governing Law	99
Section 9.6	Fees and Expenses	99
Section 9.7	Construction; Interpretation	100
Section 9.8	Exhibits and Schedules	100
Section 9.9	Parties in Interest	101
Section 9.10	Severability	101
Section 9.11	Counterparts; Electronic Signatures	101
Section 9.12	Knowledge of Company; Knowledge of SilverBox	101
Section 9.13	No Recourse	102
Section 9.14	Extension; Waiver	102
Section 9.15	Waiver of Jury Trial	102
Section 9.16	Submission to Jurisdiction	103
Section 9.17	Remedies	103
Section 9.18	Trust Account Waiver	103
ANNEXES AND EXHIBITS

Annex A	PIPE Investors
Annex B	Supporting Equityholders
Annex C	Sample Calculation of Common Unit Redemption Amount
Exhibit A	Form of Subscription Agreement
Exhibit B	Form of Amended and Restated Company LLC Agreement
Exhibit C	Form of Tax Receivable Agreement
Exhibit D	Form of Investor Rights Agreement
Exhibit E	Form of Amended and Restated SilverBox Certificate of Incorporation
Exhibit F	Form of Warrant Assumption Agreement
Exhibit G	Form of Amended and Restated Pubco Charter
Exhibit H	Form of Amended and Restated Pubco Bylaws

iii

BUSINESS COMBINATION AGREEMENT

This BUSINESS COMBINATION AGREEMENT (this “Agreement”), dated as of November 2, 2021, is made by and among SilverBox Engaged Merger Corp I, a Delaware corporation (“SilverBox”), BRC Inc., a Delaware corporation and wholly owned subsidiary of SilverBox (“Pubco”), SBEA Merger Sub LLC, a Delaware limited liability company and wholly owned subsidiary of Pubco (“Merger Sub 1”), BRCC Blocker Merger Sub LLC, a Delaware limited liability company and wholly owned subsidiary of SilverBox (“Merger Sub 2”), Grand Opal Investment Holdings, Inc., a Delaware corporation (“Blocker Corp”), and Authentic Brands, LLC, a Delaware limited liability company (the “Company”). SilverBox, Pubco, Merger Sub 1, Merger Sub 2, Blocker Corp and the Company shall be referred to herein from time to time collectively as the “Parties”. Capitalized terms used but not otherwise defined herein have the meanings set forth in Section 1.1.

WHEREAS, (a) SilverBox is a blank check company incorporated as a Delaware corporation on December 31, 2020 for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses, (b) Pubco is, as of the date of this Agreement, a wholly owned Subsidiary of SilverBox that was formed for purposes of consummating the transactions contemplated by this Agreement and the Ancillary Documents, (c) Merger Sub 1 is, as of the date of this Agreement, a wholly owned Subsidiary of Pubco that was formed for purposes of consummating the transactions contemplated by this Agreement and the Ancillary Documents, and (d) Merger Sub 2 is, as of the date of this Agreement, a wholly owned Subsidiary of SilverBox that was formed for purposes of consummating the transactions contemplated by this Agreement and the Ancillary Documents;

WHEREAS, the Company is engaged in the business of sourcing, processing, manufacturing, packaging, distributing, marketing and selling coffee and other food and beverage products, and related merchandise and apparel, and designing, owning, operating, licensing and franchising coffee-based retail establishments, or any activities, services or products incidental or attendant thereto, including media enterprises based on persons associated with the Group Companies, Company values and such business (the “Business” or the “business of the Group Companies”);

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

WHEREAS, as of the date of this Agreement, SilverBox Engaged Sponsor LLC, a Delaware limited liability company (the “Sponsor”) owns 8,625,000 SilverBox Class B Shares and 6,266,667 SilverBox Warrants;

WHEREAS, concurrently with the execution of this Agreement, Engaged Capital, LLC, a Delaware limited liability company (“Engaged Capital”), SilverBox and the Company are entering into that certain Amended and Restated Forward Purchase Agreement (as amended, restated, or otherwise modified from time to time, the “Forward Purchase Agreement”), pursuant to which, among other things, (a) Engaged Capital, acting in its capacity as investment advisor on behalf of investment funds and accounts managed by Engaged Capital (collectively, the “FPA Investors”), has agreed to subscribe for and purchase substantially concurrently with the Closing, and SilverBox has agreed to issue and sell to the FPA Investors, 10,000,000 SilverBox Class C Shares set forth in the Forward Purchase Agreement for an aggregate purchase price of $100,000,000 (the “FPA Financing Amount” and, the equity financing under the Forward Purchase Agreement, the “FPA Financing”), and (b) Engaged Capital and SilverBox have agreed to make the Company a party to the Forward Purchase Agreement and grant the Company a right of specific performance in respect thereof, in each case, on the terms and subject to the conditions set forth in the Forward Purchase Agreement;

WHEREAS, concurrently with the execution of this Agreement, each of the investors set forth on Annex A (collectively, the “PIPE Investors”) are entering into a subscription agreement with SilverBox, substantially in the form attached hereto as Exhibit A (collectively, the “Subscription Agreements”), pursuant to which, among other things, each PIPE Investor has agreed to subscribe for and purchase prior to the Closing, and SilverBox has agreed to issue and sell to each such PIPE Investor prior to the Closing, the number of SilverBox Class C Shares set forth in the applicable Subscription Agreement in exchange for the purchase price set forth therein (the aggregate purchase price under all Subscription Agreements, collectively, the “PIPE Financing Amount” and, the equity financing under all Subscription Agreements, collectively, the “PIPE Financing”), on the terms and subject to the conditions set forth in the applicable Subscription Agreement;

WHEREAS, concurrently with the execution of this Agreement, the Sponsor, SilverBox and the Company are entering into the sponsor letter agreement (the “Sponsor Letter Agreement”), pursuant to which, among other things, the Sponsor has agreed (a) to vote in favor of this Agreement and the transactions contemplated hereby, (b) not to redeem any SilverBox Class A Shares held thereby in connection with the transactions contemplated by this Agreement, (c) to certain adjustments with respect to the Equity Securities of SilverBox held by the Sponsor, on the terms and subject to the conditions set forth in the Sponsor Letter Agreement and (d) to waive any adjustment to the conversion ratio at which the SilverBox Class B Shares convert into SilverBox Class A Shares set forth in the Governing Documents of SilverBox, in each case, on the terms and subject to the conditions set forth in the Sponsor Letter Agreement;

WHEREAS, Blocker Corp is a holder of Existing Company Preferred Units and Existing Company Common Units;

WHEREAS, on the Closing Date, prior to the consummation of the Blocker Merger, and on the terms and subject to the conditions of this Agreement and in accordance with the General Corporation Law of the State of Delaware (as amended, the “DGCL”), the Limited Liability Company Act of the State of Delaware (as amended, “DLLCA”) and other applicable Laws, SilverBox will merge with and into Merger Sub 1 (the “Pubco Merger”), with Merger Sub 1 being the surviving entity of the Pubco Merger, as a result of which, among other things, (a) each SilverBox Class A Share outstanding immediately prior to the Pubco Merger shall no longer be outstanding and shall automatically be converted into the right of the holder thereof to receive a share of Class A common stock, par value $0.0001 per share (each, a “Pubco Class A Share”) of Pubco on a one-for-one basis, (b) each SilverBox Class B Share outstanding immediately prior to the Pubco Merger shall no longer be outstanding and shall automatically be converted into the right of the holder thereof to receive a combination of Pubco Class A Shares and shares of Class C common stock (designated as Series C-1 Common Stock and Series C-2 Common Stock), par value $0.0001 per share (each, a “Pubco Class C Share”), and (c) each outstanding warrant (each, a “SilverBox Warrant”) to purchase SilverBox Class A Shares outstanding immediately prior to the Pubco Merger will become a warrant of Pubco (each, a “Pubco Warrant”) exercisable for Pubco Class A Shares on a one-for-one basis;

WHEREAS, on the Closing Date, prior to the entry into the Amended and Restated Company LLC Agreement, and on the terms and subject to the conditions of this Agreement and in accordance with the DGCL, the DLLCA and other applicable Laws, Merger Sub 2 will merge with and into Blocker Corp (the “Blocker Merger”), with Blocker Corp being the surviving entity of the Blocker Merger, as a result of which, among other things, (a) the Blocker Corp Shareholders shall receive, on a pro rata basis in exchange for all of the issued and outstanding shares of common stock (collectively, the “Blocker Corp Shares”) of Blocker Corp, a combination of Pubco Class A Shares, Pubco Class C Shares, and cash, the aggregate value of which shall be equal to (i) the aggregate price per Existing Company Preferred Unit and Existing Company Common Unit to be received, as applicable, by the other Existing Company Unitholders in connection with the consummation of the transactions contemplated by this Agreement multiplied by (ii) the number of Existing Company Preferred Units and Existing Company Common Units owned by Blocker Corp (the “Blocker Merger Consideration”), and (b) at or prior to the consummation of the Blocker Merger, Blocker Corp shall distribute any and all of its available cash to the Blocker Corp Shareholders;

2 

WHEREAS, on the Closing Date, simultaneously with the consummation of the Business Combination, the Company shall amend and restate the Company LLC Agreement to be substantially in the form attached hereto as Exhibit B (the “Amended and Restated Company LLC Agreement”), pursuant to which (a) the issued and outstanding Existing Company Units shall be recapitalized (excluding the Existing Company Preferred Units then held by the Existing Company Unitholders, other than Blocker Corp, whose Existing Company Preferred Units shall be included in such recapitalization) into (i) an aggregate number of Company Common Units equal to the Fully Diluted Company Units and (ii) 20,000,000 Company Restricted Units and (b) the Company shall be authorized to issue an additional 1,241,250 Company Restricted Units;

WHEREAS, on the Closing Date, following the effectiveness of the Amended and Restated Company LLC Agreement, (a) the Company shall issue Company Common Units and Company Restricted Units (as adjusted pursuant to the Sponsor Letter Agreement) to Pubco in exchange for a combination of shares of Class B common stock, par value $0.0001 per share (each, a “Pubco Class B Share” and, together with the Pubco Class A Shares and the Pubco Class C Shares, collectively, the “Pubco Common Stock”), of Pubco and cash, (b) Pubco shall be admitted as the managing member of the Company, (c) the Company shall redeem all of the issued and outstanding Existing Company Preferred Units (other than Existing Company Preferred Units held by Blocker Corp) and distribute cash to the holders thereof in exchange therefor; (d) the Company shall distribute the Pubco Class B Shares to certain of the Existing Company Unitholders; (e) the Company shall distribute cash to certain of the Existing Company Unitholders in exchange for a portion of the Company Common Units held by such Existing Company Unitholders, in each case, on the terms and subject to the conditions set forth in this Agreement (collectively, the “Business Combination”); and (f) the Existing Company Unitholders shall have the right (but not the obligation) to exchange Company Common Units for Pubco Class A Shares at the Closing without any further action by any Person;

WHEREAS, on the Closing Date, in connection with the Business Combination, the Company shall consummate the Recapitalization (as defined in the Amended and Restated Company LLC Agreement), pursuant to which, among other things, a portion of the Existing Company Units shall be converted into Company Restricted Units, which shall be subject to vesting, forfeiture and other terms and conditions as set forth in the Amended and Restated Company LLC Agreement;

WHEREAS, at the Closing, Pubco, the Company and the other parties thereto will enter into a tax receivable agreement, substantially in the form attached hereto as Exhibit C (the “Tax Receivable Agreement”);

WHEREAS, at the Closing, Pubco, the Sponsor, the Existing Company Unitholders and the Company will enter into an investor rights agreement, substantially in the form attached hereto as Exhibit D (the “Investor Rights Agreement”), pursuant to which, among other things, the Existing Company Unitholders will be granted certain registration rights with respect to their respective shares of Pubco Common Stock, will agree not to effect certain sales or transfers of a portion of the Equity Securities of Pubco held by any of them during the lock-up period described therein, will agree to be bound by certain voting obligations with respect to election of Directors and will agree on certain other corporate governance matters, in each case, on the terms and subject to the conditions therein;

3 

WHEREAS, the board of directors of SilverBox (the “SilverBox Board”) has (a) approved this Agreement, the Ancillary Documents to which SilverBox is or will be a party and the transactions contemplated hereby and thereby and (b) unanimously recommended, among other things, approval of this Agreement and the transactions contemplated by this Agreement by the holders of SilverBox Shares entitled to vote thereon;

WHEREAS, each of the boards of directors or boards of managers (as applicable) of Pubco, Merger Sub 1 and Merger Sub 2 has approved this Agreement, the Ancillary Documents to which Pubco, Merger Sub 1 or Merger Sub 2 (as the case may be) is or will be a party and the transactions contemplated hereby and thereby;

WHEREAS, (a) SilverBox, as the sole stockholder of Pubco and Merger Sub 2, will as promptly as reasonably practicable (and in any event within one Business Day) following the date of this Agreement, approve this Agreement, the Ancillary Documents to which Pubco or Merger Sub 2 (as applicable) is or will be a party and the transactions contemplated hereby and thereby, and (b) Pubco, as the sole member of Merger Sub 1, will as promptly as reasonably practicable (and in any event within one Business Day) following the date of this Agreement, approve this Agreement, the Ancillary Documents to which Merger Sub 1 is or will be a party and the transactions contemplated hereby and thereby;

WHEREAS, each of the boards of directors of Blocker Corp and the Company has (a) approved this Agreement, the Ancillary Documents to which Blocker Corp or the Company (as the case may be) is or will be a party and the transactions contemplated hereby and thereby and (b) recommended, among other things, the approval of this Agreement, the Ancillary Documents to which Blocker Corp or the Company (as the case may be) is or will be a party and the transactions contemplated hereby and thereby by the Blocker Corp Shareholders and the Existing Company Unitholders, respectively, entitled to vote thereon;

WHEREAS, concurrently with the execution of this Agreement, each Blocker Corp Shareholder and Existing Company Unitholder listed on Annex B attached hereto (collectively, the “Supporting Equityholders”) has duly executed and delivered to SilverBox a transaction support agreement (collectively, the “Transaction Support Agreements”), pursuant to which, among other things, each such Supporting Equityholder has agreed to, among other things, support and vote in favor of this Agreement, the Ancillary Documents to which Blocker Corp or the Company (as the case may be) is or will be a party and the transactions contemplated hereby and thereby;

WHEREAS, each of the Parties intends, for U.S. federal income Tax purposes, that the Pubco Merger constitute a transaction that qualifies as a “reorganization” within the meaning of Section 368(a)(1)(F) of the Code and that this Agreement shall constitute a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a) (collectively, the “Intended Tax Treatment”).

NOW, THEREFORE, in consideration of the premises and the mutual promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby agree as follows:

4 

Article 1
CERTAIN DEFINITIONS

Section 1.1Definitions. As used in this Agreement, the following terms have the respective meanings set forth below.

“Additional Audited Financial Statements” has the meaning set forth in Section 5.16(a).

“Additional SilverBox SEC Reports” has the meaning set forth in Section 4.8.

“Affiliate” means, with respect to any Person, any other Person who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlled” and “controlling” have meanings correlative thereto.

“Aggregate Cash Raised” means an amount equal to (a) the aggregate cash proceeds available for release to SilverBox from the Trust Account in connection with the transactions contemplated hereby (after, for the avoidance of doubt, giving effect to all of the SilverBox Shareholder Redemptions) plus (b) the Aggregate Closing PIPE Proceeds.

“Aggregate Closing PIPE Proceeds” means the aggregate cash proceeds actually received by any SilverBox Party in respect of the PIPE Financing and the FPA Financing (whether prior to or on the Closing Date).

“Aggregate Company Units” means collectively, the aggregate number of Company Common Units equal to (a) the Net Equity Value divided by (b) $10.00.

“Agreement” has the meaning set forth in the introductory paragraph to this Agreement.

“Amended and Restated Company LLC Agreement” has the meaning set forth in the recitals to this Agreement.

“Amended and Restated Pubco Bylaws” has the meaning set forth in Section 5.20.

“Amended and Restated Pubco Charter” has the meaning set forth in Section 5.20.

“Amended and Restated SilverBox Certificate of Incorporation” has the meaning set forth in Section 2.1(a).

“Ancillary Documents” means the Subscription Agreements, the Forward Purchase Agreement, the Tax Receivable Agreement, the Investor Rights Agreement, the Sponsor Letter Agreement, the Transaction Support Agreements and each other agreement, document, instrument or certificate contemplated by this Agreement executed or to be executed in connection with the transactions contemplated hereby.

5 

“Anti-Corruption Laws” means, collectively, (a) the U.S. Foreign Corrupt Practices Act (FCPA), (b) the UK Bribery Act of 2010 and (c) any other applicable anti-bribery or anti-corruption Laws related to combatting bribery, corruption and money laundering.

“Blocker Certificate of Merger” has the meaning set forth in Section 2.2(a)(ii).

“Blocker Corp” has the meaning set forth in the introductory paragraph to this Agreement.

“Blocker Corp Shareholder Written Consent” has the meaning set forth in Section 5.12(a).

“Blocker Corp Shareholder Written Consent Deadline” has the meaning set forth in Section 5.12(a).

“Blocker Corp Shareholders” means, collectively, the holders of shares of capital stock of Blocker Corp as of any time of determination prior to the Effective Time.

“Blocker Merger Consideration” has the meaning set forth in the recitals to this Agreement.

“Blocker Plan of Merger” has the meaning set forth in Section 2.2(a)(ii).

“Business” or the “business of the Group Companies” has the meaning set forth in the recitals to this Agreement.

“Business Combination” has the meaning set forth in the recitals to this Agreement.

“Business Combination Proposal” has the meaning set forth in Section 5.7.

“Business Day” means a day, other than a Saturday or Sunday, on which commercial banks in New York, New York and Salt Lake City, Utah are open for the general transaction of business.

6 

“CARES Act” means (i) the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. 116-136), the Families First Coronavirus Response Act of 2020 (H.R. 6201), “Division N - Additional Coronavirus Response and Relief” of the Consolidated Appropriations Act, 2021 (H.E. 133) contained in the Consolidated Appropriations Act, 2021, H.R. 133, and the American Rescue Plan Act of 2021, together with all rules and regulations and guidance issued by any Governmental Entity with respect thereto (including IRS Notices 2020-18, 2020-22, and 2020-65), or any other Law or executive order or executive memorandum (including the Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster, dated August 8, 2020) intended to address the consequences of COVID-19 (in each case, including any comparable provisions of state, local or non-U.S. Law and including any related or similar orders or declarations from any Governmental Entity) and (ii) any extension, amendment, supplement, correction, or revision of, or similar treatment to, items described in the foregoing clause (i).

“CBA” means any collective bargaining agreement or other Contract with any labor union, works council, labor organization or employee representative.

“Change of Control Payment” means (a) any success, change of control, severance, retention, transaction bonus or other similar payment or amount to any Person as a result of, or in connection with this Agreement or the transactions contemplated hereby or any other Change of Control Transaction (including any such payments or similar amounts that may become due and payable based upon the occurrence of one or more additional circumstances, matters or events) or (b) any payments made or required to be made pursuant to or in connection with or upon termination of, and any fees, expenses or other payments owing or that will become owing in respect of, any Company Related Party Transaction during the period beginning on the date of the Latest Balance Sheet and ending on the Closing Date.

“Change of Control Transaction” means any transaction or series of related transactions (a) under which any Person, directly or indirectly, acquires or otherwise purchases (i) another Person or any of its Affiliates or (ii) all or a material portion of assets, businesses or equity securities of another Person, (b) that results, directly or indirectly, in the equityholders of a Person as of immediately prior to such transaction holding, in the aggregate, less than 50% of the voting shares of such Person (or any successor or parent company of such Person) immediately after the consummation thereof (in the case of each of clause (a) and (b), whether by merger, consolidation, tender offer, recapitalization, purchase or issuance of equity securities, tender offer or otherwise), or (c) under which any Person makes any equity or similar investment in another Person.

“Charter Proposal” has the meaning set forth in Section 5.7.

“Closing” has the meaning set forth in Section 2.3(a).

“Closing Date” has the meaning set forth in Section 2.3(a).

“Closing Date Indebtedness” has the meaning set forth in Section 5.19(a).

7 

“Closing Filing” has the meaning set forth in Section 5.4(b).

“Closing Press Release” has the meaning set forth in Section 5.4(b).

“COBRA” means Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code and any similar state Law.

“Code” means the U.S. Internal Revenue Code of 1986, as amended.

“Common Unit Redemption Amount” means, as of the Reference Time, the amount of cash equal to (a) the Aggregate Cash Raised, plus (b) Company Cash, less (c) Unpaid Company Expenses and SilverBox Expenses, less (d) the Preferred Unit Redemption Amount, less (e) the amount of the Indebtedness of the Group Companies to be repaid at the Closing pursuant to Section 2.4(d), less (f) the amount of the cash portion of the Blocker Merger Consideration paid in respect of Existing Company Common Units, less (g) the Company Minimum Retained Cash Amount; provided, however, that the Common Unit Redemption Amount shall not exceed an amount equal to $117,703,000 minus the amount of the cash portion of the Blocker Merger Consideration paid in respect of Existing Company Common Units. A sample calculation of the Common Unit Redemption Amount is set forth on Annex C to this Agreement.

“Company” has the meaning set forth in the introductory paragraph to this Agreement.

“Company Acquisition Proposal” means (a) any transaction or series of related transactions under which any Person, directly or indirectly, (i) acquires or otherwise purchases the Company or any of its controlled Affiliates or (ii) all or a material portion of assets or businesses of the Company or any of its controlled Affiliates (in the case of each of clause (i) and (ii), whether by merger, consolidation, recapitalization, purchase or issuance of equity securities, tender offer or otherwise), or (b) any equity or similar investment in the Company or any of its controlled Affiliates. Notwithstanding the foregoing or anything to the contrary herein, none of this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby shall constitute a Company Acquisition Proposal.

“Company Cash” means the aggregate amount of all cash, cash equivalents and marketable securities held by the Company or any of its Subsidiaries as of the Reference Time (including marketable securities, checks, credit card receivables, bank deposits, short term investments and performance bonds but excluding restricted cash and customer deposits), whether or not kept “on site” or held in deposit, checking, savings, brokerage or other accounts of or in any safety deposit box or other storage device.

“Company Common Units” means the units of the Company designated as “Common Units” pursuant to the Amended and Restated Company LLC Agreement.

“Company D&O Persons” has the meaning set forth in Section 5.14(a).

“Company D&O Tail Policy” has the meaning set forth in Section 5.14(c).

“Company Disclosure Schedules” means the disclosure schedules to this Agreement delivered to SilverBox by the Company on the date of this Agreement.

8 

“Company Expenses” means, as of any time of determination, the aggregate amount of fees, expense, commissions or other amounts incurred by or on behalf of, or otherwise payable by, whether or not due, the Company and any other Group Company in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of the covenants or agreements in this Agreement or any Ancillary Document 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 the Company and any other Group Company, and (b) any other fees, expenses, commissions or other amounts that are expressly allocated to the Company or any Group Company pursuant to this Agreement or any Ancillary Document, including one-half of the HSR filing fee and the cost of the Company D&O Tail Policy. Notwithstanding the foregoing or anything to the contrary herein, Company Expenses shall not include any SilverBox Expenses or amounts that are the subject of Section 6.1(c).

“Company Fundamental Representations” means the representations and warranties set forth in Section 3.1 (Organization and Qualification), Section 3.2 (Capitalization of the Group Companies), Section 3.3 (Authority), Section 3.8(a) (No Company Material Adverse Effect) and Section 3.17 (Brokers).

“Company IT Systems” means all computer systems, Software and hardware, communication systems, servers, network equipment and related documentation, in each case, owned, licensed or leased by a Group Company.

“Company Licensed Intellectual Property” means Intellectual Property Rights owned by any Person (other than a Group Company) that is licensed to any Group Company.

“Company LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of the Company, dated as of December 15, 2020, as amended from time to time.

“Company 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, individually or in the aggregate, a material adverse effect on (a) the business, results of operations or financial condition of the Group Companies, taken as a whole, or (b) the ability of the Company or any of its Subsidiaries or Blocker Corp to consummate the transactions contemplated by this Agreement in accordance with the terms of this Agreement; provided however that, in the case of clause (a), none of the following shall be taken into account in determining whether a Company 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 to the extent resulting 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) changes in any applicable Laws, (v) any change, event, effect or occurrence that is generally applicable to the industries or markets in which any Group Company operates, (vi) events proximately caused by the execution or announcement of this Agreement or the pendency or consummation of the transactions contemplated by this Agreement; provided that, the exception in this clause (vi) shall not apply to the representations and warranties set forth in Section 3.5(b) 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 7.2(a) to the extent it relates to such representations and warranties, (vii) any failure by any Group Company 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 (vi) or (viii)), or (viii) 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 (v) or (viii) may be taken into account in determining whether a Company 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 Group Companies, taken as a whole, relative to other participants operating in the industries or markets in which the Group Companies operate.

9 

“Company Minimum Retained Cash Amount” means an amount equal to $150,000,000.

“Company Non-Party Affiliates” means, collectively, each Company Related Party and each former, current or future Affiliates, Representatives, successors or permitted assigns of any Company Related Party (other than, for the avoidance of doubt, the Company).

“Company Owned Intellectual Property” means all Intellectual Property Rights that are owned or purported to be owned by the Group Companies.

“Company Product” means all Software and other products and services, including any of the foregoing currently in development, from which any Group Company has derived within the past three years, is currently deriving or is scheduled to derive, revenue from the sale, license, maintenance or provision thereof.

“Company Registered Intellectual Property” means all Registered Intellectual Property owned or purported to be owned by, or filed in the name of any Group Company.

“Company Related Party” means any Affiliate of any Group Company (other than, for the avoidance of doubt, any other Group Company) and any Group Company’s or their Affiliates’ respective current, former or future directors, officers, general or limited partners, direct or indirect equityholders, members, managers, controlling persons, employees, Immediate Family members or other representatives and the respective successors and assigns of any of the foregoing Persons.

“Company Related Party Transactions” has the meaning set forth in Section 3.19.

“Company Restricted Units” means the units of the Company designated as “Restricted Units” pursuant to the Amended and Restated Company LLC Agreement.

“Company Unaudited Financial Statements” has the meaning set forth in Section 3.4(b).

“Company Unitholder Written Consent” has the meaning set forth in Section 5.12(b).

“Company Unitholder Written Consent Deadline” has the meaning set forth in Section 5.12(b).

“Confidentiality Agreement” means that certain Mutual Confidential Disclosure Agreement, dated as of July 9, 2021, by and between SilverBox and the Company.

10 

“Consent” means any notice, authorization, qualification, registration, filing, notification, waiver, order, consent, Permit or approval to be obtained from, filed with or delivered to, a Governmental Entity or other Person.

“Continental” means Continental Stock Transfer & Trust Company.

“Continuing Company Units” means, collectively, the aggregate number of Company Common Units equal to the difference between (a) the Aggregate Company Units minus (b) the quotient of (i) the Common Unit Redemption Amount and (ii) $10.00.

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

“Copyrights” has the meaning set forth in the definition of Intellectual Property Rights.

“COVID-19” means SARS-CoV-2 or COVID-19 (and all related strains and sequences), and any evolutions, intensification, resurgence or mutations thereof or related or associated epidemics, pandemic, public health emergencies or disease outbreaks.

“COVID-19 Measures” means any (a) restriction, quarantine, “shelter in place”, “stay at home”, workforce reduction, in-person or other attendance modification or restriction, social distancing, shut down, closure, sequester, safety or similar Law, Order, directive, guidelines or recommendations promulgated by any Governmental Entity that has jurisdiction over the Group Companies, including the Centers for Disease Control and Prevention and the World Health Organization, (b) moratorium, forbearance or similar Laws affecting or relating to creditors’ rights generally, in each case, in connection with or in response to COVID-19, including the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. 116-136) and the Families First Coronavirus Response Act (FFCRA), and (c) other actions directly relating to the health and safety of the employees of the Company and its Subsidiaries and customers and others with whom the Group Companies have business dealings taken by any Group Company in response to COVID-19 that are of a nature and scale reasonably consistent with the types of actions taken by similarly situated businesses in response to COVID-19, excluding workforce reductions, plant or facility closures, and other actions that could implicate the WARN Act.

“Creator” has the meaning set forth in Section 3.13(d).

“Data Partners” has the meaning set forth in Section 3.23(b).

“Data Protection Requirements” has the meaning set forth in Section 3.23(b).

“DGCL” has the meaning set forth in the recitals to this Agreement.

“Directors” has the meaning set forth in Section 5.15(b).

“DLLCA” has the meaning set forth in the recitals to this Agreement.

“Effective Time” has the meaning set forth in Section 2.1(f)(i).

11 

“Employee Benefit Plan” means each “employee benefit plan” (as such term is defined in Section 3(3) of ERISA, whether or not subject to ERISA) and each equity or equity-based compensation, retirement, pension, savings, profit sharing, bonus, incentive, severance, separation, employment, individual consulting or independent contractor, change in control, retention, deferred compensation, vacation, paid time off, medical, retiree or post-termination health or welfare, salary continuation, fringe or other compensatory plan, program, policy, agreement arrangement or Contract that any Group Company maintains, sponsors or contributes to (or is required to contribute to), or under or with respect to which any Group Company has or would reasonably expect to have any Liability, whether or not (i) subject to the Laws of the United States, (ii) in writing or (iii) funded.

“Environmental Laws” means all Laws and Orders concerning pollution, protection of the environment, or human health or safety.

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

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

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Existing Company Class A Units” means the units of the Company designated as “Class A Common Units” pursuant to the Company LLC Agreement.

“Existing Company Class B Units” means the units of the Company designated as “Class B Common Units” pursuant to the Company LLC Agreement.

“Existing Company Common Units” means the Existing Company Class A Units and the Existing Company Class B Units.

“Existing Company Incentive Units” means the units of the Company designated as “Incentive Units” pursuant to the Company LLC Agreement.

“Existing Company Preferred Units” means the units of the Company designated as “Preferred Units” pursuant to the Company LLC Agreement.

“Existing Company Unitholders” means, collectively, the holders of Existing Company Units as of any time of determination prior to the Effective Time.

“Existing Company Units” means, collectively, the Existing Company Common Units, Existing Company Incentive Units and Existing Company Preferred Units.

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

“Financial Statements” has the meaning set forth in Section 3.4(a).

“Founder Equity Incentive Plan” has the meaning set forth in Section 5.17.

12 

“Fraud” means an act or omission by a Party, and requires: (a) a false or incorrect representation or warranty expressly set forth in this Agreement, (b) with actual knowledge (as opposed to constructive, imputed or implied knowledge) by the Party making such representation or warranty that such representation or warranty expressly set forth in this Agreement was false or incorrect when made, (c) an intention to deceive another Party, to induce him, her or it to enter into this Agreement or to consummate the transactions contemplated by this Agreement, as applicable, (d) another Party, in justifiable or reasonable reliance upon such false or incorrect representation or warranty expressly set forth in this Agreement, causing such Party to enter into this Agreement, and (e) another Party to suffer damage by reason of such reliance. “Fraud” does not include any claim for equitable fraud, promissory fraud, unfair dealings fraud or any torts (including a claim for fraud or alleged fraud) based on negligence, but “Fraud” will include recklessness as constituting scienter under the federal securities Laws.

“Fully Diluted Company Units” means a number of Company Common Units equal to the sum of (a) the Continuing Company Units, plus (b) the number of Pubco Outstanding Shares.

“GAAP” means United States generally accepted accounting principles as in effect from time to time, consistently applied.

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

“Government Official” means, collectively, any officer, employee, official, representative, or any Person acting for or on behalf of any Governmental Entity or public international organization, any political party or official thereof and any candidate for political office.

“Governmental Entity” 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 arbitral tribunal (public or private).

“Group Company” and “Group Companies” means, collectively, the Company and its Subsidiaries.

“Hazardous Substance” means any hazardous, toxic, explosive or radioactive material, substance, waste or other pollutant that is regulated by, or may give rise to Liability pursuant to, any Environmental Law, including any petroleum products or byproducts, asbestos, lead, polychlorinated biphenyls, per- and poly-fluoroalkyl substances, or radon.

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

“Immediate Family” means, with respect to any specified Person, such Person’s spouse, parents, children and siblings, including adoptive relationships and relationships through marriage, and any other relative of such Person that shares such Person’s home.

13 

“Indebtedness” means, as of any time, without duplication, with respect to any Person, the outstanding principal amount of, accrued and unpaid interest on, fees and expenses arising under or in respect of (a) indebtedness for borrowed money, (b) other obligations evidenced by any note, bond, debenture or other debt security, but excluding any trade payables arising in the ordinary course of business, (c) obligations for the deferred purchase price of property or assets, including “earn-outs” and “seller notes”, (d) reimbursement and other obligations with respect to letters of credit, bank guarantees, bankers’ acceptances or other similar instruments, in each case, solely to the extent drawn, (e) leases required to be capitalized under GAAP, (f) derivative, hedging, swap, foreign exchange or similar arrangements, including swaps, caps, collars, hedges or similar arrangements, and (g) any of the obligations of any other Person of the type referred to in clauses (a) through (f) 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.

“Intellectual Property Rights” means all intellectual property rights and related priority rights protected, created or arising under the Laws of the United States or any other jurisdiction or under any international convention, including all (a) patents and patent applications, industrial designs and design patent rights, including any continuations, divisionals, continuations-in-part and provisional applications and statutory invention registrations, and any patents issuing on any of the foregoing and any reissues, reexaminations, substitutes, supplementary protection certificates, extensions of any of the foregoing (collectively, “Patents”); (b) trademarks, service marks, trade names, service names, brand names, trade dress rights, logos, Internet domain names, corporate names and other source or business identifiers, together with the goodwill associated with any of the foregoing, and all applications, registrations, extensions and renewals of any of the foregoing (collectively, “Marks”); (c) copyrights and works of authorship, database and design rights, mask work rights and moral rights, whether or not registered or published, and all registrations, applications, renewals, extensions and reversions of any of any of the foregoing (collectively, “Copyrights”); (d) rights of privacy and publicity, including rights to the use of names images, and biographical information of real persons; (e) trade secrets, know-how and confidential and proprietary information, including invention disclosures, inventions and formulae, whether patentable or not; (f) rights in or to Software or other technology; and (g) any other intellectual or proprietary rights protectable, arising under or associated with any of the foregoing, including those protected by any Law anywhere in the world.

“Intended Tax Treatment” has the meaning set forth in the recitals to this Agreement.

“Investment Company Act” means the Investment Company Act of 1940, as amended.

“Investor Rights Agreement” has the meaning set forth in the recitals to this Agreement.

“IPO” has the meaning set forth in Section 9.18.

“IRS” means the Internal Revenue Service.

“JOBS Act” means the Jumpstart Our Business Startups Act of 2012, as amended.

“Latest Balance Sheet” has the meaning set forth in Section 3.4(a).

14 

“Law” means any federal, state, local, foreign, national or supranational statute, law (including common law), act, statute, ordinance, treaty, rule, code, order, judgment, injunction, award, decree, writ, regulation or other binding directive or guidance issued, promulgated or enforced by a Governmental Entity having jurisdiction over a given matter.

“Leased Real Property” has the meaning set forth in Section 3.18(b).

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

“Lien” means any mortgage, pledge, security interest, encumbrance, claim, option, lease, sublease, lien, license or sub-license, charge, or other encumbrance or interest of any kind, whether consensual, statutory or otherwise (including, in the case of any Equity Securities, any voting, transfer or similar restrictions).

“Marks” has the meaning set forth in the definition of Intellectual Property Rights.

“Material Contracts” has the meaning set forth in Section 3.7(a).

“Material Permits” has the meaning set forth in Section 3.6.

“Merger Proposal” has the meaning set forth in Section 5.7.

“Merger Sub 1” has the meaning set forth in the introductory paragraph to this Agreement.

“Merger Sub 2” has the meaning set forth in the introductory paragraph to this Agreement.

“Multiemployer Plan” has the meaning set forth in Section (3)37 or Section 4001(a)(3) of ERISA.

“Nasdaq” means The Nasdaq Stock Market LLC.

15 

“Net Equity Value” means (a) an amount equal to $1,577,289,500 minus (b) the Unpaid Company Expenses in excess of $30,000,000, minus (c) the Preferred Unit Redemption Amount plus (d) the product of (i) the Additional Subject Shares (as defined in the Sponsor Letter Agreement), if any, and (ii) $10.00.

“Non-Party Affiliate” has the meaning set forth in Section 9.13.

“NYSE” has the meaning set forth in Section 5.10.

“Off-the-Shelf Software” means any Software that is made generally and widely available to the public on a commercial basis and is licensed to any of the Group Companies on a non-exclusive basis under standard terms and conditions for a one-time license fee of less than $100,000 or an ongoing licensee fee of less than $50,000 per year.

“Officers” has the meaning set forth in Section 5.15(a).

“Order” means any outstanding writ, order, judgment, injunction, decision, determination, award, ruling, subpoena, verdict or decree entered, issued or rendered by any Governmental Entity.

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

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

“Owned Real Property” means all real property owned by any Group Company, together with all structures, facilities, fixtures, systems, improvements and items of property previously or hereafter located thereon, or attached or appurtenant thereto, and all easements, rights and appurtenances relating to the foregoing.

“Parties” has the meaning set forth in the introductory paragraph to this Agreement.

“Patents” has the meaning set forth in the definition of Intellectual Property Rights.

“Payoff Amount” has the meaning set forth in Section 5.19(b).

“Payoff Letters” has the meaning set forth in Section 5.19(b).

“PCAOB” means the Public Company Accounting Oversight Board.

16 

 

“Permits” means any approvals, authorizations, clearances, licenses, registrations, permits, Regulatory Permits or certificates of a Governmental Entity.

 

“Permitted Liens” means (a) mechanic’s, materialmen’s, carriers’, repairers’ and other similar statutory Liens arising or incurred in the ordinary course of business for amounts that are not yet delinquent or are being contested in good faith by appropriate proceedings and for which sufficient reserves have been established in accordance with GAAP, (b) statutory Liens for Taxes, assessments or other governmental charges not yet due and payable or which are being contested in good faith by appropriate proceedings and for which sufficient reserves have been established in accordance with GAAP, (c) non-monetary encumbrances and restrictions on Real Property (including easements, covenants, conditions, rights of way and similar restrictions) that do not prohibit or materially interfere with any of the Group Companies’ use or occupancy of such Real Property or the value thereof, (d) zoning, building codes and other land use Laws regulating the use or occupancy of Real Property or the activities conducted thereon which are imposed by any Governmental Entity having jurisdiction over such real property and which are not violated by the use or occupancy of such Real Property or the operation of the businesses of the Group Companies and do not prohibit or materially interfere with any of the Group Companies’ use or occupancy of such Real Property or the value thereof, (e) cash deposits or cash pledges to secure the payment of workers’ compensation, unemployment insurance, social security benefits or obligations arising under similar Laws or to secure the performance of public or statutory obligations, surety or appeal bonds, and other obligations of a like nature, in each case in the ordinary course of business and which are not yet due and payable, (f) grants by any Group Company of non-exclusive rights in non-material Intellectual Property Rights in the ordinary course of business consistent with past practice and (g) other Liens that do not materially and adversely affect the value, use or operation of the asset (excluding Real Property) subject thereto.

 

“Person” means an individual, partnership, corporation, limited liability company, joint stock company, unincorporated organization or association, trust, joint venture or other similar entity, whether or not a legal entity.

 

“Personal Data” means any data or information relating to an identified natural person that is regulated by the Privacy Laws.

 

“PIPE Financing” has the meaning set forth in the recitals to this Agreement.

 

“PIPE Financing Amount” has the meaning set forth in the recitals to this Agreement.

 

“PIPE Investors” has the meaning set forth in the recitals to this Agreement.

 

“Pre-Closing SilverBox Holders” means the holders of SilverBox Shares at any time prior to the Effective Time.

 

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

 

“Preferred Unit Redemption Amount” means the aggregate amount payable for the redemption of the issued and outstanding Existing Company Preferred Units as of the Closing Date based on the redemption price as set forth in the Company LLC Agreement, including the amount of any change of control or redemption fees, premium or other amounts payable in connection therewith.

 

17

 

 

“Privacy and Data Security Policies” has the meaning set forth in Section 3.23(a).

 

“Privacy Laws” means Laws relating to the Processing or protection of Personal Data that apply to the Group Companies.

 

“Privacy Policies” means each external or internal, past or present, policy and/or notice, relating to Personal Data, including privacy policies and terms of use.

 

“Proceeding” means any lawsuit, litigation, action, audit, examination, claim, complaint, charge, investigation, proceeding, suit or arbitration (in each case, whether civil, criminal or administrative and whether public or private) pending by or before or otherwise involving any Governmental Entity.

 

“Process” (or “Processing” or “Processes”) means the collection, use, storage, processing, recording, distribution, transfer, import, export, protection (including security measures), disposal or disclosure or other activity regarding data (whether electronically or in any other form or medium).

 

“Prospectus” has the meaning set forth in Section 9.18.

 

“Pubco” has the meaning set forth in the introductory paragraph to this Agreement.

 

“Pubco Board” has the meaning set forth in Section 5.15(a).

 

“Pubco Certificate of Merger” has the meaning set forth in Section 2.2(a)(i).

 

“Pubco Class A Share” has the meaning set forth in the recitals to this Agreement.

 

“Pubco Class B Share” has the meaning set forth in the recitals to this Agreement.

 

“Pubco Class C Share” has the meaning set forth in the recitals to this Agreement.

 

“Pubco Common Stock” has the meaning set forth in the recitals to this Agreement.

 

“Pubco Equity Incentive Plan” has the meaning set forth in Section 5.17.

 

“Pubco Outstanding Shares” means a number equal to (a) the quotient of (i) the Aggregate Cash Raised divided by (ii) ten, plus (b) 8,625,000.

 

“Pubco Plan of Merger” has the meaning set forth in Section 2.2(a)(i).

 

“Pubco Warrant” has the meaning set forth in Section 2.1(d).

 

“Public Shareholders” has the meaning set forth in Section 9.18.

 

18

 

 

“Public Software” means any Software that contains, includes, incorporates, or has instantiated therein, or is derived in any manner (in whole or in part) from, any Software that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including under any terms or conditions that impose any requirement that any Software using, linked with, incorporating, distributed with or derived from such Public Software (a) be made available or distributed in source code form; (b) be licensed for purposes of making derivative works; or (c) be redistributable at no, or a nominal, charge.

 

“Real Property” means, collectively, the Leased Real Property and the Owned Real Property.

 

“Real Property Laws” has the meaning set forth in Section 3.18(e).

 

“Real Property Leases” means all leases (including any ground lease), sub-leases, licenses or other agreements, in each case, pursuant to which any Group Company leases or sub-leases any real property (including all amendments, extensions, renewals, guaranties, estoppels, subordination, non-disturbance and attornment agreements, and other agreements with respect thereto).

 

“Reference Time” means 11:59 p.m. Eastern Time on the date prior to the Closing Date.

 

“Registered Intellectual Property” means all issued Patents, pending Patent applications, registered Marks, pending applications for registration of Marks, registered Copyrights, pending applications for registration of Copyrights and Internet domain name registrations.

 

“Registration Statement / Proxy Statement” means a registration statement on Form S-4 relating to the transactions contemplated by this Agreement and the Ancillary Documents and containing a prospectus of Pubco and proxy statement of SilverBox, including any amendment or supplement thereto.

 

“Regulatory Permits” means all licenses, waivers, permits, enrollments, certifications, authorizations, approvals, franchises, registrations, accreditations, letters of non-reviewability, certificates of need, consents, supplier or provider numbers, qualifications, operating authority, and other such Permits granted by any such Governmental Entity to any Group Company.

 

“Representatives” means with respect to any Person, such Person’s Affiliates and its and such Affiliates’ respective directors, managers, officers, employees, accountants, consultants, advisors, attorneys, agents and other representatives.

 

“Required Company Financial Statements” means, collectively, (a) the audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 and the related audited consolidated statements of operations and comprehensive loss, members’ deficit and cash flows of the Group Companies for each of the twelve month periods then ended, and (b) the unaudited consolidated balance sheets of the Group Companies as of June 30, 2021, and the related unaudited consolidated statements of operations and comprehensive loss, members’ deficit and cash flows of the Group Companies for each of the nine months ended June 30, 2020 and June 30, 2021, in each case, prepared in accordance with Section 3.4(b) and delivered pursuant to Section 5.16.

 

19

 

 

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

 

“Required Transaction Proposals” means, collectively, the Business Combination Proposal, the Charter Proposal and the Merger Proposal.

 

“Sanctions and Export Control Laws” means any applicable Law related to (a) import and export controls, including the U.S. Export Administration Regulations, (b) economic sanctions, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the European Union, any European Union Member State, the United Nations, and Her Majesty’s Treasury of the United Kingdom or (c) anti-boycott measures.

 

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

 

“Schedules” means, collectively, the Company Disclosure Schedules and the SilverBox Disclosure Schedules.

 

“SEC” means the U.S. Securities and Exchange Commission.

 

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

 

“Securities Laws” means Federal Securities Laws and other applicable foreign and domestic securities or similar Laws.

 

“Security Incident” has the meaning set forth in Section 3.23(d).

 

“Signing Press Release” has the meaning set forth in Section 5.4(b).

 

“SilverBox” has the meaning set forth in the introductory paragraph to this Agreement.

 

“SilverBox Acquisition Proposal” means (a) any transaction or series of related transactions under which SilverBox or any of its controlled Affiliates, directly or indirectly, (i) acquires or otherwise purchases any other Person, (ii) engages in a business combination with any other Person or (iii) acquires or otherwise purchases all or a material portion of the assets or businesses of any other Person (in the case of each of clauses (i) through (iii), whether by merger, consolidation, recapitalization, purchase or issuance of equity securities, tender offer or otherwise) or (b) any equity, debt or similar investment in SilverBox or any of its controlled Affiliates. Notwithstanding the foregoing or anything to the contrary herein, none of this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby shall constitute a SilverBox Acquisition Proposal.

 

“SilverBox Board” has the meaning set forth in the recitals to this Agreement.

 

“SilverBox Board Recommendation” has the meaning set forth in Section 5.7.

 

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“SilverBox Certificate of Incorporation” means that certain amended and restated certificate of incorporation of SilverBox, dated February 25, 2021.

 

“SilverBox Class A Share” means a share of Class A common stock of SilverBox, par value $0.0001 per share.

 

“SilverBox Class B Share” means a share of Class B common stock of SilverBox, par value $0.0001 per share.

 

“SilverBox Class C Share” means a share of Class C common stock of SilverBox, par value $0.0001 per share.

 

“SilverBox D&O Persons” has the meaning set forth in Section 5.13(a).

 

“SilverBox Disclosure Schedules” means the disclosure schedules to this Agreement delivered to the Company by SilverBox on the date of this Agreement.

 

“SilverBox Expenses” means, as of any time of determination, the aggregate amount of fees, expense, commissions or other amounts incurred by or on behalf of, or otherwise payable by, whether or not due, a SilverBox Party or a SilverBox Related Party in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of its covenants or agreements in this Agreement or any Ancillary Document 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 SilverBox Party or a SilverBox Related Party, (b) any deferred underwriting fees and other deferred expenses of any SilverBox Party or a SilverBox Related Party, (c) any other fees, expenses, commissions or other amounts that are expressly allocated to any SilverBox Party or a SilverBox Related Party pursuant to this Agreement or any Ancillary Document (including fees and expenses related to the filing of the Registration Statement / Proxy Statement), (d) premium, costs and expenses relating to “tail” coverage under SilverBox’s directors’ and officers’ liability insurance policies and (e) any amounts under any SilverBox Working Capital Loan. Notwithstanding the foregoing or anything to the contrary herein, SilverBox Expenses shall not include any Company Expenses.

 

“SilverBox Financial Statements” means all of the financial statements of SilverBox included in the SilverBox SEC Reports.

 

“SilverBox Fundamental Representations” means the representations and warranties set forth in Section 4.1 (Organization and Qualification), Section 4.2 (Authority), Section 4.4 (Brokers) and Section 4.6 (Capitalization of the SilverBox Parties).

 

“SilverBox Liabilities” means, as of any time of determination, the aggregate amount of Liabilities of SilverBox that would be accrued on a balance sheet in accordance with GAAP, whether or not such Liabilities are due and payable as of such time. Notwithstanding the foregoing or anything to the contrary herein, SilverBox Liabilities shall not include any SilverBox Expenses.

 

“SilverBox 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, individually or in the aggregate, a material adverse effect on the ability of any SilverBox Party to consummate the transactions contemplated by this Agreement in accordance with the terms of this Agreement. Notwithstanding the foregoing, the amount of the SilverBox Shareholder Redemption or failure to obtain the SilverBox Shareholder Approval will not be deemed to be a SilverBox Material Adverse Effect.

 

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“SilverBox Non-Party Affiliates” means, collectively, each SilverBox Related Party and each of the former, current or future Affiliates, Representatives, successors or permitted assigns of any SilverBox Related Party (other than, for the avoidance of doubt, any SilverBox Party).

 

“SilverBox Parties” means, collectively, SilverBox, Pubco, Merger Sub 1 and Merger Sub 2.

 

“SilverBox Related Party” shall mean any Affiliate of either SilverBox or the Sponsor, or any of their respective current, former or future directors, officers, general or limited partners, direct or indirect equityholders (including the Sponsor), members, managers, controlling persons, employees, Immediate Family members or other representatives and the respective successors and assigns of any of the foregoing Persons.

 

“SilverBox Related Party Transactions” has the meaning set forth in Section 4.10.

 

“SilverBox SEC Reports” has the meaning set forth in Section 4.8.

 

“SilverBox Shareholder Approval” means, collectively, the Required SilverBox Shareholder Approval and the Other SilverBox Shareholder Approval.

 

“SilverBox Shareholder Redemption” means the right of the holders of SilverBox Class A Shares to redeem all or a portion of their SilverBox Class A Shares (in connection with the transactions contemplated by this Agreement or otherwise) as set forth in Governing Documents of SilverBox.

 

“SilverBox Shareholders Meeting” has the meaning set forth in Section 5.7.

 

“SilverBox Shares” means, collectively, the SilverBox Class A Shares and the SilverBox Class B Shares.

 

“SilverBox Warrants” means each warrant to purchase one SilverBox Class A Share at an exercise price of $11.50 per share, subject to adjustment in accordance with the Warrant Agreement (including, for the avoidance of doubt, each such warrant held by the Sponsor).

 

“SilverBox Working Capital Loan” means any loan made to SilverBox by any of the Sponsor, an Affiliate of the Sponsor or any of SilverBox’s officers or directors, and evidenced by a promissory note or other Contract, for the purpose of financing expenses incurred in connection with a business combination.

 

“Software” shall mean any and all (a) computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code; (b) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise; (c) descriptions, flowcharts and other work product used to design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons; and (d) all documentation, including user manuals and other training documentation, related to any of the foregoing.

 

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“Sponsor” has the meaning set forth in the recitals to this Agreement.

 

“Sponsor Letter Agreement” has the meaning set forth in the recitals to this Agreement.

 

“Straddle Period” means any taxable period that begins on or before (but does not end on) the Closing Date.

 

“Subscription Agreement” has the meaning set forth in the recitals to this Agreement.

 

“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership or other legal entity of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof, or (b) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such Person or a combination thereof and for this purpose, a Person or Persons own a majority ownership interest in such a business entity (other than a corporation) if such Person or Persons shall be allocated a majority of such business entity’s gains or losses or shall be a, or control any, managing director or general partner of such business entity (other than a corporation). The term “Subsidiary” shall include all Subsidiaries of such Subsidiary.

 

“Tax” or “Taxes” means all net, adjusted, or gross income, gross proceeds, payroll, employment, excise, severance, stamp, occupation, windfall or excess profits, profits, customs, capital stock, withholding, social security, unemployment, disability, real property, personal property (tangible and intangible), sales, use, transfer, value added, alternative or add-on minimum, capital gains, user, leasing, lease, natural resources, ad valorem, franchise, capital, estimated, goods and services, fuel, registration, recording, premium, turnover, environmental or other taxes, assessments, duties or similar charges, in each case, in the nature of a tax, imposed by a Governmental Entity, including all interest, penalties and additions imposed with respect to (or in lieu of) the foregoing by any Governmental Entity, and, in each case, whether disputed or not.

 

“Tax Authority” means any Governmental Entity responsible for the collection or administration of Taxes or Tax Returns.

 

“Tax Receivable Agreement” has the meaning set forth in the recitals to this Agreement.

 

“Tax Return” means returns, declarations, reports, claims for refund, information returns, elections, disclosures, statements, or other documents (including any related or supporting schedules, attachments, statements or information, and including any amendments thereof) filed or required to be filed with a Governmental Entity in connection with, or relating to, Taxes.

 

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“Termination Date” has the meaning set forth in Section 8.1(d).

 

“Top Customers” has the meaning set forth in Section 3.20(a).

 

“Top Vendors” has the meaning set forth in Section 3.20(a).

 

“Transaction Litigation” has the meaning set forth in Section 5.2(d).

 

“Transaction Proposals” has the meaning set forth in Section 5.7.

 

“Transaction Support Agreements” has the meaning set forth in the recitals to this Agreement.

 

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

 

“Trust Account” has the meaning set forth in Section 9.18.

 

“Trust Account Released Claims” has the meaning set forth in Section 9.18.

 

“Trust Agreement” has the meaning set forth in Section 4.9.

 

“Trustee” has the meaning set forth in Section 4.9.

 

“Unpaid Company Expenses” means the Company Expenses that are unpaid as of the Reference Time.

 

“WARN” means the Worker Adjustment and Retraining Notification Act of 1988, as well as analogous applicable foreign, state or local Laws.

 

“Warrant Agreement” means the Warrant Agreement, dated as of February 25, 2021, by and between SilverBox and the Trustee.

 

“Warrant Assumption Agreement” has the meaning set forth in Section 2.2(b)(iv).

 

“Willful Breach” means a material breach that is a consequence of an act undertaken or a failure to act by the breaching party with the knowledge that the taking of such act or such failure to act would, or would reasonably be expected to, constitute or result in a breach of this Agreement.

 

Article 2
TRANSACTIONS

 

Section 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)               Amendment and Restatement of SilverBox Certificate of Incorporation and Authorization of Class C Shares. On the Business Day immediately preceding the date on which the Closing occurs, SilverBox shall (i) amend and restate the SilverBox Certificate of Incorporation to be substantially in the form attached hereto as Exhibit E (the “Amended and Restated SilverBox Certificate of Incorporation”), which shall provide for, and include the terms of, the SilverBox Class C Shares, (ii) file the Amended and Restated SilverBox Certificate of Incorporation with the Secretary of State of the State of Delaware and (iii) authorize and issue a number of SilverBox Class C Shares sufficient to consummate the PIPE Financing and the FPA Financing.

 

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(b)               PIPE Financing. Promptly after taking the actions set forth in Section 2.1(a), SilverBox shall consummate the PIPE Financing pursuant to and in accordance with the terms of the applicable Subscription Agreements.

 

(c)               FPA Financing. Promptly after taking the actions set forth in Section 2.1(a), SilverBox shall consummate the FPA Financing pursuant to and in accordance with the terms of the Forward Purchase Agreement.

 

(d)               Mergers.

 

(i)                 At the Pubco Merger Effective Time, on the terms and subject to the conditions set forth herein and in accordance with the applicable provisions of the DGCL and the DLLCA, SilverBox and Merger Sub 1 shall consummate the Pubco Merger, pursuant to which SilverBox shall be merged with and into Merger Sub 1, following which the separate corporate existence of SilverBox shall cease and Merger Sub 1 shall continue as Merger Sub 1 after the Pubco Merger, such entity being a wholly owned subsidiary of Pubco (provided that references to SilverBox for periods after the Pubco Merger Effective Time shall include Pubco).

 

(ii)              At the Blocker Merger Effective Time, on the terms and subject to the conditions set forth herein and in accordance with the applicable provisions of the DGCL and the DLLCA, Merger Sub 2 and Blocker Corp shall consummate the Blocker Merger, pursuant to which Merger Sub 2 shall be merged with and into Blocker Corp, following which the separate corporate existence of Merger Sub 2 shall cease and Blocker Corp shall continue as Blocker Corp after the Blocker Merger and as a direct, wholly owned subsidiary of Merger Sub 1.

 

(e)               Amendment and Restatement of the Company LLC Agreement. On the Closing Date, following the Pubco Merger and Blocker Merger and simultaneously with the consummation of the Business Combination, the Company shall amend and restate the Company LLC Agreement to be the Amended and Restated Company LLC Agreement, pursuant to which (i) the issued and outstanding Existing Company Units shall be recapitalized into (A) an aggregate number of Company Common Units equal to the Fully Diluted Company Units and (B) 20,000,000 Company Restricted Units and (ii) the Company shall be authorized to issue an additional 1,241,250 Company Restricted Units.

 

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(f)                Business Combination.

 

(i)                 On the terms and subject to the conditions set forth in this Agreement and in accordance with the DLLCA, promptly following the consummation of the Pubco Merger and the Blocker Merger, the Parties shall consummate the Business Combination, pursuant to which (A) the Company shall issue to Pubco the number of Company Common Units determined pursuant to Section 2.3(b) (as adjusted pursuant to the Sponsor Letter Agreement) and 1,241,250 Company Restricted Units in exchange for (1) the delivery by Pubco to the Company, via wire transfer of immediately available funds, an amount in cash equal to the Aggregate Closing PIPE Proceeds and (2) the delivery by Merger Sub 1 to the Company, via wire transfer of immediately available funds, an amount in cash equal to the aggregate cash proceeds available for release to SilverBox from the Trust Account in connection with the transactions contemplated hereby (after, for the avoidance of doubt, giving effect to all of the SilverBox Shareholder Redemptions); (B) Pubco shall be admitted as the managing member of the Company; (C) the Company shall redeem all of the issued and outstanding Existing Company Preferred Units (other than the Existing Company Preferred Units held by Blocker Corp) and deliver to the holders thereof in exchange therefor, on a pro rata basis, via wire transfer of immediately available funds, an amount in cash equal to the Preferred Unit Redemption Amount; (D) the Company shall, in partial redemption of Company Common Units collectively held by the holders of Existing Company Common Units and Existing Company Incentive Units (other than the Company Common Units held by Blocker Corp), deliver to such holders, via wire transfer of immediately available funds, on a pro rata basis, an amount in cash equal to the Common Unit Redemption Amount; (E) the Company shall distribute to each holder of Existing Company Common Units or Existing Company Incentive Units (other than the Company Common Units held by Blocker Corp) a number of Pubco Class B Shares equal to the number of Company Common Units held by such holder after giving effect to the partial redemption described in clause (D) of this Section 2.1(f)(i), with such distribution to be in accordance with the Amended and Restated Company LLC Agreement and, if applicable, any award agreements evidencing the Existing Company Incentive Units (including but not limited to vesting terms); and (F) the Existing Company Unitholders shall have the right (but not the obligation) to exchange Company Common Units for Pubco Class A Shares at the Closing without any further action by any Person.

 

(ii)              The Business Combination shall become effective on the date and time as is agreed by SilverBox and the Company (the time the Business Combination becomes effective being referred to herein as the “Effective Time”).

 

Section 2.2           Effective Times of the Mergers; Effects of the Mergers.

 

(a)               Effective Times of the Mergers.

 

(i)                 Pubco Merger Effective Time. On the terms and subject to the conditions set forth herein, on the Closing Date, SilverBox, Pubco and Merger Sub 1 shall cause the Pubco Merger to be consummated by (A) filing the certificate of merger in the form to be agreed to by SilverBox and the Company (the “Pubco Certificate of Merger”) with the Secretary of State of the State of Delaware in accordance with the applicable provisions of the DGCL and the DLLCA and (B) executing a plan of merger in the form to be agreed to by SilverBox and the Company (the “Pubco Plan of Merger”) and filing such Pubco Plan of Merger and other documents required under the DGCL and the DLLCA with the Secretary of State of the State of Delaware in accordance with the applicable provisions of the DGCL and the DLLCA (the time of the latter of such filings, or such later time as may be specified in the Pubco Certificate of Merger, being the “Pubco Merger Effective Time”).

 

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(ii)              Blocker Merger Effective Time. On the terms and subject to the conditions set forth herein, on the Closing Date immediately following the Pubco Merger Effective Time, SilverBox, Blocker Corp and Merger Sub 2 shall cause the Blocker Merger to be consummated by (A) filing the certificate of merger in the form to be agreed to by SilverBox and the Company (the “Blocker Certificate of Merger”) with the Secretary of State of the State of Delaware in accordance with the applicable provisions of the DGCL and the DLLCA, (B) executing a plan of merger in the form to be agreed to by SilverBox and the Company (the “Blocker Plan of Merger”) and filing such Blocker Plan of Merger and other documents required under the DGCL and the DLLCA with the Secretary of State of the State of Delaware in accordance with the applicable provisions of the DGCL and the DLLCA and (C) distributing any and all of Blocker Corp’s available cash to the Blocker Corp Shareholders (the time of the latter of such events, or such later time as may be specified in the Blocker Certificate of Merger, being the “Blocker Merger Effective Time”). Notwithstanding anything in this Agreement to the contrary, the Blocker Merger Effective Time shall not occur prior to December 21, 2021 unless otherwise consented to in writing by Blocker Corp in its sole discretion.

 

(b)               Effect of the Pubco Merger. On the terms and subject to the conditions set forth herein, at the Pubco Merger Effective Time, by virtue of the Pubco Merger and without any further action on the part of any Party or the holders of any securities of SilverBox, the following shall occur:

 

(i)                 SilverBox Class A Shares. Each SilverBox Class A Share issued and outstanding immediately prior to the Pubco Merger Effective Time (other than those described in Section 2.2(b)(v)) shall be automatically cancelled, extinguished and converted into one Pubco Class A Share, following which time all SilverBox Class A Shares shall cease to be outstanding and shall automatically be canceled and extinguished and shall cease to exist by virtue of the Pubco Merger and without any action on the part of any Party or the holders of SilverBox Class A Shares. The holders of SilverBox Class A Shares outstanding immediately prior to the Pubco Merger Effective Time shall cease to have any rights with respect to such shares, except as expressly provided herein or by Law. Each certificate previously evidencing SilverBox Class A Shares (other than those described in Section 2.2(b)(v) below), if any, shall thereafter represent only the right to receive the same number of Pubco Class A Shares and shall be exchanged for a certificate (if requested) representing the same number of Pubco Class A Shares upon the surrender of such certificate in accordance with Section 2.2(b)(vi).

 

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(ii)              SilverBox Class B Shares. Each SilverBox Class B Share issued and outstanding immediately prior to the Pubco Merger Effective Time (other than those described in Section 2.2(b)(v)) shall be automatically cancelled, extinguished and converted into one Pubco Class A Share, following which time all SilverBox Class B Shares shall cease to be outstanding and shall automatically be canceled and extinguished and shall cease to exist by virtue of the Pubco Merger and without any action on the part of any Party or the holders of SilverBox Class B Shares. The holders of SilverBox Class B Shares outstanding immediately prior to the Pubco Merger Effective Time shall cease to have any rights with respect to such shares, except as expressly provided herein or by Law. Each certificate previously evidencing SilverBox Class B Shares (other than those described in Section 2.2(b)(v) below), if any, shall thereafter represent only the right to receive the same number of Pubco Class A Shares and shall be exchanged for a certificate (if requested in writing) representing the same number of Pubco Class A Shares upon the surrender of such certificate in accordance with Section 2.2(b)(vi).

 

(iii)            SilverBox Class C Shares. Each SilverBox Class C Share issued and outstanding immediately prior to the Pubco Merger Effective Time (other than those described in Section 2.2(b)(v)) shall be automatically cancelled, extinguished and converted into one Pubco Class A Share, following which time all SilverBox Class C Shares shall cease to be outstanding and shall automatically be canceled and extinguished and shall cease to exist by virtue of the Pubco Merger and without any action on the part of any Party or the holders of SilverBox Class C Shares. The holders of SilverBox Class C Shares outstanding immediately prior to the Pubco Merger Effective Time shall cease to have any rights with respect to such shares, except as expressly provided herein or by Law. Each certificate previously evidencing SilverBox Class C Shares (other than those described in Section 2.2(b)(v) below), if any, shall thereafter represent only the right to receive the same number of Pubco Class A Shares and shall be exchanged for a certificate (if requested in writing) representing the same number of Pubco Class A Shares upon the surrender of such certificate in accordance with Section 2.2(b)(vi).

 

(iv)             SilverBox Warrants. Each SilverBox Warrant issued and outstanding immediately prior to the Pubco Merger Effective Time will automatically become a Pubco Warrant exercisable for one Pubco Class A Share at the same exercise price per share and on the same terms in effect immediately prior to the Pubco Merger Effective Time, and the rights and obligations of SilverBox under the Warrant Agreement will be irrevocably assigned and assumed by Pubco. As of immediately prior the Pubco Merger Effective Time, Pubco shall enter into a warrant assumption agreement, substantially in the form attached hereto as Exhibit F (the “Warrant Assumption Agreement”), pursuant to which Pubco will assume the obligations of SilverBox under the Warrant Agreement.

 

(v)               Cancellation of SilverBox Shares Owned by SilverBox. If there are any shares of SilverBox that are owned by SilverBox or any Subsidiary of SilverBox, or that are held as treasury shares, in each case as of the Pubco Merger Effective Time, such shares shall automatically be canceled, retired and extinguished and shall cease to exist, without any conversion thereof or payment therefor.

 

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(vi)             Transfers of Ownership. If any certificate for securities of SilverBox is to be issued in a name other than that in which the certificate surrendered in exchange therefor is registered, it shall be a condition of the issuance thereof that the certificate so surrendered shall be properly endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer and that the person requesting such exchange shall have paid to Pubco or any agent designated by it any transfer or other Taxes required by reason of the issuance of a certificate for securities of Pubco in any name other than that of the registered holder of the certificate surrendered, or established to the satisfaction of Pubco or any agent designated by it that such Tax has been paid or is not payable.

 

(vii)            No Liability. Notwithstanding anything to the contrary in this Section 2.2(b), none of SilverBox, Pubco or any other Party shall be liable to any Person for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar Law.

 

(viii)          General Effect. Without limiting the generality of the foregoing, and subject thereto, at the Pubco Merger Effective Time, all the property, rights, privileges, agreements, powers and franchises, debts, liabilities, duties and obligations of SilverBox shall become the property, rights, privileges, agreements, powers and franchises, debts, liabilities, duties and obligations of Merger Sub 1.

 

(c)               Effect of the Blocker Merger. On the terms and subject to the conditions set forth herein, at the Blocker Merger Effective Time, by virtue of the Blocker Merger and without any further action on the part of any Party or the holders of any securities of Blocker Corp, the following shall occur:

 

(i)                 Blocker Corp Shares. Each Blocker Corp Share issued and outstanding immediately prior to the Blocker Merger Effective Time (other than those described in Section 2.2(c)(ii)) shall be automatically cancelled and extinguished in exchange for the right to receive the applicable portion of the Blocker Merger Consideration.

 

(ii)               Cancellation of Blocker Corp Shares Owned by Blocker Corp. If there are any shares of Blocker Corp that are owned by Blocker Corp, or that are held as treasury shares, in each case as of the Blocker Merger Effective Time, such shares shall automatically be canceled, retired and extinguished and shall cease to exist, without any conversion thereof or payment therefor.

 

(iii)            No Liability. Notwithstanding anything to the contrary in this Section 2.2(c), none of the Blocker Corp Shareholders, Pubco or any other Party shall be liable to any Person for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar Law.

 

(iv)             General Effect. Without limiting the generality of the foregoing, and subject thereto, at the Blocker Merger Effective Time, all the property, rights, privileges, agreements, powers and franchises, debts, liabilities, duties and obligations of Merger Sub 2 shall become the property, rights, privileges, agreements, powers and franchises, debts, liabilities, duties and obligations of Blocker Corp.

 

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Section 2.3           Closing of the Transactions Contemplated by this Agreement.

 

(a)               The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place electronically by exchange of the closing deliverables on the third Business Day following the satisfaction (or, to the extent permitted by applicable Law, waiver) of the conditions set forth in Article 7 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to satisfaction or waiver of such conditions) (the “Closing Date”) or at such other place, date or time as SilverBox and the Company may agree in writing.

 

(b)               On the Closing Date, in accordance with Section 2.1(f)(i), (i) Pubco and Merger Sub 1 shall collectively contribute an aggregate amount in cash equal to the Aggregate Cash Raised (less the amount of the cash portion of the Blocker Merger Consideration) to the Company and (ii) in exchange for the contribution of the Aggregate Cash Raised (less the amount of the cash portion of the Blocker Merger Consideration) pursuant to the foregoing clause (i), the Company shall issue and deliver to Pubco an aggregate number of Company Common Units equal to (i) the Fully Diluted Company Units, minus (ii) the Continuing Company Units.

 

Section 2.4           Deliverables.

 

(a)               At the Closing, Blocker Corp and the Company, as applicable, shall deliver, or cause to be delivered, to SilverBox:

 

(i)               a counterpart to each Ancillary Document to which such Person is to be a party, duly executed by a duly authorized representative of such Person;

 

(ii)              a certificate, executed by a duly authorized officer of the Company and dated as of the Closing, solely in his or her capacity as such and not in his or her personal capacity, stating that the conditions specified in Section 7.2(a), Section 7.2(b) and Section 7.2(c) have been satisfied;

 

(iii)             a properly completed and duly executed IRS Form W-9 from each Existing Company Unitholder, including Blocker Corp (each, a “Closing Tax Form”); and

 

(iv)             a duly executed certificate from Blocker Corp, dated as of the Closing Date, complying with the provisions of Treasury Regulations Section 1.1445-2(c)(3), together with a notice to be provided to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2) (the “FIRPTA Certificate”).

 

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(b)               At the Closing, SilverBox, Pubco and Merger Sub 1, as applicable, shall deliver, or cause to be delivered, to the Company:

 

(i)               a counterpart to each Ancillary Document to which such Person is to be a party, duly executed by a duly authorized representative of such Person;

 

(ii)              a certificate, executed by a duly authorized officer of SilverBox and dated as of the Closing, solely in his or her capacity as such and not in his or her personal capacity, stating that the conditions specified in Section 7.3(a) and Section 7.3(b) have been satisfied;

 

(iii)            an aggregate amount in cash equal to the Aggregate Cash Raised less the amount of the cash portion of the Blocker Merger Consideration;

 

(iv)             such number of Pubco Class B Shares as provided in Section 2.1(f)(i); and

 

(v)              from each of SilverBox and Pubco, (A) a duly executed certificate, dated as of the Closing Date, complying with the provisions of Treasury Regulations Section 1.1445-2(c)(3), together with a notice to be provided to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2) and (B) a properly completed and duly executed IRS Form W-9.

 

(c)               At the Closing, the Company shall deliver to Pubco, such number of Company Common Units as provided in Section 2.3(b).

 

(d)              At the Closing, the Company shall pay or reimburse, or cause to be paid or reimbursed, all Unpaid Company Expenses and all SilverBox Expenses.

 

(e)              At the Closing, the Company shall repay in full the Closing Date Indebtedness pursuant to the Payoff Letters.

 

Section 2.5           Withholding. The Parties, the Group Companies and any other applicable withholding agent hereunder shall be entitled to deduct and withhold (or cause to be deducted and withheld) from any amount payable pursuant to this Agreement such amounts as are required to be deducted and withheld under applicable Tax Law; provided that, if SilverBox, Pubco, Merger Sub 1 or any of their respective Affiliates, or any party acting on their behalf, determines that any payment hereunder to the Company, any Existing Company Unitholder, or any Blocker Corp Shareholder is expected to be subject to deduction and/or withholding, then SilverBox shall use commercially reasonable efforts to provide notice of such withholding and the basis therefor to the Company as soon as reasonably practicable after such determination and no later than five Business Days prior to the applicable payment (other than in respect of any compensatory amount or in respect of any withholding attributable to a failure of such payee to timely provide an applicable Closing Tax Form or attributable to any failure of Blocker Corp to provide the FIRPTA Certificate) and cooperate in good faith to enable the payee to reduce or eliminate any such deduction or withholding to the extent permitted by applicable Law (including through the request and provision of any statements, forms or other documents). To the extent that amounts required to be deducted and withheld from any amount payable pursuant to this Agreement under applicable Tax Law are so withheld or deducted and are remitted to the applicable Governmental Entity, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. Notwithstanding the foregoing, to the extent that any amount payable pursuant to this Agreement needs to be paid to any employee or similar Person of any Group Company that constitutes “wages” or other relevant compensatory amount, such amount shall not be subject to the notification requirement described in the first sentence of this Section 2.5 and shall be deposited in the payroll account of the applicable Group Company and the amounts due to such employee or similar Person (net of any required Tax withholding) shall be paid to such Person pursuant to the next practicable scheduled payroll of the applicable Group Company. The Company shall be entitled to deduct and withhold (or cause to be deducted and withheld) from any amount payable pursuant to this Agreement to any Existing Company Unitholder any amount owing by such Existing Company Unitholder to the Company or that the Company is otherwise entitled to withhold from such Existing Company Unitholder, in each case, pursuant to the Company LLC Agreement (including Sections 4.7, 10.5(b)(ii), and 10.5(b)(iii) of the Company LLC Agreement), and such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

 

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Section 2.6           Closing Statement

 

(a)               At least three Business Days prior to the anticipated Closing Date, the Company shall prepare and deliver to SilverBox (i) a statement (the “Closing Statement”) setting forth the Company’s good faith estimate, together with reasonable supporting detail, of the Net Equity Value (including each component thereof), Common Unit Redemption Amount (including each component thereof, and calculated in accordance with Annex C hereto) and the Preferred Unit Redemption Amount, in each case as of the Closing and calculated in a manner consistent with the applicable definitions and amounts contained in this Agreement and with the books, records and financial statements of the Company, and (ii) a certification, duly executed by the Chief Financial Officer of the Company, that, solely in his or her capacity as an officer of the Company, the information and calculations set forth in the Closing Statement are, and will be as of immediately prior to the Closing, (A) true and correct in all material respects and (B) prepared in accordance with the applicable provisions of this Agreement.

 

(b)               From and after delivery of the Closing Statement, until the date the Closing Statement is deemed final pursuant to this Section 2.6, the Company shall (i) provide SilverBox and its Representatives with reasonable access during reasonable times during normal business hours and upon reasonable prior notice to the books and records of the Group Companies and to senior management personnel of the Company to the extent reasonably requested by SilverBox or any of its Representatives in connection with their review of the Closing Statement, (ii) cooperate with the SilverBox and its Representatives in connection with its review of the Closing Statement and (iii) consider in good faith any potential adjustments raised by SilverBox to the Closing Statement, no later than one (1) Business Day prior to the Closing. Absent manifest error, for all purposes under this Agreement, the final, binding and conclusive calculations of the Closing Statement shall be those reflecting the adjustments (if any) made pursuant to clause (iii) of this Section 2.6(b). All payments to be made pursuant to this Agreement in connection with the consummation of the transactions contemplated hereby shall be calculated and paid on the basis of the amounts set forth in the Closing Statement.

 

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Article 3

REPRESENTATIONS AND WARRANTIES RELATING TO THE GROUP COMPANIES

 

Subject to Section 9.8 and except as set forth in the Company Disclosure Schedules, each of the Company and Blocker Corp (solely as to the representations and warranties set forth in Sections 3.1(a), 3.1(b), 3.2(a), 3.3, 3.5, 3.9(b), 3.11(f), 3.16, 3.17, 3.27, 3.28 and 3.29 to the extent that such representations and warranties relate to Blocker Corp) hereby represents and warrants to the SilverBox Parties as follows:

 

Section 3.1           Organization and Qualification.

 

(a)               Each Group Company and Blocker Corp is a corporation, limited liability company or other applicable business entity duly 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 formation or organization (as applicable). Section 3.1(a) of the Company Disclosure Schedules sets forth the jurisdiction of formation or organization (as applicable) for each Group Company and Blocker Corp. Each Group Company and Blocker Corp has the requisite corporate, limited liability company or other applicable business entity power and authority to own, lease and operate its properties and to carry on its businesses as presently conducted, except where the failure to have such power or authority would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole.

 

(b)               True and complete copies of the Governing Documents of each Group Company and Blocker Corp have been made available to SilverBox, in each case, as amended and in effect as of the date of this Agreement. The Governing Documents of each Group Company and Blocker Corp are in full force and effect, and no Group Company nor Blocker Corp is in breach or violation of any provision set forth in its Governing Documents in any material respect.

 

(c)               Each Group Company is duly qualified or licensed to transact business and is 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) in each jurisdiction in which the property and assets owned, leased or operated by it, or the nature of the business conducted by it, makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed and in good standing would not have a Company Material Adverse Effect.

 

Section 3.2           Capitalization of the Group Companies.

 

(a)               Section 3.2(a) of the Company Disclosure Schedules sets forth a true and complete statement as of the date of this Agreement of (i) the number and class or series (as applicable) of all of the Equity Securities of the Company and Blocker Corp issued and outstanding, and (ii) the identity of the Persons that are the record and beneficial owners thereof. All of the Equity Securities of the Company and Blocker Corp have been duly authorized and validly issued. All of the outstanding Existing Company Units are, and Company Common Units and Company Restricted Units will be upon the adoption of the Amended and Restated Company LLC Agreement, fully paid and non-assessable. The Equity Securities of the Company (1) were not issued in violation of the Governing Documents of the Company or the Company LLC Agreement or any other Contract to which the Company is party or bound, (2) 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 and (3) have been offered, sold and issued in compliance with applicable Law, including Securities Laws. The Company has no outstanding (x) equity appreciation, phantom equity or profit participation rights or (y) options, restricted stock, performance stock units, phantom stock, warrants, purchase rights, subscription rights, conversion rights, exchange rights, calls, puts, rights of first refusal or first offer or other Contracts that could require the Company 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 the Company.

 

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(b)               The Equity Securities of the Company are free and clear of all Liens (other than transfer restrictions under applicable Securities Law or under the Company LLC Agreement). Except for the Company LLC Agreement, there are no voting trusts, proxies or other Contracts to which the Company is a party with respect to the voting or transfer of the Company’s Equity Securities.

 

(c)               Section 3.2(c) of the Company Disclosure Schedules sets forth a true and complete statement of (i) the number and class or series (as applicable) of all of the Equity Securities of each Subsidiary of the Company issued and outstanding and (ii) the identity of the Persons that are the record and beneficial owners thereof. All of the Equity Securities of the Subsidiaries of the Company have been duly authorized and validly issued. The Equity Securities of each Subsidiary of the Company (1) were not issued in violation of the Governing Documents of such Subsidiary or the Company LLC Agreement or any other Contract to which any Group Company is party or bound, (2) 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 and (3) have been offered, sold and issued in compliance with applicable Law, including Securities Laws. There are no outstanding (A) equity appreciation, phantom equity, or profit participation rights or (B) options, restricted stock, phantom stock, performance stock units, warrants, purchase rights, subscription rights, conversion rights, exchange rights, calls, puts, rights of first refusal or first offer or other Contracts that could require any Subsidiary of the Company 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 the Group Companies. There are no voting trusts, proxies or other Contracts with respect to the voting or transfer of any Equity Securities of any Subsidiary of the Company.

 

(d)               There are no outstanding bonds, debentures, notes or other Indebtedness of the Group Companies having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter for which the holders of the Group Companies’ Equity Securities may vote.

 

(e)               Except as set forth on Section 3.2(e) of the Company Disclosure Schedules, none of the Group Companies 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 Security, and none of the Group Companies are a partner or member of any partnership, limited liability company or joint venture.

 

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(f)                Section 3.2(f) of the Company Disclosure Schedules sets forth a list of all Indebtedness of the Group Companies (excluding intercompany Indebtedness among the Company and its Subsidiaries) as of the date of this Agreement, including the debtor and the creditor thereof.

 

(g)               Section 3.2(g) of the Company Disclosure Schedules sets forth a list of all Change of Control Payments of the Group Companies, including (i) the dollar amount of, (ii) the recipient of, and (iii) the Contract giving rise to, such Change of Control Payment.

 

Section 3.3           Authority. The Company and Blocker Corp each has the requisite limited liability company power and authority to execute and deliver this Agreement and each Ancillary Document to which it is or will be a party, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. Subject to the receipt of the Company Unitholder Written Consent and the Blocker Corp Shareholder Written Consent, the execution and delivery of this Agreement, the Ancillary Documents to which the Company and Blocker Corp, as applicable, is or will be a party and the consummation of the transactions contemplated hereby and thereby have been (or, in the case of any Ancillary Document entered into after the date of this Agreement, will be upon execution thereof) duly authorized by all necessary corporate (or other similar) action on the part of the Company and Blocker Corp, as applicable. This Agreement and each Ancillary Document to which the Company or Blocker Corp is or will be a party has been or will be, upon execution thereof, as applicable, duly and validly executed and delivered by the Company or Blocker Corp, as applicable, and constitutes or will constitute, upon execution and delivery thereof, as applicable, a valid, legal and binding agreement of the Company or Blocker Corp (assuming that this Agreement and the Ancillary Documents to which it is or will be a party are or will be upon execution thereof, as applicable, duly authorized, executed and delivered by the other Persons party thereto), as applicable, enforceable against the Company or Blocker Corp, as applicable, in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).

 

Section 3.4           Financial Statements; Undisclosed Liabilities.

 

(a)               The Company has made available to SilverBox a true and complete copy of (1) the audited consolidated balance sheets of the Group Companies as of December 31, 2020 (the “Latest Balance Sheet”) and December 31, 2019 and the related audited consolidated statements of operations and comprehensive loss, members’ deficit and cash flows of the Group Companies for each of the periods then ended and (2) the unaudited consolidated balance sheet of the Group Companies as of June 30, 2021 and the related unaudited consolidated statement of operations and comprehensive loss, members’ deficit and cash flow of the Group Companies for each of the six-month periods ended June 30, 2021 and June 30, 2020 (collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (i) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) in the case of the audited financial statements, was audited in accordance with the standards of the American Institute of Certified Public Accountants and contain an unqualified report of the Group Companies’ auditors, (iv) complies 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), and (v) were prepared from and accurately reflect the books and records of the Group Companies.

 

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(b)               The unaudited consolidated balance sheet of the Group Companies as of September 30, 2021 and the related unaudited consolidated statement of operations and comprehensive loss, members’ deficit and cash flow of the Group Companies for each of the nine-month periods ended September 30, 2021 and September 30, 2020 (the “Company Unaudited Financial Statements”) and the Required Company Financial Statements, in each case, when delivered following the date of this Agreement in accordance with Section 5.16, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto and subject to, in the case of any unaudited financial statements, normal year-end audit adjustments 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 Group Companies as at the dates thereof and for the periods indicated therein, except as otherwise specifically noted therein (subject to, in the case of any unaudited financial statements, normal year-end audit adjustments and the absence of notes thereto), (iii) 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 in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable), (iv) in the case of the audited financial statements included in the Required Company Financial Statements, will be audited in accordance with the standards of the PCAOB by a PCAOB qualified auditor that was independent under Rule 2-01 of Regulation S-X under the Securities Act and contain an unqualified report of the Group Companies’ auditors, and (v) will be prepared from and accurately reflect the books and records of the Group Companies.

 

(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 exceeds $5,000,000 individually or $10,000,000 in the aggregate or is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document 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 Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.

 

(d)               Except as set forth in Section 3.4(d) of the Company Disclosure Schedule, the Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.

 

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(e)Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the formation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies to the Company’s knowledge, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies to the Company’s knowledge or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.

(f)The Group Companies have established and maintain disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange Act). Such disclosure controls and procedures are designed to ensure that material information relating to the Group Companies is made known to the appropriate principal executive officer and its principal financial officer. To the Company’s knowledge, such disclosure controls and procedures are effective in timely alerting the Company’s principal executive officer and principal financial officer to material information required to be included in the Company’s financial statements.

Section 3.5Consents and Requisite Governmental Approvals; No Violations.

(a)No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity is required on the part of the Company or Blocker Corp with respect to the Company’s or Blocker Corp’s execution, delivery or performance of its obligations under this Agreement or the Ancillary Documents to which the Company or Blocker Corp is or will be party or the consummation of the transactions contemplated by this Agreement or by the Ancillary Documents, except for (i) compliance with and filings under the HSR Act, (ii) the filing with the SEC of (A) the Registration Statement / Proxy Statement and the declaration of the effectiveness thereof by the SEC and (B) such reports under Section 13(a) or 15(d) of the Exchange Act as may be required in connection with this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, (iii) filing of the Blocker Certificate of Merger or (iv) any other consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not have a Company Material Adverse Effect.

(b)Neither the execution, delivery or performance by the Company or Blocker Corp of this Agreement nor the Ancillary Documents to which the Company or Blocker Corp is or will be a party nor the consummation of the transactions contemplated hereby or thereby will, directly or indirectly (with or without due notice or lapse of time or both) (i) result in any breach of any provision of the Governing Documents of the Company or Blocker Corp, (ii) result in a violation or breach of, result in the loss of any right or benefit, or constitute a default or give rise to any right of termination, Consent, cancellation, amendment, modification, suspension, revocation, or result in the acceleration or trigger of any payment time of payment, vesting or increase in the amount of any compensation or benefit payable pursuant to, any of the terms, any of the terms, conditions or provisions of any Material Contract to which the Group Companies is a party or by which any of their respective assets or properties may be bound or affected, (iii) violate or conflict with any provision of, or constitute a breach under, any Order or applicable Law to which any Group Company or any of its properties or assets are bound or (iv) result in the creation of any Lien upon any of the assets or properties (other than any Permitted Liens) or Equity Securities of any Group Company, except, in the case of any of clauses (ii) through (iv) above, as would not have a Company Material Adverse Effect.

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Section 3.6Permits. Each of the Group Companies has all Permits (the “Material Permits”) that are required to own, lease or operate its properties and assets and to conduct its business as currently conducted, except where the failure to hold the same would not result in a Company Material Adverse Effect. Except as is not and would not reasonably be expected to be material to the Group Companies, taken as a whole, (a) each Material Permit is in full force and effect in accordance with its terms, (b) no written notice of any violation, revocation, cancellation or termination of any Material Permit has been received by the Group Companies, (c) there are no pending or, to the Company’s knowledge, threatened Proceedings that seek the revocation, cancellation or termination of any Material Permit and (d) each of the Group Companies is, and since December 31, 2018 has been, in material compliance with the terms of all the Material Permits.

Section 3.7Material Contracts.

(a)Section 3.7(a) of the Company Disclosure Schedules sets forth a list of the following Contracts to which a Group Company is, as of the date of this Agreement, a party (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”, complete copies of which have previously been delivered to or made available to SilverBox or its agents or representatives, together with all amendments thereto):

(i)Contracts granting to any Person (other than any Group Company) a right of first refusal, first offer or similar preferential right to purchase or acquire Equity Securities in any Group Company;

(ii)any Contract relating to Indebtedness of any Group Company for borrowed money (excluding intercompany Indebtedness among the Company and its Subsidiaries), including any agreement or commitment for future loans, credit or financing, or to the placing of a Lien (other than any Permitted Lien) on any material assets or properties of any Group Company;

(iii)any Contract under which any Group Company is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $2,000,000;

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(iv) any Contract under which any Group Company is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by such Group Company, except for any lease or agreement under which the aggregate annual rental payments do not exceed $2,000,000;

(v)any (A) material franchise, advertising, agency, original equipment manufacturer, dealer, distributors, joint marketing, joint development, research and development or other similar Contract, and (B) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, in each case, which 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 Group Company in excess of $2,000,000 per year or $5,000,000 over the life of the Contract and (C) any Contract with respect to Company Licensed Intellectual Property (other than any Contract of the type described in clauses (A) through (C) of Section 3.13(c));

(vi)any Contract that (A) limits or purports to limit, in any material respect, the freedom of any Group Company 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 any Group Company, SilverBox or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions, (C) contains “take or pay,” “requirements” or other similar provisions obligating any Group Company to provide the quantity of goods or services required by another Person or (D) contains any other provisions restricting or purporting to restrict the ability of any Group Company 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, any Group Company, SilverBox or any of its Affiliates after the Closing;

(vii)any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by any Group Company in an amount in excess of $5,000,000 over the life of the agreement;

(viii) any Contract requiring any Group Company to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a Group Company, in each case in excess of $2,000,000;

(ix)any Contract under which any Group Company 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;

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(x) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedules;

(xi)any Contract with any Person (A) pursuant to which any Group Company (or SilverBox or any of its Affiliates after the Closing) may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants 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 Company Product or any Intellectual Property Right;

(xii)any Contract governing the terms of, or otherwise related to, the employment, engagement or services of any current director, manager, officer, employee, individual independent contractor or other service provider of a Group Company (other than physicians) whose annual base salary (or, in the case of an independent contractor, annual base compensation) is in excess of $300,000;

(xiii)any Contract providing for any Change of Control Payment of the type described in clause (a) of the definition thereof;

(xiv)any Contract (A) for the disposition of any portion of the assets or business of any Group Company or for the acquisition by any Group Company of the assets or business of any other Person (other than acquisitions or dispositions made in the ordinary course of business), or (B) under which any Group Company has any continuing obligation with respect to an “earn-out”, contingent purchase price, indemnification, backend payment or other contingent or deferred payment obligation;

(xv)any CBA;

(xvi)any settlement, conciliation or similar Contract (A) the performance of which would be reasonably likely to involve any payments after the date of this Agreement, (B) with a Governmental Entity or (C) that imposes or is reasonably likely to impose, at any time in the future, any material, non-monetary obligations on any Group Company (or SilverBox or any of its Affiliates after the Closing);

(xvii)any Contract (other than Contracts governing the terms of employment) the performance of which requires either (A) annual payments to or from any Group Company in excess of $2,000,000 or (B) aggregate payments to or from any Group Company in excess of $5,000,000 over the life of the agreement;

(xviii)any Contract between any Group Company and any Top Vendor;

(xix)any Contract between any Group Company and any Top Customer;

(xx)any Contract for the sale or purchase of real property having a value in excess of $2,000,000;

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(xxi) all Real Property Leases that have annual payments of $2,000,000 or more in a 12-month period; and

(xxii)any commitment or arrangement to enter into any Contract of the type described in this Section 3.7(a).

(b)Each Material Contract (i) is in full force and effect and (ii) represents the legal, valid and binding obligations of the Group Company that is a party to such Material Contract and, to the Company’s knowledge, represents the legal, valid and binding obligations of the counterparties to such Material Contract. Except as set forth on Section 3.7(b) of the Company Disclosure Schedules, in the past 12 months no event has occurred that, individually or together with other events, would reasonably be expected to result in a breach of or a default under any Material Contract (in each case, with or without notice or lapse of time or both) and no party to any Material Contract that is a customer of or supplier to any Group Company has cancelled or terminated its business with, or, to the Company’s knowledge, threatened to cancel or terminate its business with, any Group Company.

Section 3.8Absence of Changes. During the period beginning on January 1, 2021 and ending on the date of this Agreement, (a) no Company Material Adverse Effect has occurred and (b) except as expressly contemplated by this Agreement, any Ancillary Document or in connection with the transactions contemplated hereby and thereby, (i) each Group Company has conducted its business in the ordinary course in all material respects and (ii) no Group Company has taken any action that would require the consent of SilverBox if taken during the period from the date of this Agreement until the Closing pursuant to Section 5.1(b)(i), Section 5.1(b)(ii), Section 5.1(b)(iii), Section 5.1(b)(iv), Section 5.1(b)(viii), Section 5.1(b)(xii), Section 5.1(b)(xiv), Section 5.1(b)(xv) or Section 5.1(b)(xvii).

Section 3.9Litigation.

(a)As of the date of this Agreement, there is (and since December 31, 2018 there has been) no Proceeding pending or, to the Company’s knowledge, threatened against or affecting any Group Company or their respective properties, rights or assets that, if adversely decided or resolved, has been or would reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole. Neither the Group Companies nor any of their respective properties or assets is subject to any material Order. As of the date of this Agreement, there are no material Proceedings by a Group Company pending against any other Person. None of the Group Companies is party to a settlement or similar agreement regarding any of the matters set forth in this Section 3.9 that contains any ongoing obligations, restrictions or liabilities (of any nature) that would (i) have a Company Material Adverse Effect or (ii) be required to be disclosed Regulation S-K Item 103.

(b)There are no Proceedings of any kind whatsoever, at Law or in equity, pending or, to the Company’s knowledge, threatened in writing against Blocker Corp or its properties or assets. There is no outstanding Order imposed upon Blocker Corp, nor are any assets of Blocker Corp bound or subject to any Order the violation of which has been, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of Blocker Corp to enter into and perform its obligations under this Agreement and to consummate the transactions contemplated by this Agreement.

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Section 3.10Compliance with Applicable Law.

(a)Each Group Company (i) conducts (and since December 31, 2018 has conducted) its business in accordance with all Laws and Orders (including all applicable COVID-19 Measures) applicable to such Group Company and is not in violation of any such Law or Order and (ii) has not received any written communications from a Governmental Entity that alleges that such Group Company is not in compliance with any such Law or Order, except in each case of clauses (i) and (ii), as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole. No investigation or review by any Governmental Entity with respect to the Group Companies is pending or, to the knowledge of the Company, threatened, and no such investigations have been conducted by any Governmental Entity in the past three years.

(b)The Group Companies maintain a program of policies, procedures and internal controls reasonably designed and implemented to provide reasonable assurance that violation of applicable Law by any Group Companies’ directors, officers, employees or its or their respective agents, representatives or other Persons, acting on behalf of the Company or any of the Company’s Subsidiaries, will be prevented, detected and deterred.

(c)None of the officers or directors of any of the Group Companies has received any written notice of, or been charged with, the violation of any Laws, except where such violation has not been, and would not reasonably be excepted to be, individually or in the aggregate, material to the business of the Group Companies, taken as a whole.

Section 3.11Employee Plans.

(a)Section 3.11(a) of the Company Disclosure Schedules sets forth a true and complete list of all material Employee Benefit Plans. With respect to each material Employee Benefit Plan, the Group Companies have provided SilverBox, to the extent applicable, with true and complete copies of (i) the documents pursuant to which the plan is maintained, funded and administered (or, if not written a written summary of its material terms) and current trust agreement (or insurance contract or other funding instrument) and all amendments to each, (ii) the most recent summary plan descriptions, including any summary of material modifications, (iii) the most recent annual report (Form 5500 series) filed with the IRS with respect to such Employee Benefit Plan, (iv) if applicable, the most recent actuarial report or other financial statement relating to such Employee Benefit Plan, (v) if applicable, the most recent IRS determination or opinion letter, and (vi) if applicable, any non-routine correspondence with any Governmental Entity dated in the past three years.

(b)No Employee Benefit Plan is and no Group Company has any Liability with respect to or under: (i) a Multiemployer Plan; (ii) a “defined benefit plan” (as defined in Section 3(35) of ERISA, whether or not subject to ERISA) or a plan that is or was subject to Title IV of ERISA or Section 412 of the Code; (iii) a “multiple employer plan” within the meaning of Section of 413(c) of the Code or Section 210 of ERISA; or (iv) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA. No Employee Benefit Plan provides, and no Group Company has any material Liabilities to provide any retiree, post-ownership or post-termination health or life insurance or other welfare-type benefits to any Person other than health continuation coverage pursuant to COBRA and for which the recipient pays the full cost of coverage. No Group Company has any material Liabilities by reason of at any time being considered a single employer under Section 414 of the Code with any other Person.

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(c)Each Employee Benefit Plan has been established, maintained, funded, operated and administered in all material respects in compliance with its terms and applicable Law, including ERISA and the Code and, to the Company’s knowledge, no event has occurred and no condition exists, that has subjected, or would reasonably be expected to subject, any Group Company to any material tax, fine, lien, penalty or other Liability imposed by ERISA, the Code or any other applicable law. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has timely received a favorable determination or opinion or advisory letter from the Internal Revenue Service and, to the Company’s knowledge, nothing has occurred that could reasonably be expected to adversely affect such Employee Benefit Plan’s qualified status. None of the Group Companies has incurred (whether or not assessed) or could reasonably be expected to incur any material penalty or Tax with respect to any Employee Benefit Plan under Section 4980H, 4980B, 4980D, 6721 or 6722 of the Code.

(d)As of the date of this Agreement, there are no pending or, to the Company’s knowledge, threatened claims or Proceedings with respect to any Employee Benefit Plan (other than routine individual claims for benefits), and to the Company’s knowledge, no facts or circumstances exist that could reasonably be expected to give rise to any such claims or Proceedings. There have been no non-exempt “prohibited transactions” within the meaning of Section 4975 of the Code or Sections 406 or 407 of ERISA and no breaches of fiduciary duty (as determined under ERISA) with respect to any Employee Benefit Plan, except as is not and would not reasonably be expected to be, individually or in the aggregate, result in a material Liability. With respect to each Employee Benefit Plan, all material contributions, distributions, reimbursements and premium payments that are due have been timely made and any such amounts not yet due have been paid or properly accrued.

(e)The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement will not (alone or in combination with any other event) (i) result in any severance pay or any other compensation or benefits becoming due to or result in the forgiveness of any indebtedness of any current or former director, manager, officer, employee, individual independent contractor or other service providers of any of the Group Companies, (ii) increase the amount or value of any compensation or benefits payable to any current or former director, manager, officer, employee, individual independent contractor or other service providers of any of the Group Companies, (iii) result in the acceleration of the time of payment or vesting, trigger any payment or funding of any compensation or benefits or increase any amount payable to any current or former director, manager, officer, employee, individual independent contractor or other service providers of any of the Group Companies or (iv) limit or restrict the right of any of the Group Companies to merge, amend or terminate any Employee Benefit Plan.

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(f)No amount that could be received (whether in cash or property or the vesting of property) by any “disqualified individual” of any of the Group Companies or Blocker Corp as a result of the consummation of the transactions contemplated by this Agreement (either alone or in combination with another event) could result in an “excess parachute payment” within the meaning of Section 280G of the Code.

(g)Each Employee Benefit Plan that is or forms part of a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code has at all relevant times been operated in compliance in all material respects with, and each Group Company has complied in practice and operations in all material respects with, all applicable requirements of Section 409A of the Code and applicable guidance thereunder.

(h)The Group Companies have no obligation to make a “gross-up” or similar payment, indemnify or otherwise reimburse any current or former director, manager, officer, employee, individual independent contractor or other service providers of any of the Group Companies for any taxes that may become payable under Section 4999 or 409A of the Code.

(i)The Group Companies have no material liability by reason of an individual who performs or performed services for the Group Companies in any capacity being improperly excluded from participating in an Employee Benefit Plan or any person being improperly allowed to participate in any Employee Benefit Plan.

Section 3.12Environmental Matters. Except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole:

(a)Each Group Company is, and since December 31, 2018 has been, in compliance with all applicable Environmental Laws.

(b)None of the Group Companies have received any written notice or communication from any Governmental Entity or any other Person regarding any actual, alleged, or potential violation in any respect of, a failure to comply in any respect with, or liability under any Environmental Laws.

(c)There is (and since the formation of the Company there has been) no Proceeding pending or, to the Company’s knowledge, threatened in writing against any Group Company pursuant to Environmental Laws.

(d)There has been no manufacture, release, treatment, storage, disposal, arrangement for disposal, transport or handling of, contamination by, or exposure of any Person to, any Hazardous Substances.

(e)To the Company’s knowledge, there has been no Release of any Hazardous Substances at, on, or from the Leased Real Properties in a manner that has given rise to, or would reasonably be expected to give rise to, any material Liability or investigation or remedial obligations for the Group Companies under applicable Environmental Laws.

(f)The Group Companies have made available to SilverBox copies of all material environmental, health and safety reports and documents that are in any Group Company’s possession or control relating to the current or former operations, properties or facilities of the Group Companies.

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Section 3.13Intellectual Property.

(a)Section 3.13(a) of the Company Disclosure Schedules sets forth a true and complete list of (i) all currently issued or pending Company Registered Intellectual Property, (ii) Company Licensed Intellectual Property (other than Off-the-Shelf Software) and (iii) material unregistered Marks currently used to identify any products or services offered by any Group Company that are owned by any Group Company, in each case, as of the date of this Agreement. Section 3.13(a) of the Company Disclosure Schedules lists, for each item of Company Registered Intellectual Property as of the date of this Agreement (A) the record owner of such item, (B) the jurisdictions in which such item has been issued or registered or filed, (C) the issuance, registration or application date, as applicable, for such item and (D) the issuance, registration or application number, as applicable, for such item.

(b)As of the date of this Agreement, all fees and filings necessary to maintain any material Company Registered Intellectual Property have been timely submitted to the relevant intellectual property office or Governmental Entity and Internet domain name registrars to maintain such material Company Registered Intellectual Property in full force and effect, and, except as specified in Section 3.13(b) of the Company Disclosure Schedule, no such fees or filings are due within 180 days following the date of this Agreement. As of the date of this Agreement, no issuance or registration obtained and no application filed by the Group Companies for any Intellectual Property Right has been cancelled, abandoned, allowed to lapse or not renewed, except where such Group Company has, in its reasonable business judgment, decided to cancel, abandon, allow to lapse or not renew such issuance, registration or application. As of the date of this Agreement there are no material Proceedings pending, including litigations, interference, re-examination, inter parties review, reissue, opposition, nullity, or cancellation proceedings pending challenging the validity or enforceability of any of the Company Registered Intellectual Property and, to the Company’s knowledge, no such material Proceedings are threatened by any Governmental Entity or any other Person.

(c)A Group Company exclusively owns all right, title and interest in and to all material Company Owned Intellectual Property free and clear of all Liens or obligations to others (other than Permitted Liens). For all Patents owned by the Group Companies, each inventor on the Patent has assigned their rights to a Group Company. No Group Company has (i) transferred ownership of, or granted any exclusive license with respect to, any material Company Owned Intellectual Property to any other Person or (ii) granted any customer the right to use any material Company Product on anything other than a non-exclusive basis. Section 3.13(c) of the Company Disclosure Schedules sets forth a list of all current Contracts for Company Licensed Intellectual Property as of the date of this Agreement and all current Contracts as of the date of this Agreement pursuant to which any Person has been granted any license or covenant not to sue under, or otherwise has received or acquired any right (whether or not exercisable) or interest in, any Company Owned Intellectual Property, other than (A) licenses to Off-the-Shelf Software, (B) licenses to Public Software that does not constitute, include or incorporate any Software that embodies or is covered by any Company Owned Intellectual Property and (C) non-disclosure agreements with and licenses granted by employees, individual consultants or individual contractors of any Group Company pursuant to Contracts with employees, individual consultants or individual contractors, in each case, that do not materially differ from the Group Companies’ form therefor that has been made available to SilverBox. The applicable Group Company has valid rights under all Contracts for Company Licensed Intellectual Property to use, sell, license and otherwise exploit, as the case may be, all Company Licensed Intellectual Property licensed pursuant to such Contracts as the same is currently used, sold, licensed and otherwise exploited by such Group Company. The Company Owned Intellectual Property and the Company Licensed Intellectual Property constitutes all of the Intellectual Property Rights used or held for use by the Group Companies in the operation of their respective businesses, and all Intellectual Property Rights necessary and sufficient to enable the Group Companies to conduct their respective businesses as currently conducted in all material respects. The Company Registered Intellectual Property and, to the Company’s knowledge, the Company Licensed Intellectual Property is valid, subsisting and enforceable and all of the Group Companies’ rights in and to the Company Registered Intellectual Property, the Company Owned Intellectual Property and the Company Licensed Intellectual Property are valid and enforceable (in each case, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).

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(d)Each Group Company’s employees, consultants, advisors and independent contractors was employed or engaged by the Company since December 31, 2018 have agreed to maintain and protect the trade secrets and confidential information of all Group Companies and to refrain from using such trade secrets and confidential information except for the Group Companies’ sole benefit. Except as set forth on Section 3.13(d) of the Company Disclosure Schedules, each Group Company’s employees, consultants, advisors and independent contractors who independently or jointly contributed to or otherwise participated in the authorship, invention, creation, improvement, modification or development of any material Company Owned Intellectual Property (each such person, a “Creator”) have effectively assigned (using present tense language of assignment) or have agreed to a present assignment to such Group Company all Intellectual Property Rights that have been or will be authored, invented, created, improved, modified or developed by such Creator in the course of such Creator’s employment or other engagement with such Group Company.

(e)Each Group Company has taken commercially reasonable steps substantially consistent with other Persons in the same industry to safeguard and maintain the secrecy of any trade secrets, know-how and other confidential information owned by or known to each Group Company. Without limiting the foregoing, each Group Company has not disclosed any trade secrets, know-how or confidential information to any other Person unless such disclosure was under an appropriate written non-disclosure agreement containing appropriate limitations on use, reproduction and disclosure. To the Company’s knowledge, there has been no violation or unauthorized access to or disclosure of any trade secrets, know-how or confidential information of or in the possession each Group Company, or of any written obligations with respect to such.

(f)None of the Company Owned Intellectual Property and, to the Company’s knowledge, none of the Company Licensed Intellectual Property is subject to any outstanding Order that restricts in any manner the use, sale, transfer, licensing or exploitation thereof by the Group Companies or affects the validity, use or enforceability of any such Company Owned Intellectual Property, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole.

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(g)Neither the conduct of the business of the Group Companies nor any of the Company Products offered, marketed, licensed, provided, sold, distributed or otherwise exploited by the Group Companies nor the design, development, manufacturing, reproduction, use, marketing, offer for sale, sale, importation, exportation, distribution, maintenance or other exploitation of any Company Product infringes, constitutes or results from an unauthorized use or misappropriation of or otherwise violates any Intellectual Property Rights of any other Person, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole.

(h)There is no material Proceeding pending nor, since December 31, 2018, has any Group Company received any written communications (i) alleging that a Group Company has infringed, misappropriated or otherwise violated any Intellectual Property Rights of any other Person, (ii) challenging the validity, enforceability, use or exclusive ownership of any Company Owned Intellectual Property or (iii) inviting any Group Company to take a license under any Patent or consider the applicability of any Patents to any products or services of the Group Companies or to the conduct of the business of the Group Companies.

(i)To the Company’s knowledge, no Person is infringing, misappropriating, misusing, diluting or violating any Company Owned Intellectual Property in any material respect. Since December 31, 2018, no Group Company has made any written claim against any Person alleging any infringement, misappropriation or other violation of any Company Owned Intellectual Property in any material respect.

(j)Each Group Company has obtained, possesses and is in compliance with valid licenses to use all of the Software present on the computers and other Software-enabled electronic devices that it owns or leases or that is otherwise used by such Group Company and/or its employees in connection with the Group Company business, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as whole. No Group Company has disclosed or delivered to any escrow agent or any other Person, other than employees or contractors who are subject to confidentiality obligations, any of the source code that is Company Owned Intellectual Property, and no other Person has the right, contingent or otherwise, to obtain access to or use any such source code. To the Company’s knowledge, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time or both) will, or would reasonably be expected to, result in the delivery, license or disclosure of any source code that is owned by a Group Company or otherwise constitutes Company Owned Intellectual Property to any Person who is not, as of the date the event occurs or circumstance or condition comes into existence, a current employee or contractor of a Group Company subject to confidentiality obligations with respect thereto.

(k)No Group Company has accessed, used, modified, linked to, created derivative works from or incorporated into any proprietary Software that constitutes a product or service offered by a Group Company or is otherwise considered or embodies or is covered by Company Owned Intellectual Property and that is distributed outside of the Group Companies, or is otherwise used in a manner that may trigger or subject such Group Company to any obligations set forth in the license for such Public Software, any Public Software, in whole or in part, in each case in a manner that (i) requires any Company Owned Intellectual Property (or Software that embodies or is covered thereby) to be licensed, sold, disclosed, distributed, hosted or otherwise made available, including in source code form or for the purpose of making derivative works, for any reason, (ii) grants, or requires any Group Company to grant, the right to decompile, disassemble, reverse engineer or otherwise derive the source code or underlying structure of any Company Owned Intellectual Property, (iii) limits in any manner the ability to charge license fees or otherwise seek compensation in connection with marketing, licensing or distribution of any Company Owned Intellectual Property (or Software that embodies or is covered thereby) or (iv) otherwise imposes any limitation, restriction or condition on the right or ability of any Group Company to use, hold for use, license, host, distribute or otherwise dispose of any Company Owned Intellectual Property, other than compliance with notice and attribution requirements, in each case, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole.

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Section 3.14Labor Matters.

(a)Except as set forth on Section 3.14(a) of the Company Disclosure Schedules, since December 31, 2018, (i) none of the Group Companies (A) has or has had any material Liability for any arrears of wages or other compensation for services (including salaries, wage premiums, commissions, fees or bonuses), or any penalty or other sums for failure to comply with any of the foregoing, and (B) has or has had any material Liability for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Entity with respect to unemployment compensation benefits, social security, social insurances or other benefits or obligations for any employees of any Group Company (other than routine payments to be made in the normal course of business and consistent with past practice); and (ii) the Group Companies have withheld all amounts required by applicable Law or by agreement to be withheld from wages, salaries and other payments to employees or independent contractors or other service providers of each Group Company, except as has not and would not reasonably be expected to result in, individually or in the aggregate, material Liability to the Group Companies.

(b)Since December 31, 2018, there has been no “mass layoff” or “plant closing” as defined by WARN related to any Group Company, and the Group Companies have not incurred any material Liability under WARN nor will they incur any Liability under WARN as a result of the transactions contemplated by this Agreement.

(c)No Group Company is a party to or bound by any CBA or other agreements with any labor organization, labor union, works council or other employee representative or any other Contract with a labor union, labor organization, works council, employee delegate, representative or other employee collective group and no such agreements are being negotiated by any Group Company. nor, to the Company’s knowledge, is there any duty on the part of any Group Company to bargain with any labor union, labor organization, works council, employee delegate, representative or other employee collective group and no employees of the Group Companies are represented by any labor union, works council, other labor organization or employee representative with respect to their employment with the Group Companies. Since December 31, 2018, there has been no actual or, to the Company’s knowledge, threatened unfair labor practice charges, material grievances, arbitrations, strikes, lockouts, work stoppages, slowdowns, picketing, hand billing or other material labor disputes against or affecting any Group Company. To the Company’s knowledge, (i) no labor union, works council or any other employee representative body has requested or sought to organize or represent any of the employees of the Group Companies with respect to their employment with the Group Companies and (ii) since December 31, 2018, there have been no labor organizing activities with respect to any employees of any Group Company.

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(d)To the Company’s knowledge, except as has not and would not reasonably be expected to result in, individually or in the aggregate, material Liability to the Group Companies, no current or former employee or independent contractor of the Group Companies is in any material respect in violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, noncompetition agreement, nonsolicitation agreement, restrictive covenant or other obligation: (i) owed to the Group Companies; or (ii) owed to any third party with respect to such person’s right to be employed or engaged by the Group Companies.

(e)No employee layoff, facility closure or shutdown (whether voluntary or by Order), reduction-in-force, furlough, temporary layoff, material work schedule change or reduction in hours, or reduction in salary or wages, or other workforce changes affecting employees of the Group Companies has occurred since December 31, 2020 or is currently contemplated, planned or announced, including as a result of COVID-19 or any Law, Order, directive, guidelines or recommendations by any Governmental Entity in connection with or in response to COVID-19. The Group Companies have not otherwise experienced any material employment-related liability with respect to or arising out of COVID-19 or any Law, Order, directive, guidelines or recommendations by any Governmental Entity in connection with or in response to COVID-19.

(f)To the Company’s knowledge, since December 31, 2018, no allegations of sexual harassment, sexual misconduct or discrimination have been made against a Vice President level employee or above of the Group Companies. The Group Companies have promptly, thoroughly and impartially investigated all sexual harassment or other discrimination, retaliation or policy violation allegations of which they are or were aware in the past two years. With respect to each such allegation with potential merit, the Group Companies have taken prompt corrective action that is reasonably calculated to prevent further improper conduct. None of the Group Companies reasonably expect any material liability with respect to any such allegations and is not aware of any allegations relating to officers, directors, employees, contractors or agents of the Group Companies that, if known to the public, would bring the Group Companies into material disrepute.

Section 3.15Insurance. Section 3.15 of the Company Disclosure Schedules sets forth a list of all material policies of fire, liability, workers’ compensation, property, casualty and other forms of insurance owned or held by any Group Company. All such policies are legal, valid and binding and enforceable in accordance with its terms and in full force and effect, all premiums due and payable thereon as of the date of this Agreement have been paid in full as of the date of this Agreement, and true and complete copies of all such policies have been made available to SilverBox. No claim by any Group Company is pending under any such policies as to which coverage has been denied or disputed, or rights reserved to do so, by the underwriters thereof, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole. No event has occurred which, with notice or the lapse of time or both, would constitute such a breach or default, or permit termination or modification, under any such policy, and no such action has been threatened.

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Section 3.16Tax Matters. Except as has not had, and would not reasonably be expected to have, a Company Material Adverse Effect:

(a)All Tax Returns required to be filed by each Group Company and Blocker Corp have been timely filed pursuant to applicable Laws (taking into account any extension of time within which to file), all such Tax Returns are true, complete and correct, and each Group Company and Blocker Corp has paid all Taxes due and payable by it (whether or not shown as due and payable on such Tax Returns); Each Group Company has timely and properly withheld and paid to the appropriate Tax Authority all Taxes required to have been withheld and paid by it in connection with any amounts paid or owing to any employee, independent contractor, creditor, equityholder or other third party and has otherwise complied with all applicable Laws relating to such withholding and payment of Taxes;

(b)There is no Proceeding now being conducted or pending with respect to any Taxes or Tax Returns of any Group Company or Blocker Corp; All deficiencies for Taxes asserted or assessed in writing against any Group Company or Blocker Corp have been fully paid, settled or withdrawn;

(c)Except as the result of an extension of time within which to file a Tax Return obtained in the ordinary course of business, no Group Company or Blocker Corp has agreed to any extension or waiver of the statute of limitations applicable to any Tax or Tax Return, or any extension of time with respect to a period of Tax collection, assessment or deficiency, which period (after giving effect to such extension or waiver) has not yet expired, and no request for any such waiver or extension is currently pending;

(d)No Group Company or Blocker Corp has been a party to any “listed transaction” and within the meaning of Treasury Regulations Section 1.6011-4(b)(2);

(e)No Group Company or Blocker Corp will be required to make any payment after the date of the Latest Balance Sheet as a result of an election under Section 965 of the Code;

(f)There is no Lien for Taxes on any of the assets of Blocker Corp or any Group Company, other than Permitted Liens;

(g)No Group Company or Blocker Corp has any liability for Taxes of any Person (other than, in the case of any Group Company, for Taxes of any other Group Company) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. Law), as a transferee or successor, by contract or by operation of Law (in each case, other than pursuant to this Agreement or any Ancillary Document or any customary commercial agreements entered into in the ordinary course of business and not primarily related to Taxes);

(h)No written claim has been made by any Governmental Entity within the last 3 years where any Group Company or Blocker Corp does not file Tax Returns that such Group Company or Blocker Corp, as applicable, is or may be subject to taxation in that jurisdiction, which claim has not been resolved or withdrawn;

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(i)Neither Blocker Corp nor any Group Company is a party to any Tax indemnification, Tax gross-up, Tax allocation, or Tax sharing or similar Contract or arrangement (other than (A) this Agreement, the Company LLC Agreement, and any Ancillary Document or (B) any such Contract or arrangement (x) solely between Group Companies or (y) that is a customary provision contained in a commercial Contract entered into in the ordinary course of business and not primarily related to Taxes);

(j)Blocker Corp has not been a party to any transaction treated or intended to be treated by the parties as a distribution of stock qualifying for Tax-free treatment under Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code) in the two years prior to the date hereof;

(k)         Neither Blocker Corp nor any Group Company has deferred any Taxes pursuant to the CARES Act that have not been repaid;

(l)Neither Blocker Corp nor any Group Company (assuming for this purpose that each of the Group Companies is a regarded entity for U.S. federal Income Tax purposes) will be required to include any item of income in, or exclude any 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, or the use of a cash or an improper method of accounting, for a taxable period ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Income Tax Law) executed on or prior to the Closing Date; (iii) intercompany transactions as described in Treasury Regulation Section 1.1502-13 (or any corresponding or similar provision of state, local or foreign Income Tax Law) or excess loss account described in Treasury Regulation Section 1.1502-19 (or any corresponding or similar provision of state, local or foreign Income Tax Law); (iv) installment sale or open transaction disposition made on or prior to the Closing Date; (v) deferred revenue or prepaid or deposit amount received on or prior to the Closing Date; (vi) “minimum gain chargeback” provision with respect to “minimum gain” for periods (or portions of periods) ending on or prior to the Closing Date pursuant to Subchapter K of the Code; or (vii) debt instrument held on or before the Closing Date that was acquired with “original issue discount” as defined in Section 1273(a) of the Code or is subject to the rules set forth in Section 1276 of the Code. Neither Blocker Corp nor any Group Company has deferred any Taxes pursuant to the CARES Act.

(m)For federal and applicable state and local income tax purposes (i) the Company has been properly treated as a partnership at all times since its date of formation and no election has ever been filed or other action taken for the Company to be treated as an association taxable as a corporation; and (ii) each of the Subsidiaries of the Company is and has been since its date of formation treated as an entity disregarded as separate from its owner.

(n)Neither Blocker Corp nor any Group Company has taken or agreed to take any action, or is aware of any fact, plan or circumstance, that would reasonably be expected to prevent the Pubco Merger from qualifying for the Intended Tax Treatment; and

(o)For U.S. federal income tax purposes, the Company is properly treated as a partnership, and no election is pending for the Company to be treated as an association taxable as a corporation.

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Notwithstanding anything to the contrary herein, (i) Section 3.8 and Section 3.11 (to the extent such Sections pertain to Tax matters) and this Section 3.16 contain the sole and exclusive representations and warranties of the Company and Blocker Corp with respect to matters relating to Taxes and (ii) nothing in this Section 3.16 or otherwise in this Agreement shall be construed as a representation, covenant or warranty with respect to (A) the amount or availability of any net operating loss, capital loss, Tax credit carryover, Tax basis, or other Tax asset or attribute of any Group Company or Blocker Corp in any taxable period (or portion thereof) beginning after the Closing Date, or (B) other than with respect to the representations in Section 3.16(c), (e), (g), (i), or (m), any Tax positions that any Group Company or Blocker Corp may take in or in respect of a taxable period (or portion thereof) beginning after the Closing Date.

Section 3.17Brokers. Except for fees (including the amounts due and payable assuming the Closing occurs) set forth on Section 3.17 of the Company Disclosure Schedules (which fees shall be the sole responsibility of the Company, except as otherwise provided in Section 9.6), no broker, finder, financial advisor, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Company, Blocker Corp or any of their respective Affiliates for which any of the Group Companies has any obligation.

Section 3.18Real and Personal Property.

(a)Owned Real Property. Section 3.18(a) of the Company Disclosure Schedules, sets forth a true and complete list (including street addresses) of all Owned Real Property. As to each Owned Real Property, the Company represents and warrants the following is true and correct:

(i)The applicable Group Company owns in fee simple good, marketable and insurable title to such parcel;

(ii)Such Owned Real Property is free and clear of all Liens, other than Permitted Liens;

(iii)Except as set forth in Section 3.18(a) of the Company Disclosure Schedules, no Group Company has leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof;

(iv)There are no proceedings, rights of first refusal or options to acquire, lease, sell or dispose of all or any part of such Owned Real Property;

(v)SilverBox has been provided with true and correct copies of all surveys, including ALTA surveys, boundary surveys, and as-built surveys, property inspection or engineering reports, and all title commitments and title policies with respect to the Owned Real Property that are in the possession or control of any Group Company; and

(vi) All buildings, structures, fixtures, building systems and all components thereof on or under the Owned Real Property (including utilities serving such Owned Real Property) are in all material respects, adequate for the Business operations as currently used and are free of any material defects or deficiencies.

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(b)Leased Real Property. Section 3.18(b) of the Company Disclosure Schedules sets forth a true and complete list (including street addresses) of all real property and improvements located thereon leased, licensed, subleased, sublicensed, or otherwise used or occupied, or permitted to be used or occupied, by any of the Group Companies (the “Leased Real Property”) and all Real Property Leases (and the name and date of the parties to each of the parties to the Real Property Leases) pursuant to which any Group Company is a tenant, licensee, subtenant, sublicensee, or other occupant as of the date of this Agreement. True and complete copies of all such Real Property Leases have been made available to SilverBox. Each Real Property Lease is in full force and effect and is a valid, legal and binding obligation of the applicable Group Company party thereto, enforceable in accordance with its terms against such Group Company and, to the Company’s knowledge, each other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). Except as set forth in Section 3.18(b) of the Company Disclosure Schedules, (i) the transactions contemplated by this Agreement will not require the consent of any party to any Real Property Leases, will not result in a breach of or default under any Real Property Leases or otherwise cause the Real Property Leases to (A) no longer be in full force and effect or (B) cease to be the valid, legal and binding obligation of each of the applicable Group Company party thereto and each other party thereto, enforceable in accordance with its terms against such Group Company and each other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the quiet possession and enjoyment of each applicable Group Company to its respective Leased Real Property has not been disturbed, (iii) there is no dispute, breach or default by any Group Company or, to the Company’s knowledge, any third party under any Real Property Lease, and, to the Company’s knowledge, no event has occurred which (with or without notice or lapse of time or both) would constitute a dispute, breach or default thereunder, or would permit termination of, or a modification or acceleration thereof by any party to such Real Property Leases, (iv) no security deposit or portion thereof deposited with respect such Real Property Lease has been applied in respect of a dispute, breach or default under such Real Property Lease which has not been redeposited in full, (v) no Group Company owes, or will owe in the future, any brokerage commissions or finder’s fees with respect to such Real Property Lease, (vi) the counterparty to such Real Property Lease is not a Company Non-Party Affiliate and otherwise has never and presently does not have any economic interest in any Group Company, (vii) no Group Company has leased, subleased, licensed, sublicensed, or otherwise granted any Person the right to use or occupy such Leased Real Property or any portion thereof, (viii) the Leased Real Property comprise all of the real property used or intended to be used in, or otherwise related to, the Business, (ix) the Leased Real Property and the furniture, fixtures and equipment located therein or thereon, as applicable, is in good condition and repair and sufficient for the operation of the Business, and there are no facts or conditions affecting any of the furniture, fixtures and equipment located in or upon the Leased Real Property which would, individually or in the aggregate, interfere in any material respect with the use or occupancy of the Leased Real Property or any portion thereof in the operation of the Business or the value thereof; (x) all rent and additional rent, including operating expenses, property taxes and pass throughs and any other monetary obligations, are current; and (xi) the Company or one of the Group Companies holds a good and valid leasehold estate in the Leased Real Properties, free and clear of all Liens, except for Permitted Liens.

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(c)Condemnation. There is no condemnation, expropriation, or other proceeding in eminent domain pending or, to the Company’s knowledge, threatened, affecting any Real Property or any portion thereof or interest therein.

(d)Mechanics Liens. There is no amount due and payable to any architect, contractor, subcontractor, materialman, or other Person for work or labor performed for, or materials or supplies provided to, or in connection with, any Real Property or portion thereof which is delinquent. Except as set forth in Section 3.18(d) of the Company Disclosure Schedules, there is no work or labor being performed for, or materials or supplies being provided to, or in connection with, any Real Property or portion thereof, or to be performed or supplied prior to Closing, other than development and outfitting of new coffee shop locations in the ordinary course of business, and normal-course maintenance and repair work.

(e)Compliance with Real Property Laws. The Real Property is in compliance with all applicable building, zoning, subdivision, health and safety and other land use Laws, including The Americans with Disabilities Act of 1990, as amended, and all insurance requirements affecting the Real Property (collectively, the “Real Property Laws”), and the current use or occupancy of the Real Property or operation of the Business thereon does not violate any Real Property Laws. Neither the Company nor any other Group Company has received any notice of violation of any Real Property Law and, to the Company’s knowledge, there is no basis for the issuance of any such notice or the taking of any action for such violation. There is no pending or, to the Company’s knowledge, anticipated change in any Real Property Law that will have a material adverse effect on the lease, use or occupancy of any Real Property or any portion thereof in the continued operation of the Business or the value thereof. To the Company’s knowledge, all Group Companies have all certificates of occupancy and operating permits, licenses, franchises, approvals and authorizations, which are required for such Group Company’s use or occupancy of the Real Property.

(f)Personal Property. Each Group Company has good, marketable and indefeasible title to, or a valid leasehold interest in or license or right to use, all of the material assets and properties (including any Real Property) of the Group Companies reflected in the Financial Statements or thereafter acquired by the Group Companies, except for assets disposed of in the ordinary course of business.

Section 3.19Transactions with Affiliates. Section 3.19 of the Company Disclosure Schedules sets forth, and the Company has made available to SilverBox true and complete copies of, all Contracts between (a) any Group Company, on the one hand, and (b) any Company Related Party, on the other hand, other than Contracts entered into after the date of this Agreement that are either permitted pursuant to Section 5.1(b) or entered into in accordance with Section 5.1(b). Except as set forth on Section 3.19 of the Company Disclosure Schedules, no Company Related Party (i) owns any material property or right (tangible or intangible) that is used in any Group Company’s business, (ii) owes any material amount to, or is owed any material amount by, any Group Company (other than ordinary course accrued compensation, employee benefits, employee or director expense reimbursement or other transactions entered into after the date of this Agreement that are either permitted pursuant to Section 5.1(b) or entered into in accordance with Section 5.1(b)) or (iii) has any financial interest in (other than the ownership of 2% or less of any class of publicly traded securities of a company that is) a material supplier, lessor, lessee, distributor, wholesaler, retailer, reseller, or competitor of any Group Company. All Contracts, arrangements, understandings, interests and other matters that are disclosed or required to be disclosed pursuant to this Section 3.19 are referred to herein as “Company Related Party Transactions”.

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Section 3.20Top Vendors and Top Customers.

(a)Section 3.20 of the Company Disclosure Schedules sets forth the top ten vendors (excluding landlords) (the “Top Vendors”) and top ten customers (the “Top Customers”) based on the aggregate dollar value of the Group Companies’ transaction volume with such counterparty during the 12-month period ending December 31, 2020.

(b)None of the Top Vendors nor any Top Customers has, as of the date of this Agreement, informed any Group Company that it will or, to the knowledge of the Company, has threatened to, terminate, cancel, or materially limit or materially and adversely modify any of its existing business with any Group Company (other than due to the expiration of an existing contractual arrangement), and to the Company’s knowledge, none of the Top Vendors or Top Customers is otherwise involved in or, to the Company’s knowledge, threatening a material dispute against the Company or its Subsidiaries or their respective businesses.

Section 3.21Equipment and Other Tangible Property. The Group Companies own and have good title to, or a valid leasehold interest in or right to use by license or otherwise, all material machinery, equipment and other tangible property reflected on the books of the Group Companies as owned by such Group Company, free and clear of all Liens other than Permitted Liens. All material personal property and leased personal property assets of the Company and its Subsidiaries are structurally sound and in good operating condition and repair (ordinary wear and tear excepted) and are suitable for their present use.

Section 3.22Product Warranties; Product Liability

(a)To the Company’s knowledge, each product provided by the Group Companies to a purchaser was provided in material conformity with all applicable contractual commitments and all express warranties by which the Group Companies are bound. To the Company’s knowledge, (i) there are no claims or other Proceedings threatened or that have been submitted or asserted, relating to breach of any guarantee, warranty or indemnity relating to any products designed, sold, manufactured, distributed or delivered by, or services provided by, the Group Companies, (ii) there is no reasonable basis for any present or future claim or other Proceeding that would reasonably be expected to give rise to any such liability and (iii) there is no material design defect, nor any failure to warn, with respect to any products now or previously designed, tested, sold, manufactured, distributed or delivered by, or services now or previously provided by, the Group Companies.

(b)There are no claims or other Proceedings pending, threatened, or other Proceeding the have been submitted or asserted, alleging that the Group Companies have any Liability (whether in negligence, breach of warranty, strict liability, failure to warn, or otherwise) arising out of or relating to any claimed injury or damage to individuals or property as a result of the claimed ownership, possession or use of any products allegedly designed, tested, sold, manufactured, distributed or delivered by the Group Companies.

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Section 3.23Data Privacy and Security.

(a)Each Group Company has implemented written policies relating to the Processing of Personal Data as and to the extent required by applicable Privacy Laws (“Privacy and Data Security Policies”), or is in process of implementing such Privacy and Data Security Policies, with an anticipated end date of no later than December 31, 2021.

(b)Each Group Company complies, and since December 31, 2018 has complied, and to the knowledge of the Company, all vendors, processors or other third parties Processing Personal Data collected by and/or Processed by or for any Group Company (collectively, “Data Partners”) comply, and since December 31, 2018 has complied, in all material respects with: (i) all Privacy Laws, (ii) all Privacy Policies applicable to each Group Company, and (iii) all contractual commitments, including any terms of use, that each Group Company has entered into with respect to the Processing of Personal Data (collectively, the “Data Protection Requirements”).

(c)The Company has not received notice of any pending, or to the knowledge of the Company, threatened Proceedings, nor has there been any material Proceedings against any Group Company initiated by (i) any Person; or (ii) the United States Federal Trade Commission, any state attorney general or similar state official.

(d)Each Group Company has implemented, and since December 21, 2018 has maintained, and requires all Data Partners to implement and maintain, at a minimum, industry standard security measures, plans, procedures, and controls to protect the security of any Personal Data against any accidental, unlawful or unauthorized access, use, loss, alteration, destruction, compromise, or other unauthorized disclosure or Processing of, or access to Personal Data (a “Security Incident”). Since the formation of the Company, to the Company’s knowledge, (i) no Group Company has experienced a Security Incident, and (ii) there have been no unauthorized intrusions or breaches of security into any Company IT Systems except, in the case of clauses (i) and (ii), as would not have a Company Material Adverse Effect.

(e)Each Group Company owns or has a license to use the Company IT Systems as necessary to operate the business of each Group Company as currently conducted. The Company IT Systems are sufficient and in good working condition for the operation of the Business in all material respects.

Section 3.24Compliance with International Trade & Anti-Corruption Laws.

(a)Neither the Group Companies nor, to the Company’s knowledge, any of their Representatives, or any other Persons acting for or on behalf of any of the foregoing, is or has been, since the formation of the Company, (i) a Person named on any Sanctions and Export Control Laws-related list of designated Persons maintained by a Governmental Entity; (ii) located, organized or resident in a country or territory which is itself the subject of or target of any territory-wide Sanctions and Export Control Laws (at the time of this Agreement, the Crimea region of Ukraine, Cuba, Iran, North Korea, Syria, and, prior to January 17, 2017, Sudan) (a “Sanctioned Jurisdiction”); (iii) an entity owned, directly or indirectly, by one or more Persons described in clause (i) or (ii); or (iv) otherwise engaging in dealings with or for the benefit of any Person described in clauses (i) through (iii) or any Sanctioned Jurisdiction. The Group Companies are, and during the past five years have at all times been, in compliance with Sanctions and Export Control Laws.

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(b)No Group Company has received written notice to the effect that a Governmental Entity claimed or alleged that such Group Company was not in compliance with Made in the USA or Buy American standards and requirements.

(c)Neither the Group Companies nor, to the Company’s knowledge, any of their Representatives, or any other Persons acting for or on behalf of any of the foregoing has (i) made, offered, promised, paid or received, directly or indirectly, any unlawful bribes, kickbacks or other similar payments to or from any Government Official or any other Person, (ii) made or paid any contributions, directly or indirectly, to a domestic or foreign political party or candidate to secure any improper advantage or to obtain or retain business, or (iii) otherwise made, offered, received, authorized, promised or paid any improper payment under any Anti-Corruption Laws.

(d)The Group Companies comply, and have at all times complied, with all Anti-Corruption Laws. Without limiting the generality of the foregoing, (a) the Group Companies have not violated nor are in violation in any material respect of the U.S. Anti-Kickback Statute (42 U.S.C. Section 1302a-7(b)), the Federal False Claims Act (31 U.S.C. Sections 3729, et seq.), or any related or similar Law, and (b) there has been no use or authorization of money or anything of value relating to any unlawful payment or secret or unrecorded fund or any false or fictitious entries made in the books and records of the Group Companies relating to the same.

(e)Neither the Group Companies nor any of their Representatives have received any notice or communication from any Person that alleges, or been involved in any internal investigation involving any allegation relating to, potential violation of any Anti-Corruption Laws or other applicable Law, or have received a request for information from any Governmental Entity regarding Anti-Corruption Laws.

(f)No Government Official has, directly or indirectly, the right of control over, or any beneficial interest in the Group Companies.

(g)The Group Companies maintain, and have maintained, compliance policies, procedures, and internal controls reasonably calculated to ensure compliance with applicable Anti-Corruption Laws.

Section 3.25Information Supplied. None of the information supplied or to be supplied by or on behalf of the Group Companies expressly for inclusion or incorporation by reference prior to the Closing 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 Pre-Closing SilverBox Holders or at the time of the SilverBox Shareholders Meeting, and in the case of any amendment thereto, at the time of such 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. All information, including the financial projections, with respect to the Company and its Subsidiaries that was delivered by or on behalf of the Company for inclusion in the SilverBox Investor Presentation being delivered concurrently with the announcement of this transaction was prepared in good faith using assumptions that the Company believes to be reasonable.

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Section 3.26Government Contracts. Except as set forth on Section 3.26 of the Company Disclosure Schedules, none of the Group Companies is party to: (a) any Contract, including an individual task order, delivery order, purchase order, basic ordering agreement, letter Contract or blanket purchase agreement between any Group Company, on one hand, and any Governmental Entity, on the other hand, that is still in effect and that is material in any respect; or (b) any subcontract or other Contract by which any Group Company has agreed to provide goods or services through a prime contractor directly to a Governmental Entity that is expressly identified in such subcontract or other Contract as the ultimate consumer of such goods or services that is still in effect and that is material in any respect.

Section 3.27Investigation; No Other Representations.

(a)Each of the Company and Blocker Corp, 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 SilverBox Parties and (ii) it has been furnished with or given access to such documents and information about the SilverBox Parties 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 Ancillary Documents and the transactions contemplated hereby and thereby.

(b)In entering into this Agreement and the Ancillary Documents to which it is or will be a party, each of the Company and Blocker Corp has relied solely on its own investigation and analysis and the representations and warranties expressly set forth in Article 4 and in the Ancillary Documents to which it is or will be a party and no other representations or warranties of SilverBox, any SilverBox Non-Party Affiliate or any other Person, either express or implied, and the Company, 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 4 and in the Ancillary Documents to which it is or will be a party, none of SilverBox, any SilverBox Non-Party Affiliate 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 Ancillary Documents or the transactions contemplated hereby or thereby.

Section 3.28No Operations. Blocker Corp: (a) does not hold, and has not held, any material assets, interests or investments, other than with respect to its ownership of Existing Company Units; (b) does not have and has not had any employees; (c) has not conducted and does not conduct any material business, other than business incidental to its direct or indirect ownership interest in the Company; (d) has no material liabilities or obligations whatsoever other than those related to its ownership of Existing Company Units and liabilities or obligations related to maintaining its corporate existence (including, for example, liabilities or obligations for filing Tax returns); (e) is not a party to any material Contract other than the Blocker Corp’s Governing Documents, the Company’s Governing Documents, any Contract relating to its equity investment in or expense reimbursement from the Company, and this Agreement and other documents related to the transactions contemplated hereby; (f) was formed for the sole purpose of owning Equity Securities in the Company and for no other purpose; and (g) has no Subsidiaries or Equity Securities in any Person (other than the Company).

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Section 3.29EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO ANY SILVERBOX PARTY OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION (INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS Article 3 OR THE ANCILLARY DOCUMENTS, NONE OF The Company, BLOCKER CORP, ANY COMPANY NON-PARTY AFFILIATE OR ANY OTHER PERSON MAKES, and EACH OF the company and BLOCKER CORP EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, INCLUDING AS TO THE MATERIALS RELATING TO THE BUSINESS AND AFFAIRS OR HOLDINGS OF THE GROUP COMPANIES THAT HAVE BEEN MADE AVAILABLE TO ANY SILVERBOX PARTY OR ANY OF THEIR REPRESENTATIVES OR IN ANY PRESENTATION OF THE BUSINESS AND AFFAIRS OF THE GROUP COMPANIES BY THE MANAGEMENT OF THE COMPANY OR OTHERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR BY THE ANCILLARY DOCUMENTS, 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 SILVERBOX PARTY OR ANY SILVERBOX NON-PARTY AFFILIATE IN EXECUTING, DELIVERING AND PERFORMING THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. Except for the representations and warranties expressly set forth in Article 3 OR the ancillary DOCUMENTS, 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 ANY GROUP COMPANY ARE NOT AND SHALL NOT BE DEEMED TO BE OR TO INCLUDE REPRESENTATIONS OR WARRANTIES OF THE COMPANy, Blocker Corp, ANY COMPANY NON-PARTY AFFILIATE OR ANY OTHER PERSON, AND ARE NOT AND SHALL NOT BE DEEMED TO BE RELIED UPON BY ANY SILVERBOX PARTY OR ANY SILVERBOX NON-PARTY AFFILIATE IN EXECUTING, DELIVERING or PERFORMING THIS AGREEMENT, THE ANCILLARY DOCUMENTS or THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. NOTHING IN THIS Section 3.29 will reLIEVE ANY PARTY OR LIABILITY IN THE CASE Of FRAUD (FOR THE AVOIDANCE OF DOUBT, AS DEFINED HEREIN) COMMITTED BY SUCH PARTY.

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Article 4
REPRESENTATIONS AND WARRANTIES RELATING TO SILVERBOX PARTIES

Subject to Section 9.8, except (a) as set forth on the SilverBox Disclosure Schedules, or (b) as set forth in any SilverBox SEC Reports (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), each SilverBox Party hereby represents and warrants to the Company and Blocker Corp as follows:

Section 4.1Organization and Qualification. Each SilverBox Party is duly organized, validly existing and in good standing (or the equivalent thereof) under the Laws of its jurisdiction of organization. Each SilverBox Party 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, a SilverBox Material Adverse Effect.

Section 4.2Authority. Each SilverBox Party has the requisite power and authority to execute and deliver this Agreement and each of the Ancillary Documents to which it is or will be a party, to perform its covenants, agreements and obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. Subject to the receipt of the SilverBox Shareholder Approval pursuant to Section 5.7 and the consents and approvals to be obtained by Pubco, Merger Sub 1 and Merger Sub 2 pursuant to Section 5.8, the execution and delivery of this Agreement, the Ancillary Documents to which a SilverBox Party is or will be a party and the consummation of the transactions contemplated hereby and thereby have been (or, in the case of any Ancillary Document entered into after the date of this Agreement, will be upon execution thereof) duly authorized by all necessary exempted company, corporate, limited liability company or other similar action on the part of such SilverBox Party. This Agreement has been and each Ancillary Document to which a SilverBox Party is or will be a party will be, upon execution thereof, duly and validly executed and delivered by such SilverBox Party and constitutes or will constitute, upon execution thereof, as applicable, a valid, legal and binding agreement of such SilverBox Party (assuming this Agreement has been and the Ancillary Documents to which a SilverBox Party is or will be a party are or will be, upon execution thereof, as applicable, duly authorized, executed and delivered by the other Persons party hereto or thereto, as applicable), enforceable against such SilverBox Party in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).

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Section 4.3Consents and Requisite Governmental Approvals; No Violations.

(a)No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity is required on the part of a SilverBox Party with respect to its execution, delivery or performance of its obligations under this Agreement or the Ancillary Documents to which it is or will be party or the consummation of the transactions contemplated by this Agreement or by the Ancillary Documents, except for (i) compliance with and filings under the HSR Act, (ii) the filing with the SEC of (A) the Registration Statement / Proxy Statement and the declaration of the effectiveness thereof by the SEC and (B) such reports under Section 13(a) or 15(d) of the Exchange Act as may be required in connection with this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, (iii) such filings with and approvals of Nasdaq or NYSE, as applicable, to permit the shares of Pubco Common Stock to be issued in connection with the transactions contemplated by this Agreement and the other Ancillary Documents to be listed on Nasdaq or NYSE, as applicable, (iv) the filing of the Pubco Certificate of Merger, (v) the filing of the Blocker Certificate of Merger, (vi) the consents and approvals to be obtained by Pubco, Merger Sub 1 and Merger Sub 2 pursuant to Section 5.8, (vii) the SilverBox Shareholder Approval or (viii) any other consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not have a SilverBox Material Adverse Effect.

(b)Neither the execution, delivery or performance by a SilverBox Party of this Agreement nor the Ancillary Documents to which such SilverBox Party is or will be a party nor the consummation by such SilverBox Party of the transactions contemplated hereby or thereby will, directly or indirectly (with or without due notice or lapse of time or both) (i) result in any breach of any provision of the Governing Documents of a SilverBox Party, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of any Contract or Permit to which a SilverBox Party is a party or bound, as applicable, (iii) violate, or constitute a breach under, any Order or applicable Law to which a SilverBox Party or any of its properties or assets are bound or (iv) result in the creation or imposition of any Lien upon any of the assets or properties (other than any Permitted Liens) of a SilverBox Party, except in the case of clauses (ii) through (iv) above, as would not have a SilverBox Material Adverse Effect.

Section 4.4Brokers. Except for fees (including the amounts due and payable assuming the Closing occurs) set forth on Section 4.4 of the SilverBox Disclosure Schedules (which fees shall be the sole responsibility of the SilverBox, except as otherwise provided in Section 9.6), no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of any SilverBox Party for which such SilverBox Party has any obligation.

Section 4.5Information Supplied. None of the information supplied or to be supplied by or on behalf of a SilverBox Party expressly for inclusion or incorporation by reference prior to the Closing 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 Pre-Closing SilverBox Holders or at the time of the SilverBox Shareholders Meeting and, in the case of any amendment thereto, at the time of such 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.

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Section 4.6Capitalization of the SilverBox Parties.

(a) Section 4.6(a) of the SilverBox Disclosure Schedules sets forth a true, correct and complete statement of the number and class or series (as applicable) of the issued and outstanding SilverBox Shares and the SilverBox Warrants as of the date of this Agreement. Such Equity Securities (i) have been duly authorized, validly issued and, with respect to the SilverBox Shares only, are fully paid and nonassessable, (ii) were not issued in violation of the Governing Documents of SilverBox, (iii) are not subject to any preemptive rights, call option, right of first refusal, subscription rights, transfer restrictions or similar rights of any Person (other than transfer restrictions under applicable Securities Laws or under the Governing Documents of SilverBox) and were not issued in violation of any preemptive rights, call option, right of first refusal, subscription rights, transfer restrictions or similar rights of any Person and (iv) have been offered, sold and issued in all material respects with applicable Law, including securities Laws. Except for the SilverBox Shares and SilverBox Warrants set forth on Section 4.6(a) of the SilverBox Disclosure Schedules (assuming that no SilverBox Shareholder Redemptions are effected), immediately prior to Closing, there shall be no other outstanding Equity Securities of SilverBox.

(b)As of the date of this Agreement, the authorized capital stock of SilverBox consists of (i) 100,000,000 SilverBox Class A Shares, (ii) 10,000,000 SilverBox Class B Shares and (iii) 1,000,000 shares of preferred stock, each with a par value of $0.0001 per share. Upon the consummation of the PIPE Financing and FPA Financing, the outstanding SilverBox Class C Shares issued in connection therewith (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 SilverBox is a party or bound. On the Closing Date after the time at which the Effective Time occurs and the closings under the Subscription Agreements, and the Forward Purchase Agreement have occurred, all of the issued and outstanding shares of Pubco Common Stock (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 SilverBox or Pubco is a party or bound.

(c)Except as expressly contemplated by this Agreement, the Ancillary Documents, the SilverBox SEC Reports or the transactions contemplated hereby or thereby or as otherwise mutually agreed to by the Company and SilverBox, there are no outstanding (A) equity appreciation, phantom equity or profit participation rights or (B) options, restricted stock, 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 SilverBox and, except as expressly contemplated by this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby or as otherwise mutually agreed in writing by the Company and SilverBox, there is no obligation of SilverBox, 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 SilverBox.

(d)The Equity Securities of Pubco, Merger Sub 1 and Merger Sub 2 outstanding as of the date of this Agreement (i) have been duly authorized and validly issued and are fully paid and nonassessable, (ii) were issued in compliance in all material respects with applicable Law, and (iii) were not issued in breach or violation of any preemptive rights or Contract to which Pubco, Merger Sub 1 or Merger Sub 2 (as the case may be) is a party or bound. All of the outstanding Equity Securities of Pubco, Merger Sub 1 and Merger Sub 2 are owned directly or indirectly by SilverBox free and clear of all Liens (other than transfer restrictions under applicable Securities Law). SilverBox has no Subsidiaries other than Pubco, Merger Sub 1 and Merger Sub 2 and does not own, directly or indirectly, any Equity Securities in any Person other than Pubco, Merger Sub 1 and Merger Sub 2.

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Section 4.7Investment Company Act. SilverBox 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. SilverBox constitutes an “emerging growth company” within the meaning of the JOBS Act.

Section 4.8SEC Filings. Except as set forth on Section 4.8 of the SilverBox Disclosure Schedules, SilverBox has timely filed or furnished all statements, forms, reports and documents required to be filed or furnished by it prior to the date of this Agreement with the SEC pursuant to Federal Securities Laws since its initial public offering (collectively, and together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of filing, the “SilverBox SEC Reports”), and, as of the Closing, will have filed or furnished all other statements, forms, reports and other documents required to be filed or furnished by it subsequent to the date of this Agreement with the SEC pursuant to Federal Securities Laws through the Closing (collectively, and together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of filing, but excluding the Registration Statement / Proxy Statement, the “Additional SilverBox SEC Reports”). Each of the SilverBox SEC Reports, as of their respective dates of filing, and as of the date of any amendment or filing that superseded the initial filing, complied and each of the Additional SilverBox SEC Reports, as of their respective dates of filing, and as of the date of any amendment or filing that superseded the initial filing, will comply, in all material respects with the applicable requirements of the Federal Securities Laws (including, as applicable, the Sarbanes-Oxley Act and any rules and regulations promulgated thereunder) applicable to the SilverBox SEC Reports or the Additional SilverBox SEC Reports (for purposes of the Additional SilverBox SEC Reports, assuming that the representation and warranty set forth in Section 3.25 is true and correct in all respects with respect to all information supplied by or on behalf of Group Companies expressly for inclusion or incorporation by reference therein). As of their respective dates of filing, the SilverBox SEC Reports did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made or will be made, as applicable, not misleading (for purposes of the Additional SilverBox SEC Reports, assuming that the representation and warranty set forth in Section 3.25 is true and correct in all respects with respect to all information supplied by or on behalf of Group Companies expressly for inclusion or incorporation by reference therein). As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the SilverBox SEC Reports.

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Section 4.9Trust Account. As of the date of this Agreement, SilverBox has an amount in cash in the Trust Account equal to at least $345,000,000. The funds held in the Trust Account 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 pursuant to that certain Investment Management Trust Agreement, dated as of February 25, 2021 (the “Trust Agreement”), between SilverBox and Continental, as trustee (the “Trustee”). 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 Trust Agreement in the SilverBox SEC Reports to be inaccurate in any material respect or, to SilverBox’s knowledge, 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 Pre-Closing SilverBox Holders who shall have elected to redeem their SilverBox Class A Shares pursuant to the Governing Documents of SilverBox or (iii) if SilverBox fails to complete a business combination within the allotted time period set forth in the Governing Documents of SilverBox and liquidates the Trust Account, subject to the terms of the Trust Agreement, SilverBox (in limited amounts to permit SilverBox to pay the expenses of the Trust Account’s liquidation, dissolution and winding up of SilverBox) and then the Pre-Closing SilverBox Holders). 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 SilverBox and the Trust Agreement. SilverBox has performed all material obligations required to be performed by it to date under, and is not in material default or delinquent in performance or any other respect (claimed or actual) in connection with the Trust Agreement, and, to SilverBox’s knowledge, no event has occurred which, with due notice or lapse of time or both, would constitute such a material breach or default thereunder. As of the date of this Agreement, there are no claims or proceedings pending or, to SilverBox’s knowledge, threatened with respect to the Trust Account. Since February 25, 2021, SilverBox 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 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 Pre-Closing SilverBox Holders who have elected to redeem their SilverBox Class A Shares pursuant to the Governing Documents of SilverBox, each in accordance with the terms of and as set forth in the Trust Agreement, SilverBox shall have no further obligation under either the Trust Agreement or the Governing Documents of SilverBox to liquidate or distribute any assets held in the Trust Account, and the Trust Agreement shall terminate in accordance with its terms.

Section 4.10Transactions with Affiliates. Section 4.10 of the SilverBox Disclosure Schedules sets forth, and SilverBox has made available to the Company true and complete copies of, all Contracts between (a) SilverBox, on the one hand, and (b) any SilverBox Related Party, on the other hand, other than Contracts entered into after the date of this Agreement that are either permitted pursuant to Section 5.8 or entered into in accordance with Section 5.8. No SilverBox Related Party (A) owns any interest in any material asset used in the business of SilverBox, (B) possesses, directly or indirectly, any material financial interest in, or is a director or executive officer of, any Person which is a material client, supplier, customer, lessor or lessee of SilverBox or (C) owes any material amount to, or is owed material any amount by, SilverBox. All Contracts, arrangements, understandings, interests and other matters that are required to be disclosed pursuant to this Section 4.10 are referred to herein as “SilverBox Related Party Transactions”.

Section 4.11Litigation. As of the date of this Agreement, there is (and since its organization, incorporation or formation, as applicable, there has been) no Proceeding pending or, to SilverBox’s knowledge, threatened against or involving a SilverBox Party that, if adversely decided or resolved, would be material to a SilverBox Party. No SilverBox Party nor any of their respective properties or assets is subject to any material Order. As of the date of this Agreement, there are no material Proceedings by a SilverBox Party pending against any other Person.

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Section 4.12Compliance with Applicable Law. SilverBox is (and since its incorporation has been) in compliance with all applicable Laws, except as would not have a SilverBox Material Adverse Effect.

Section 4.13Business Activities.

(a)Since its incorporation, SilverBox has not conducted any business activities other than activities (i) in connection with or incident or related to its incorporation or continuing corporate (or similar) existence, (ii) 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 Ancillary Documents, the performance of its covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby, (iii) those that are administrative, ministerial or otherwise immaterial in nature, or (iv) related to SilverBox’s initial public offering. Except as set forth in SilverBox’s Governing Documents, there is no Contract binding upon any SilverBox Party or to which any SilverBox Party is a party which has or would reasonably be expected to have the effect of prohibiting or materially impairing any business practice of it or its Subsidiaries, any acquisition of property by it or its Subsidiaries or the conduct of business by it or its Subsidiaries (including, in each case, following the Closing).

(b)Each of Pubco, Merger Sub 1 and Merger Sub 2 was organized solely for the purpose of entering into this Agreement, the Ancillary Documents and consummating the transactions contemplated hereby and thereby and has not engaged in any activities or business, other than those incident or related to or incurred in connection with its organization, incorporation or formation, as applicable, or continuing corporate (or similar) existence or the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of its covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby.

Section 4.14Internal Controls; Listing; Financial Statements.

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

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(b) SilverBox 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 SilverBox to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of SilverBox.

(c)Since its initial public offering, SilverBox has complied in all material respects with all applicable listing and corporate governance rules and regulations of Nasdaq. The classes of securities representing issued and outstanding SilverBox Class A Shares 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 Proceeding pending or, to SilverBox’s knowledge, threatened against SilverBox by Nasdaq or the SEC with respect to any intention by such entity to deregister SilverBox Class A Shares or prohibit or terminate the listing of SilverBox Class A Shares on Nasdaq. Neither SilverBox nor any of its Affiliates has taken any action that is designed to terminate the registration of SilverBox Class A Shares under the Exchange Act.

(d)The SilverBox SEC Reports contain true and complete copies of the applicable SilverBox Financial Statements. The SilverBox Financial Statements (i) fairly present in all material respects the financial position of SilverBox 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 footnotes), (ii) were prepared in conformity with GAAP applied on a consistent basis during the periods involved (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 footnotes), (iii) in the case of the audited SilverBox 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).

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

(f)Since its incorporation and through the date of this Agreement, other than the material weakness disclosed in SilverBox’s Form 10-Q for the quarterly period ended March 31, 2021 related solely to the revised SEC guidance with respect to SilverBox’s change in “warrant liability accounting.” SilverBox 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 SilverBox, (ii) a “material weakness” in the internal controls over financial reporting of SilverBox or (iii) any fraud that involves management or other employees of SilverBox who have a significant role in the internal controls over financial reporting of SilverBox.

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(g)Notwithstanding anything to the contrary contained in this Agreement, no representation or warranty is made by SilverBox as to the accounting treatment of its issued and outstanding warrants or other changes in accounting arising in connection with any required restatement of SilverBox’s historical financial statements, or as to any deficiencies in disclosure (including with respect to financial statement presentation or accounting and disclosure controls) arising from the treatment of such warrants as equity rather than liabilities or other required changes in the SilverBox SEC Reports.

Section 4.15No Undisclosed Liabilities. Except for the Liabilities (a) set forth in Section 4.15 of the SilverBox Disclosure Schedules, (b) incurred in connection with the due diligence relating to, or the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of a SilverBox Party’s covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby (it being understood and agreed that the identity of expected third parties that are, as of the date hereof, entitled to receive any material amount of fees, expenses or other payments in connection with the matters described in this clause (b) shall be set forth on Section 4.15 of the SilverBox Disclosure Schedules), (c) that are incurred in connection with or incident or related to any SilverBox Party’s organization, incorporation or formation, as applicable, or continuing corporate (or similar) existence, in each case, which are immaterial in nature, (d) that are incurred in connection with activities that are administrative or ministerial, in each case, which are immaterial in nature, (e) that are either permitted pursuant to Section 5.9(f) or incurred in accordance with Section 5.9(f) (for the avoidance of doubt, in each case, with the written consent of the Company) or (f) set forth or disclosed in the SilverBox Financial Statements included in the SilverBox SEC Reports, no SilverBox Party has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.

Section 4.16Compliance with International Trade & Anti-Corruption Laws.

(a)Since SilverBox’s incorporation, neither SilverBox nor, to SilverBox’s knowledge, any of its Representatives, or any other Persons acting for or on behalf of any of the foregoing, is or has been, (i) a Person named on any Sanctions and Export Control Laws-related list of designated Persons maintained by a Governmental Entity; (ii) located, organized or resident in a Sanctioned Jurisdiction; (iii) an entity majority owned, directly or indirectly, by one or more Persons described in clause (i) or (ii); or (iv) otherwise engaging in dealings with or for the benefit of any Person described in clauses (i) through (iii) or any Sanctioned Jurisdiction, in either case in violation of Sanctions and Export Control Laws.

(b)Since SilverBox’s incorporation, neither SilverBox nor, to SilverBox’s knowledge, any of its Representatives, or any other Persons acting for or on behalf of any of the foregoing has (i) made, offered, promised, paid or received, directly or indirectly, any unlawful bribes, kickbacks or other similar payments to or from any Government Official or any Person, (ii) made or paid any contributions, directly or indirectly, to a domestic or foreign political party or candidate to secure any improper advantage or to obtain or retain business, or (iii) otherwise made, offered, received, authorized, promised or paid any improper payment under any Anti-Corruption Laws.

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Section 4.17Tax Matters. Except as has not had, and would not reasonably be expected to have, a SilverBox Material Adverse Effect:

(a)All Tax Returns required to be filed by each SilverBox Party have been timely filed pursuant to applicable Laws (taking into account any extension of time within which to file), all such Tax Returns are true, complete and correct, and each SilverBox Party has paid all Taxes due and payable by it that are shown as due and payable on such Tax Returns. Each SilverBox Party has timely and properly withheld and paid to the appropriate Tax Authority all Taxes required to have been withheld and paid by it in connection with any amounts paid or owing to any employee, independent contractor, creditor, equityholder or other third party and has otherwise complied with all applicable Laws relating to such withholding and payment of Taxes.

(b)There is no Proceeding now being conducted or pending with respect to any Taxes or Tax Returns of any SilverBox Party. All deficiencies for Taxes asserted or assessed in writing against any SilverBox Party have been fully paid, settled or withdrawn.

(c)Except in the ordinary course of business, no SilverBox Party has agreed to any extension or waiver of the statute of limitations applicable to any Tax or Tax Return, or any extension of time with respect to a period of Tax collection, assessment or deficiency, which period (after giving effect to such extension or waiver) has not yet expired, and no request for any such waiver or extension is currently pending.

(d)No SilverBox Party has been a party to any “listed transaction” and within the meaning of Treasury Regulations Section 1.6011-4(b)(2).

(e)No SilverBox Party will be required to make any payment after the date of the Latest Balance Sheet as a result of an election under Section 965 of the Code.

(f)There is no Lien for Taxes on any of the assets of any SilverBox Party.

(g)No SilverBox Party has any liability for Taxes of any Person (other than any SilverBox Party) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. Law), as a transferee or successor, by contract or by operation of Law (in each case, other than pursuant to this Agreement or any Ancillary Document or any customary commercial agreements not primarily related to Taxes).

(h)No SilverBox Party or any of their respective Affiliates has taken or agreed to take any action, or is aware of any fact, plan or circumstance, that would reasonably be expected to prevent the Pubco Merger from qualifying for the Intended Tax Treatment.

Section 4.18Status of SilverBox Parties. For U.S. federal income Tax purposes, each of (a) Pubco and SilverBox are, and have been since formation, treated as corporations and (b) Merger Sub 1 and Merger Sub 2 are, and have been since formation, treated as disregarded entities. Each of Pubco, Merger Sub 1 and Merger Sub 2 (i) was formed solely for the purpose of entering into the transactions contemplated by this Agreement and (ii) since the date of its formation, has not carried on any business, conducted any operations or incurred any liabilities or obligations other than the execution of this Agreement, the performance of its obligations hereunder and matters ancillary thereto.

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Section 4.19Investigation; No Other Representations.

(a)Each SilverBox Party, 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 Group Companies and (ii) it has been furnished with or given access to such documents and information about the Group Companies and their respective 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 Ancillary Documents and the transactions contemplated hereby and thereby.

(b)In entering into this Agreement and the Ancillary Documents to which it is or will be a party, each SilverBox Party has relied solely on its own investigation and analysis and the representations and warranties expressly set forth in Article 3 and in the Ancillary Documents to which it is or will be a party and no other representations or warranties of the Company, Blocker Corp, any Company Non-Party Affiliate or any other Person, either express or implied, and each SilverBox Party, 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 3 and in the Ancillary Documents to which it is or will be a party, none of the Company, Blocker Corp, any Company Non-Party Affiliate 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 Ancillary Documents or the transactions contemplated hereby or thereby.

Section 4.20EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO the COMPANY 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 4 AND THE ANCILLARY DOCUMENTS, NONE OF THE SILVERBOX PARTIEs, ANY SILVERBOX NON-PARTY AFFILIATE OR ANY OTHER PERSON MAKES, and EACH SILVERBOX PARTY EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, INCLUDING AS TO THE MATERIALS RELATING TO THE BUSINESS AND AFFAIRS OR HOLDINGS OF ANY SILVERBOX PARTY THAT HAVE BEEN MADE AVAILABLE TO THE COMPANY OR ANY OF ITS REPRESENTATIVES OR IN ANY PRESENTATION OF THE BUSINESS AND AFFAIRS OF ANY SILVERBOX PARTY BY OR ON BEHALF OF THE MANAGEMENT OF ANY SILVERBOX PARTY OR OTHERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR BY THE ANCILLARY DOCUMENTS, 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 THE COMPANY OR ANY COMPANY NON-PARTY AFFILIATE IN EXECUTING, DELIVERING AND PERFORMING THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY or THEREBY. Except for the representations and warranties expressly set forth in THIS Article 4 or the ancillary DOCUMENTS, 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 SILVERBOX PARTY ARE NOT AND SHALL NOT BE DEEMED TO BE OR TO INCLUDE REPRESENTATIONS OR WARRANTIES OF ANY SILVERBOX PARTY, ANY SILVERBOX NON-PARTY AFFILIATE OR ANY OTHER PERSON, AND ARE NOT AND SHALL NOT BE DEEMED TO BE RELIED UPON BY THE COMPANY OR ANY COMPANY NON-PARTY AFFILIATE IN EXECUTING, DELIVERING or PERFORMING THIS AGREEMENT, THE ANCILLARY DOCUMENTS or THE TRANSACTIONS CONTEMPLATED Hereby or thereby. NOTHING IN THIS SECTION 4.19 WILL RELIEVE ANY PARTY OF LIABILITY IN THE CASE OF FRAUD (FOR THE AVOIDANCE OF DOUBT, AS DEFINED HEREIN) COMMITTED BY SUCH PARTY.

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Article 5
COVENANTS

Section 5.1Conduct of Business of the Group Companies.

(a)From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall, and the Company shall cause its Subsidiaries to, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.1(a) of the Company Disclosure Schedules, or as consented to in writing by SilverBox (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned or delayed), (i) operate the business of the Group Companies in the ordinary course in all material respects and (ii) use commercially reasonable efforts to maintain and preserve intact in all material respects the business organization, assets, properties and material business relations of the Group Companies, taken as a whole.

(b)Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall, and the Company shall cause its Subsidiaries to, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.1(b) of the Company Disclosure Schedules or as consented to in writing by SilverBox (such consent, other than in the case of Section 5.1(b)(i), Section 5.1(b)(ii), Section 5.1(b)(iii), Section 5.1(b)(iv), Section 5.1(b)(xii), Section 5.1(b)(xiv), Section 5.1(b)(xv), or Section 5.1(b)(xvii), not to be unreasonably withheld, conditioned or delayed), not do any of the following:

(i)declare, set aside, make or pay a dividend on, or make any other distribution or payment in respect of, any Equity Securities of any Group Company or repurchase any outstanding Equity Securities of any Group Company, other than (A) dividends or distributions, declared, set aside or paid by any of the Company’s Subsidiaries to the Company or any of its Subsidiaries that is, directly or indirectly, wholly owned by the Company and (B) Tax distributions in accordance with the Company LLC Agreement in an aggregate amount less than $1,000,000;

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(ii)(A) merge, consolidate, combine or amalgamate any Group Company with any Person or (B) 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, other than, in the case of this clause (B), any acquisition by the Company or its Subsidiaries with a purchase price of less than $50,000,000; provided that no such acquisition may (1) result in a material change to or inaccuracy in the financial projections with respect to the Company and its Subsidiaries delivered by or on behalf of the Company for inclusion in the SilverBox Investor Presentation being delivered concurrently with the announcement of this transaction or (2) result in any delay in obtaining the declaration of effectiveness of the Registration Statement / Proxy Statement under the Securities Act or, once declared effective under the Securities Act, require any amendment to the Registration Statement / Proxy Statement;

(iii)adopt any amendments, supplements, restatements or modifications to any Group Company’s Governing Documents;

(iv)transfer, issue, sell, grant or otherwise directly or indirectly dispose of, or subject to a Lien, (A) any Equity Securities of any Group Company or (B) any options, warrants, rights of conversion or other rights, agreements, arrangements or commitments obligating any Group Company to issue, deliver or sell any Equity Securities of any Group Company;

(v)incur, create or assume any Indebtedness, other than (A) intercompany Indebtedness among the Company and its Subsidiaries, and (B) Indebtedness in the ordinary course of business (including revolving credit drawings, capital leases, purchase money security interests, deferred purchase price obligations and earnouts);

(vi)cancel or forgive any Indebtedness (other than intercompany Indebtedness among the Company and its Subsidiaries) in excess of $25,000,000 owed to the Company or any of the Company’s Subsidiaries;

(vii)make any loans, advances or capital contributions to, or guarantees for the benefit of, or any investments in, any Person, other than (A) intercompany loans or capital contributions between the Company and any of its wholly owned Subsidiaries and (B) the reimbursement of expenses of employees in the ordinary course of business;

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(viii) except (x) as required by applicable Law or under the terms of any Employee Benefit Plan of any Group Company that is set forth on Section 3.11(a) of the Company Disclosure Schedules, (y) changes made in connection with annual welfare benefit (non-equity) plan renewals in the ordinary course of business consistent with past practice (it being understood and agreed, for the avoidance of doubt, that in no event shall the exception in this clause (y) be deemed or construed as permitting any Group Company to take any action that is not permitted by any other provision of this Section 5.1(b)), or (z) with respect to an employment agreement, consulting agreement or other services agreement by and between any Group Company and a current director, manager, officer, employee, individual independent contractor or other service provider of any Group Company, which agreements are entered into, amended or otherwise modified in the ordinary course of business and approved by the compensation committee of the board of directors of the Company, (A) amend, modify, adopt, enter into or terminate any Employee Benefit Plan of any Group Company or any material benefit or compensation plan, policy, program or Contract that would be an Employee Benefit Plan if in effect as of the date of this Agreement, (B) increase the compensation or benefits payable to any current or former director, manager, officer, employee, individual independent contractor or other service provider of any Group Company, (C) take any action to accelerate any payment, right to payment, or benefit, or the funding of any payment, right to payment or benefit, payable or to become payable to any current or former director, manager, officer, employee, individual independent contractor or other service provider of any Group Company, (D) grant severance, change in control, retention or termination pay to, or adopt, enter into or amend any severance, retention, termination, employment, consulting, bonus, change in control or severance agreement with any current or former director, manager, officer, employee, individual independent contractor or other service provider of any Group Company, whose annual base salary (or, in the case of an independent contractor, annual compensation) is in excess of $250,000; (E) hire or terminate (other than for “cause”) any director, manager, officer, employee, individual independent contractor or other service provider of any Group Company whose annual base salary (or, in the case of an independent contractor, annual base compensation) is in excess of $250,000, or (F) take any action to amend or waive any performance or vesting criteria or to accelerate the time of payment or vesting of any equity compensation or benefit payable by a Group Company, to the extent inconsistent with disclosure reflected in the Registration Statement / Proxy Statement declared effective under the Securities Act (G) waive or release any noncompetition, non-solicitation, no-hire, nondisclosure or other restrictive covenant obligation of any current or former director, manager, officer, employee, individual independent contractor or other service provider of any Group Company;

(ix) (A) make, change or revoke any material election relating to Taxes or adopt or change any material Tax accounting method, (B) enter into any agreement, settlement or compromise with any Tax Authority relating to any material Tax matter, (C) file any material amended Tax Return, (D) surrender any right to claim any refund of a material amount of Taxes, (E) defer payment of any material amount of Taxes pursuant to the CARES Act, or (F) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of a material amount of Taxes;

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(x)knowingly take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Intended Tax Treatment;

(xi)enter into any settlement, conciliation or similar Contract the performance of which would involve the payment by the Group Companies in excess of $5,000,000, in the aggregate, or that imposes, or by its terms will impose at any point in the future, any material, non-monetary obligations on any Group Company (or SilverBox or any of its Affiliates after the Closing);

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

(xiii)change any Group Company’s methods of accounting in any material respect, other than changes that are made in accordance with PCAOB standards;

(xiv)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;

(xv)(A) amend, modify or terminate any Material Contract of the type described in Section 3.7(a)(x) or Section 3.7(a)(xii)(B) (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract pursuant to its terms), (B) waive any material benefit or right under any Material Contract of the type described in Section 3.7(a)(x) or Section 3.7(a)(xii)(B) or (C) enter into any Contract that would constitute a Material Contract of the type described in Section 3.7(a)(x) or Section 3.7(a)(xii)(B);

(xvi)fail to use commercially reasonable efforts to maintain the Real Properties in substantially the same condition as of the date of this Agreement, except for (A) renovations and other improvements made on or to the Real Properties in the ordinary course of business and (B) ordinary wear and tear, casualty and condemnation;

(xvii)(A) enter into, amend, modify, or waive any material benefit or right under, any Company Related Party Transaction or (B) make any payment or commit to make any payment to any Company Related Party, other than (1) pursuant to any Contract that is expressly disclosed in Section 5.1(b) of the Company Disclosure Schedules, (2) any payment or commitment to make any payment in a single transaction with a value of less than $50,000 and (3) annual bonuses materially consistent with prior practice (and approved by the compensation committee of the board of directors of the Company);

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(xviii)enter into, modify, amend, renew, negotiate, terminate or extend any CBA, or recognize or certify any labor union, works council, labor organization, or group of employees of the Group Companies as the bargaining representative for any employees of the Group Companies;

(xix)adopt or implement any material changes to the Business;

(xx)fail to maintain, keep in force and effect, renew or enhance any of the Group Companies’ insurance policies in effect as of the date of this Agreement; or

(xxi)enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.1.

Notwithstanding anything in this Section 5.1 or this Agreement to the contrary, (a) nothing set forth in this Agreement shall give SilverBox, directly or indirectly, the right to control or direct the operations of the Group Companies prior to the Closing, (b) any action taken, or omitted to be taken, by any Group Company to the extent such act or omission is reasonably determined by the Company, based on the advice of legal counsel, to be necessary to comply with any Law, Order, directive, pronouncement or guideline issued by a Governmental Entity providing for business closures, “sheltering-in-place” or other restrictions that relates to or is a result of COVID-19 shall in no event be deemed to constitute a breach of Section 5.1; provided however that, (i) in the case of clause (b), the Company shall give SilverBox prior written notice of any such act or omission to the extent reasonably practicable, which notice shall describe in reasonable detail the act or omission and the reason(s) that such act or omission is being taken, or omitted to be taken, pursuant to clause (b) and, in the event that it is not reasonably practicable for the Company to give the prior written notice described in this clause (i), the Company shall instead give such written notice to SilverBox promptly after such act or omission and (ii) in no event shall clause (b) be applicable to any act or omission of the type described in Section 5.1(b)(i), Section 5.1(b)(ii), Section 5.1(b)(iii), Section 5.1(b)(iv), Section 5.1(b)(xii), Section 5.1(b)(xiii), Section 5.1(b)(xiv), Section 5.1(b)(xv) or Section 5.1(b)(xvii).

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Section 5.2Efforts to Consummate; Litigation.

(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 7 and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and delivery such Ancillary Document when required pursuant to this Agreement, and (ii) using reasonable best efforts to obtain (A) the PIPE Financing on the terms and subject to the conditions set forth in the Subscription Agreements, and (B) the FPA Financing on the terms and subject to the conditions set forth in the Forward Purchase Agreement). 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 Governmental Entities or other Persons necessary, proper or advisable to consummate the transactions contemplated by this Agreement or the Ancillary Documents; provided however that, if the Closing does not occur, each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any such Consents; provided further that, subject to the following proviso, SilverBox and the Company shall each pay one-half of the HSR Act filing fee at the time of filing; which shall be treated as Company Expenses or SilverBox Expenses, as applicable; provided further that, if the Closing occurs, the fees of each Party will be paid in accordance with Section 9.6. Each Party shall (i) make any appropriate filings pursuant to the HSR Act with respect to the transactions contemplated by this Agreement promptly (and in any event within five Business Days) following the date of this Agreement and (ii) respond as promptly as reasonably practicable to any requests by any Governmental Entity for additional information and documentary material that may be requested pursuant to the HSR Act. SilverBox shall promptly inform the Company of any communication between SilverBox, on the one hand, and any Governmental Entity, on the other hand, and the Company shall promptly inform SilverBox of any communication between the Company, on the one hand, and any Governmental Entity, on the other hand, in either case, regarding any of the transactions contemplated by this Agreement or any Ancillary Document. Without limiting the foregoing, (a) the Parties agree to request early termination of the applicable waiting period under the HSR Act, and (b) 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 Governmental Entity not to consummate the transactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of SilverBox and the Company. Nothing in this Section 5.2 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 Group Company 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 foregoing measures with respect to any other Party or any of its Affiliates, except with SilverBox’s and the Company’s prior written consent.

(b)From and after the date of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, SilverBox, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of SilverBox) or SilverBox (in the case of the Company), 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 Governmental Entity relating to the transactions contemplated by this Agreement or the Ancillary Documents. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with, in the case of SilverBox, the Company, or, in the case of the Company, SilverBox in advance and, to the extent not prohibited by such Governmental Entity, gives, in the case of SilverBox, the Company, or, in the case of the Company, SilverBox, the opportunity to attend and participate in such meeting or discussion.

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(c)Notwithstanding anything to the contrary in this Agreement, in the event that this Section 5.2 conflicts with any other covenant or agreement in this Article 5 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.

(d)From and after the date of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, SilverBox, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder Proceedings (including derivative claims) relating to this Agreement, any Ancillary Document or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of SilverBox, SilverBox or any of its Representatives (in their capacity as a representative of SilverBox) or, in the case of the Company, any Group Company or any of their respective Representatives (in their capacity as a representative of the Company). SilverBox and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation and (iv) reasonably cooperate with each other. Notwithstanding the foregoing, in no event shall (A) the Company, any other Group Company or any of their respective Representatives settle or compromise any Transaction Litigation without the prior written consent of SilverBox (not to be unreasonably withheld, conditioned or delayed) or (B) any of the SilverBox Parties or any of their respective Representatives settle or compromise any Transaction Litigation without the Company’s prior written consent.

Section 5.3Confidentiality and 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 5.3(a) or the Confidentiality Agreement conflicts with any other covenant or agreement contained herein or any Ancillary Document that contemplates the disclosure, use or provision of information or otherwise, then such other covenant or agreement contained herein shall govern and control to the extent of such conflict.

(b)From and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, upon reasonable advance written notice, the Company shall provide, or cause to be provided, to SilverBox and its Representatives during normal business hours reasonable access to the directors, officers, books and records of the Group Companies (in a manner so as to not interfere with the normal business operations of the Group Companies). Notwithstanding the foregoing, none of the Group Companies shall be required to provide to SilverBox or any of its Representatives any information (i) if and to the extent doing so would (A) violate any Law to which any Group Company is subject, including any Privacy Law, (B) result in the disclosure of any trade secrets of third parties in breach of any Contract with such third party, (C) violate any legally-binding obligation of any Group Company with respect to confidentiality, non-disclosure or privacy or (D) jeopardize protections afforded to any Group Company under the attorney-client privilege or the attorney work product doctrine; provided that, in case of each of clauses (A) through (D), the Company shall, and shall cause the other Group Companies 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 Group Company, on the one hand, and SilverBox, any SilverBox Non-Party Affiliate 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 the Company shall, in the case of clause (i) or (ii), provide prompt written notice of the withholding of access or information on any such basis.

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(c)From and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, upon reasonable advance written notice, SilverBox shall provide, or cause to be provided, to the SilverBox and its Representatives during normal business hours reasonable access to the directors, officers, books and records of SilverBox (in a manner so as to not interfere with the normal business operations of SilverBox). Notwithstanding the foregoing, SilverBox shall not be required to provide, or cause to be provided to, the Company or any of its Representatives any information (i) if and to the extent doing so would (A) violate any Law to which SilverBox is subject, (B) result in the disclosure of any trade secrets of third parties in breach of any Contract with such third party, (C) violate any legally-binding obligation of SilverBox with respect to confidentiality, non-disclosure or privacy or (D) jeopardize protections afforded to SilverBox under the attorney-client privilege or the attorney work product doctrine; provided that, in case of each of clauses (A) through (D), SilverBox 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 SilverBox, on the one hand, and any Group Company, any Company Non-Party Affiliate 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 SilverBox shall, in the case of clause (i) or (ii), provide prompt written notice of the withholding of access or information on any such basis.

Section 5.4Public Announcements.

(a)Subject to Section 5.4(b), Section 5.6 and Section 5.7, none of the Parties or any of their respective Representatives shall issue any press releases or make any public announcements (including communications disseminated via social media, news feeds, chat rooms or other similar electronic platforms for communicating to persons who are not otherwise obligated to maintain the confidentiality of such communications) with respect to this Agreement or the transactions contemplated hereby or any subject matter disclosed or required to be disclosed in the Registration Statement / Proxy Statement without the prior written consent of, prior to the Closing, the Company and SilverBox or, after the Closing, SilverBox; provided however that, each Party may make any such announcement or other communication (i) if such announcement or other communication is required by applicable Law, in which case (A) prior to the Closing, the disclosing Party and its Representatives shall use reasonable best efforts to consult with the Company, if the disclosing party is SilverBox, or SilverBox, if the disclosing party is the Company, to review such announcement or communication and the opportunity to comment thereon and the disclosing Party shall consider such comments in good faith, or (B) after the Closing, the disclosing Party and its Representatives shall use reasonable best efforts to consult with SilverBox and the disclosing Party shall consider such comments in good faith, (ii) to the extent such announcements or other communications contain only information previously disclosed in a public statement, press release or other communication previously approved in accordance with this Section 5.4 and (iii) to Governmental Entities in connection with any Consents required to be made under this Agreement, the Ancillary Documents or in connection with the transactions contemplated hereby or thereby. Notwithstanding anything to the contrary in this Section 5.4 or otherwise in this Agreement, the Parties agree that the Sponsor and its Representatives may provide general information about the subject matter of this Agreement and the transactions contemplated hereby to any direct or indirect current or prospective investor or in connection with normal fund raising or related marketing or informational or reporting activities, provided the recipients of such information are subject to customary confidentiality obligations prior to the receipt of such information.

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(b)The initial press release concerning this Agreement and the transactions contemplated hereby shall be a joint press release in the form agreed by the Company and SilverBox 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. Promptly after the execution of this Agreement, SilverBox 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 the Company shall have the opportunity to review and comment upon prior to filing and SilverBox shall consider such comments in good faith. The Company, on the one hand, and SilverBox, on the other hand, shall mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by either the Company or SilverBox, 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, the Parties shall cause the Closing Press Release to be released. Promptly after the Closing (but in any event within four Business Days after the Closing), SilverBox 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. In connection with the preparation of each of the Signing Press Release, the Signing Filing, the Closing Press Release and the Closing Filing, each Party shall, upon written request by any other Party, furnish such other Party with all information concerning itself, its directors, officers and equityholders, and such other matters as may be reasonably necessary for such press release or filing.

Section 5.5Exclusive Dealing.

(a)From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall not, and shall cause the other Group Companies and its and their respective Representatives not to, directly or indirectly: (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing non-public information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Company 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 Company Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of any Equity Securities of any Group Company (or any Affiliate or successor of any Group Company); or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the foregoing. The Company agrees to (A) notify SilverBox promptly upon receipt of any Company Acquisition Proposal by any Group Company, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and (B) keep SilverBox reasonably informed on a current basis of any modifications to such offer or information.

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(b)From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SilverBox shall not, and shall cause its Representatives not to, directly or indirectly: (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing non-public information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a SilverBox 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 SilverBox Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a SilverBox Acquisition Proposal; (iv) prepare or take any steps in connection with an offering of any securities of SilverBox (or any Affiliate or successor of SilverBox); or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the foregoing.

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Section 5.6Preparation of Registration Statement / Proxy Statement. As promptly as reasonably practicable following the date of this Agreement (which, for the avoidance of doubt, shall be no earlier than the availability of the Required Company Audited Financial Statements), SilverBox, Pubco and the Company shall prepare and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by either SilverBox or the Company, as applicable), and SilverBox and Pubco shall file with the SEC, the Registration Statement / Proxy Statement (it being understood that the Registration Statement / Proxy Statement shall include (x) a proxy statement of SilverBox which will be used for the SilverBox 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 SilverBox’s Governing Documents, applicable Law, and any applicable rules and regulations of the SEC and Nasdaq or NYSE, as applicable, and (y) a prospectus of Pubco that will be used to register the Pubco Common Stock and Pubco Warrants to be issued in connection with the transactions contemplated by this Agreement). The Registration Statement / Proxy Statement shall be in form and substance reasonably acceptable to the Company. Each of SilverBox, Pubco and the Company shall use its reasonable best efforts to (a) cause the Registration Statement / Proxy Statement to comply in all material respects with the applicable rules and regulations promulgated by the SEC (including, with respect to the Group Companies, the provision of financial statements of, and any other information with respect to, the Group Companies for all periods, and in the form, required to be included in the Registration Statement / Proxy Statement under Securities Laws or in response to any comments from the SEC); (b) promptly notify the others of, reasonably cooperate with each other with respect to and respond promptly to any comments of the SEC or its staff; (c) have the Registration Statement / Proxy Statement declared effective under the Securities Act as promptly as reasonably practicable after it is filed with the SEC; and (d) keep the Registration Statement / Proxy Statement effective through the Closing in order to permit the consummation of the transactions contemplated by this Agreement. SilverBox and Pubco, on the one hand, and the Company, on the other hand, shall promptly furnish, or cause to be furnished, to the other all information concerning such Party, its Non-Party Affiliates and their respective Representatives that may be required or reasonably requested in connection with any action contemplated by this Section 5.6 or for including in any other statement, filing, notice or application made by or on behalf of SilverBox or Pubco (as applicable) to the SEC or Nasdaq or NYSE, as applicable, in connection with the transactions contemplated by this Agreement or the Ancillary Documents. 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 SilverBox and Pubco, the Company, or, in the case of the Company, SilverBox and Pubco thereof; (ii) such Party shall prepare and mutually agree upon with, in the case of SilverBox and Pubco, the Company, or, in the case of the Company, SilverBox and Pubco (in either case, such agreement not to be unreasonably withheld, conditioned or delayed) an amendment or supplement to the Registration Statement / Proxy Statement; (iii) SilverBox and Pubco shall file such mutually agreed upon amendment or supplement with the SEC; and (iv) the Parties shall reasonably cooperate, if appropriate, in mailing such amendment or supplement to the Pre-Closing SilverBox Holders. SilverBox and Pubco shall as promptly as reasonably practicable advise the Company of the time of effectiveness of the Registration Statement / Proxy Statement, the issuance of any stop order relating thereto or the suspension of the qualification of Pubco Common Stock and Pubco Warrants for offering or sale in any jurisdiction, and SilverBox, Pubco and the Company 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 Non-Party Affiliates or its or their respective 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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Section 5.7SilverBox Shareholder Approval. As promptly as reasonably practicable following the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, SilverBox shall (a) duly give notice of and (b) use reasonable best efforts to duly convene and hold a special meeting of the stockholders (the “SilverBox Shareholders Meeting”) in accordance with the Governing Documents of SilverBox, for the purposes of obtaining the SilverBox Shareholder Approval and, if applicable, any approvals related thereto and providing its shareholders with the opportunity to elect to effect a SilverBox Shareholder Redemption. SilverBox shall, through unanimous approval of its board of directors, recommend to its shareholders (the “SilverBox Board Recommendation”), (i) the adoption and approval of this Agreement and the transactions contemplated hereby (the “Business Combination Proposal”); (ii) the adoption and approval of the Amended and Restated SilverBox Certificate of Incorporation (the “Charter Proposal”), (iii) the adoption and approval of the Pubco Merger (the “Merger Proposal”); (iv) the adoption and approval of each other proposal that either the SEC or Nasdaq or NYSE, as applicable (or the respective staff members thereof) indicates is necessary in its comments to the Registration Statement / Proxy Statement or in correspondence related thereto; (v) the adoption and approval of each other proposal reasonably agreed to by SilverBox, Pubco and the Company as necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement or the Ancillary Documents; and (vi) the adoption and approval of a proposal for the adjournment of the SilverBox Shareholders Meeting, if necessary, for any of the reasons set forth in clauses (A) through (D) of the following proviso (such proposals in clauses (i) through (vi), collectively, the “Transaction Proposals”); provided that, SilverBox may adjourn the SilverBox Shareholders Meeting (A) to solicit additional proxies for the purpose of obtaining the SilverBox Shareholder Approval, (B) for the absence of a quorum, (C) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosures that SilverBox has determined, based on the advice of outside legal counsel, is reasonably likely to be required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Pre-Closing SilverBox Holders prior to the SilverBox Shareholders Meeting or (D) if the holders of SilverBox Class A Shares have elected to redeem a number of SilverBox Class A Shares as of such time that would reasonably be expected to result in the condition set forth in Section 7.3(d) not being satisfied; provided that, without the consent of the Company, in no event shall SilverBox adjourn the SilverBox Shareholders Meeting for more than 15 Business Days later than the most recently adjourned meeting or to a date that is beyond the Termination Date. The SilverBox Board Recommendation contemplated by the preceding sentence shall be included in the Registration Statement / Proxy Statement. SilverBox covenants that none of the SilverBox Board, any committee of the SilverBox Board or SilverBox shall withdraw or modify, or propose publicly or by formal action of the SilverBox Board, any committee of the SilverBox Board or SilverBox to withdraw or modify, in a manner adverse to the Company, the SilverBox Board Recommendation or any other recommendation by the SilverBox Board or SilverBox of the proposals set forth in the Registration Statement / Proxy Statement, in each case except where the SilverBox Board has determined in good faith, after consultation with outside legal counsel, that withdrawing or modifying any such recommendation is necessary to satisfy the fiduciary duties of SilverBox and the SilverBox Board under applicable Law.

Section 5.8Shareholder Approvals of Pubco, Merger Sub 1 and Merger Sub 2.

(a)Concurrently with the execution of this Agreement, SilverBox, as the sole stockholder of Pubco, will approve and adopt this Agreement, the Ancillary Documents to which Pubco is or will be a party and the transactions contemplated hereby and thereby.

(b)As promptly as reasonably practicable (and in any event within one Business Day) following the date of this Agreement, Pubco, as the sole member of Merger Sub 1, will approve and adopt this Agreement, the Ancillary Documents to which Merger Sub 1 is or will be a party and the transactions contemplated hereby and thereby.

(c)As promptly as reasonably practicable (and in any event within one Business Day) following the date of this Agreement, SilverBox, as the sole member of Merger Sub 2, will approve and adopt this Agreement, the Ancillary Documents to which Merger Sub 2 is or will be a party and the transactions contemplated hereby and thereby.

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Section 5.9Conduct of Business of SilverBox. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SilverBox shall not, and shall cause the SilverBox Parties and their respective Subsidiaries not to, as applicable, except as expressly contemplated by this Agreement or any Ancillary Document (including, for the avoidance of doubt, in connection with the PIPE Financing and FPA Financing), as required by applicable Law, as set forth on Section 5.9 of the SilverBox Disclosure Schedules or as consented to in writing by the Company (it being agreed that any request for consent shall not be unreasonably withheld, conditioned or delayed), do any of the following:

(a)create or form any Subsidiary (other than as otherwise set forth in this Agreement and in the Ancillary Documents);

(b)adopt any amendments, supplements, restatements or modifications to the Trust Agreement, the Warrant Agreement or the Governing Documents of SilverBox or any of its Subsidiaries;

(c)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;

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

(e)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;

(f)incur, create or assume any Indebtedness or other Liability, other than (i) SilverBox Expenses, (ii) SilverBox Working Capital Loans in an aggregate amount not to exceed $1,000,000 or (iii) Indebtedness for borrowed money or guarantees incurred in the ordinary course of business and in an aggregate amount not to exceed $200,000;

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

(h)issue any Equity Securities of SilverBox or any of its Subsidiaries or grant any additional options, warrants or stock appreciation rights with respect to Equity Securities of the foregoing of SilverBox or any of its Subsidiaries;

(i)enter into, renew, modify or revise any SilverBox Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a SilverBox Related Party Transaction);

(j)engage in any activities or business, other than activities or business (i) in connection with or incident or related to such Person’s organization, incorporation or formation, as applicable, or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, this Agreement, any Ancillary Document, the performance of covenants or agreements hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature;

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

(l)waive, release, assign, settle or compromise any action pending or threatened against SilverBox or any of its directors or officers that would materially and adversely affect SilverBox after the Closing Date;

(m)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 Ancillary Documents);

(n)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;

(o)(A) make, change or revoke any material election relating to Taxes or adopt or change any material Tax accounting method, (B) enter into any agreement, settlement or compromise with any Tax Authority relating to any material Tax matter, (C) file any material amended Tax Return, (D) surrender any right to claim any refund of a material amount of Taxes, (E) defer payment of any material amount of Taxes pursuant to the CARES Act, or (F) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of a material amount of Taxes;

(p)knowingly take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Intended Tax Treatment; or

(q)enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.9.

Notwithstanding anything in this Section 5.9 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SilverBox and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, SilverBox from using the funds held by SilverBox outside the Trust Account to pay or reimburse any SilverBox Expenses or SilverBox Liabilities or from otherwise distributing or paying over any funds held by SilverBox outside the Trust Account to the Sponsor or any of its Affiliates, in each case, prior to the Closing.

Section 5.10Listing. SilverBox shall use its reasonable best efforts to cause: (a) Pubco’s initial listing application with Nasdaq in connection with the transactions contemplated by this Agreement to have been approved: (b) Pubco to satisfy all applicable initial and continuing listing requirements of Nasdaq; and (c) the shares of Pubco Common Stock and the Pubco Warrants issuable in accordance with this Agreement to be approved for listing on Nasdaq (and the Company shall reasonably cooperate in connection therewith), subject to official notice of issuance, in each case, as promptly as reasonably practicable after the date of this Agreement, and in any event prior to the Effective Time. Notwithstanding the foregoing, if mutually agreed by SilverBox and the Company, the Company, on behalf of SilverBox, shall prepare and submit to the New York Stock Exchange (“NYSE”) a listing application, in accordance with NYSE rules, covering the shares of Pubco Common Stock and Pubco Warrants issuable in accordance with this Agreement, and shall obtain approval for the listing thereof on the NYSE from and after the Effective Time, and the Company shall reasonably cooperate with SilverBox with respect to such listing.

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Section 5.11Trust Account.

(a)Upon satisfaction or, to the extent permitted by applicable Law, waiver of the conditions set forth in Article 7 and provision of notice thereof to the Trustee, (i) at the Closing, SilverBox shall (A) cause the documents, certificates and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered, and (B) make all appropriate arrangements to cause the Trustee to (1) pay as and when due all amounts, if any, payable to the Public Shareholders of SilverBox pursuant to the SilverBox Shareholder Redemption, (2) pay the amounts due to the underwriters of SilverBox’s initial public offering for their deferred underwriting commissions as set forth in the Trust Agreement and (3) immediately thereafter, pay all remaining amounts then available in the Trust Account to SilverBox, or the accounts designated by SilverBox, in accordance with the Trust Agreement, and (ii) thereafter, the Trust Account shall terminate, except as otherwise provided therein.

(b)In connection with the closing condition with respect to the aggregate cash proceeds available for release to SilverBox from the Trust Account under Section 7.3(d), the Sponsor and the Company shall each use reasonable best efforts to ensure that at least 10,000,000 shares of Pubco Common Stock will be “publicly held” shares (within the meaning of applicable listing rules).

Section 5.12Party Consents and Approvals.

(a)As promptly as reasonably practicable (and in any event within two Business Days) following the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act (the “Blocker Corp Shareholder Written Consent Deadline”), Blocker Corp shall obtain and deliver to SilverBox a true and correct copy of a written consent (in form and substance reasonably satisfactory to SilverBox) approving this Agreement, the Ancillary Documents to which Blocker Corp is or will be a party and the transactions contemplated hereby and thereby that is duly executed by the Blocker Corp Shareholders that hold at least the requisite number of issued and outstanding shares of common stock of Blocker Corp required to, or that otherwise have the right to, approve and adopt such matters in accordance with the DGCL and Blocker Corp’s Governing Documents (the “Blocker Corp Shareholder Written Consent”).

(b)As promptly as reasonably practicable (and in any event within two Business Days) following the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act (the “Company Unitholder Written Consent Deadline”), the Company shall obtain and deliver to SilverBox a true and correct copy of a written consent (in form and substance reasonably satisfactory to SilverBox) approving this Agreement, the Ancillary Documents to which the Company is or will be a party and the transactions contemplated hereby and thereby that is duly executed by the Existing Company Unitholders that hold at least the requisite number of issued and outstanding Existing Company Units required to, or that otherwise have the right to, approve and adopt such matters in accordance with the DLLCA and the Company’s Governing Documents (the “Company Unitholder Written Consent”).

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(c)SilverBox may not modify or waive any provisions of a Subscription Agreement, the Forward Purchase Agreement or the Sponsor Letter Agreement without the prior written consent of the Company; provided that, any modification or waiver that is solely ministerial in nature or otherwise immaterial and does not affect any economic or any other material term of a Subscription Agreement or the Forward Purchase Agreement shall not require the prior written consent of the Company.

(d)At Closing, Pubco, the Agent (as defined in the Tax Receivable Agreement) and the Company shall finalize and execute the Tax Receivable Agreement.

Section 5.13SilverBox Indemnification; Directors’ and Officers’ Insurance.

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

(b)Pubco shall not have any obligation under this Section 5.13 to any SilverBox 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 SilverBox D&O Person in the manner contemplated hereby is prohibited by applicable Law.

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(c)For a period of six years after the Effective Time, Pubco shall maintain, without any lapses in coverage, directors’ and officers’ liability insurance for the benefit of those Persons who are currently covered by any comparable insurance policies of SilverBox as of the date of this Agreement with respect to matters occurring on or prior to the Effective Time. Such insurance policies shall provide coverage on terms (with respect to coverage and amount) that are substantially the same as (and no less favorable in the aggregate to the insured than) the coverage provided under SilverBox’s directors’ and officers’ liability insurance policies as of the date of this Agreement; provided that, Pubco shall not be obligated to pay annual premiums in excess of 300% of the most recent annual premium paid by SilverBox prior to the date of this Agreement and, in such event, SilverBox shall purchase the maximum coverage available for 300% of the most recent annual premium paid by SilverBox prior to the date of this Agreement.

(d)If Pubco 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 Pubco shall assume all of the obligations set forth in this Section 5.13.

(e)The SilverBox D&O Persons entitled to the indemnification, liability limitation, exculpation and insurance set forth in this Section 5.13 are intended to be third-party beneficiaries of this Section 5.13. This Section 5.13 shall survive the consummation of the transactions contemplated by this Agreement and shall be binding on all successors and assigns of SilverBox or Pubco.

Section 5.14Company Indemnification; Directors’ and Officers’ Insurance.

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

(b)None of Pubco or the Group Companies shall have any obligation under this Section 5.14 to any Company 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 Company D&O Person in the manner contemplated hereby is prohibited by applicable Law.

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(c)The Company shall purchase, at or prior to the Closing, and Pubco shall maintain, or cause to be maintained, in effect for a period of six years after the Effective Time, without lapses in coverage, a “tail” policy providing directors’ and officers’ liability insurance coverage for the benefit of those Persons who are currently covered by any comparable insurance policies of the Group Companies as of the date of this Agreement with respect to matters occurring on or prior to the Effective Time, together with director’s and officer’s liability insurance for Pubco for the first year following the Closing (the “Company D&O Tail Policy”). Such “tail” policy shall provide coverage on terms (with respect to coverage and amount) that are substantially the same as (and no less favorable in the aggregate to the insured than) the coverage provided under the Group Companies’ directors’ and officers’ liability insurance policies as of the date of this Agreement; provided that none of the Company, Pubco or any of their respective Affiliates shall pay a premium for such “tail” policy in excess of 300% of the most recent annual premium paid by the Group Companies prior to the date of this Agreement and, in such event, the Company, Pubco or one of their respective Affiliates shall purchase the maximum coverage available for 300% of the most recent annual premium paid by the Group Companies prior to the date of this Agreement. The cost of the Company D&O Tail Policy shall be a Company Expense.

(d)If Pubco 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 SilverBox shall assume all of the obligations set forth in this Section 5.14.

(e)The Company D&O Persons entitled to the indemnification, liability limitation, exculpation and insurance set forth in this Section 5.14 are intended to be third-party beneficiaries of this Section 5.14. This Section 5.14 shall survive the consummation of the transactions contemplated by this Agreement and shall be binding on all successors and assigns of Pubco.

Section 5.15Post-Closing Directors and Officers.

(a)SilverBox shall take all such action within its power as may be necessary or appropriate such that effective immediately after the Effective Time (i) the board of directors of Pubco (the “Pubco Board”) shall initially consist of seven directors, which shall be divided into three classes, designated Class I, II and III, with Class I consisting of two directors with an initial term that expires in 2023, Class II consisting of two directors with an initial term that expires in 2024, and Class III consisting of three directors with an initial term that expires in 2025; (ii) the members of the Pubco Board will be the individuals determined in accordance with Section 5.15(b); and (iii) the officers of Pubco (the “Officers”) are the individuals determined in accordance with Section 5.15(c).

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(b)The directors on the Pubco Board immediately after the Effective Time (each, a “Director”) shall consist of (i) Evan Hafer, (ii) two individuals to be identified by Mr. Hafer (subject to the reasonable approval of SilverBox and the Company), both of whom shall be an “independent director” (as defined under applicable listing rules and regulations), (iii) two individuals to be identified by SilverBox prior to the effectiveness of the Registration Statement / Proxy Statement, one of whom is intended to be Glenn Welling, and at least one of whom shall be an “independent director” (as defined under applicable listing rules and regulations), and (iv) four individuals to be identified by the Company. In the event that Mr. Hafer is unwilling or unable (whether due to disability, termination of service or otherwise) to serve as a Director, then, prior to the mailing of the Registration Statement / Proxy Statement to the Pre-Closing SilverBox Holders, Mr. Hafer may (subject to the reasonable approval of SilverBox and the Company) replace himself with another individual, which shall be an “independent director” (as defined under applicable listing rules and regulations), to serve as such Director. Prior to the mailing of the Registration Statement / Proxy Statement to the Pre-Closing SilverBox Holders, the Company shall designate whether each individual who will serve on the Pubco Board immediately after the Effective Time will be designated as a member of Class I, Class II or Class III; provided that Glenn Welling shall be designated as a member of Class III.

(c)The Officers immediately after the Effective Time shall be the individuals identified on Section 5.15(c) of the Company Disclosure Schedules, with each such individual holding the title set forth opposite his or her name.

Section 5.16PCAOB Financials and Additional Information.

(a)As promptly as reasonably practicable after the date of this Agreement (but no later than five (5) Business Days following the date of this Agreement), the Company shall deliver to SilverBox the Required Company Financial Statements. As promptly as reasonably practicable after the date of this Agreement (but no later than November 15, 2021), the Company shall deliver to SilverBox the Company Unaudited Financial Statements. If the Registration Statement / Proxy Statement has not been declared effective by the SEC prior to February 15, 2022, as soon as reasonably practicable thereafter (but no later than March 30, 2022), the Company shall deliver to SilverBox (i) the audited consolidated financial statements of income and comprehensive income, consolidated statement of member’s equity (deficit) and consolidated statement of cash flows of the Group Companies as of and for the year ended December 31, 2021, together with the notes and schedules to the foregoing, which comply with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Additional Audited Financial Statements”), (ii) any other audited or unaudited consolidated balance sheets and the related audited or unaudited consolidated statements of operations and comprehensive loss, members’ equity (deficit) and cash flows of the Group Companies as of and for a year-to-date period ended as of the end of any other different fiscal quarter (and as of and for the same period from the previous fiscal year) or fiscal year (and as of and for the prior fiscal quarter), as applicable, that is required under the applicable rules and regulations and guidance of the SEC to be included in the Registration Statement / Proxy Statement (including pro forma financial information); (iii) all selected financial data of the Group Companies required by Item 301 of Regulation S-K of the Exchange Act, as necessary for inclusion in the Registration Statement / Proxy Statement; (iv) management’s discussion and analysis of financial condition and results of operations prepared in accordance with Item 303 of Regulation S-K of the Exchange Act (as if the Group Companies were subject thereto) with respect to the periods described in clauses (i) and (ii) above, as necessary for inclusion in the Registration Statement / Prospectus (including pro forma financial information); (v) the consent of the Group Companies’ auditors required for inclusion in the Registration Statement / Proxy Statement; and (vi) all other information (financial or otherwise) of the Group Companies required to be included in the Registration Statement / Proxy Statement as of and for the year ended December 31, 2021 (including disclosures required by Items 401, 402 and 404 of Regulation S-k of the Exchange Act). Upon delivery of the Additional Audited Financial Statements, the representations and warranties set forth in Section 3.4 shall be deemed to apply in the same manner as the Required Company Financial Statements.

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(b)The Company 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 member of such Group Company, SilverBox and Pubco 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 SilverBox and Pubco with the SEC in connection with the transactions contemplated by this Agreement or any Ancillary Document and (ii) to obtain the consents of its auditors with respect thereto as may be required by applicable Law or requested by the SEC.

Section 5.17Founder Equity Incentive Plan; Pubco Equity Incentive Plan.

(a)Prior to the effectiveness of the Registration Statement / Proxy Statement, the Pubco Board shall approve and, subject to obtaining the approval of the holders of the requisite number of SilverBox Shares, adopt an equity incentive plan, in form and substance, with any changes or modifications thereto, as the Company and SilverBox may mutually agree acting in good faith (such agreement not to be unreasonably withheld, conditioned or delayed by any of the Company or SilverBox, as applicable) (the “Founder Equity Incentive Plan”), in the manner prescribed under applicable Laws, effective as of one day prior to the Closing Date.

(b)Prior to the effectiveness of the Registration Statement / Proxy Statement, the Pubco Board shall approve and, subject to obtaining the approval of the holders of the requisite number of SilverBox Shares, adopt an equity incentive plan, in form and substance, with any changes or modifications thereto, as the Company and SilverBox may mutually agree acting in good faith (such agreement not to be unreasonably withheld, conditioned or delayed by any of the Company or SilverBox, as applicable) (the “Pubco Equity Incentive Plan”), in the manner prescribed under applicable Laws, effective as of one day prior to the Closing Date. In furtherance of the foregoing, the Pubco Equity Incentive Plan shall provide for a pool of 10% to 12% of fully diluted shares of Pubco Common Stock measured as of immediately after Closing, inclusive of (i) any shares of Pubco Common Stock eligible for grant under the Founder Equity Incentive Plan and (ii) all of the unvested Existing Company Incentive Units (or any newly issued incentive units of the Company issued at Closing in replacement thereof).

(c)For the avoidance of doubt, the failure of the Company and SilverBox to mutually agree on the form and terms of the Founder Equity Incentive Plan or Pubco Equity Incentive Plan, shall not be deemed a failure of any Party to comply with any covenant or agreement under this Agreement (other than any failure to act in good faith in accordance with Section 5.17(a) and Section 5.17(b)), or afford any Party a basis upon which to not consummate the transactions contemplated by this Agreement to the extent that all other conditions to Closing set forth in Article 7 are otherwise satisfied or waived.

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Section 5.18Blocker Activities.

(a)From and after the date of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, Blocker Corp shall not, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law or as mutually consented to by the Company and SilverBox in writing (which consent shall not be unreasonably conditioned, withheld or delayed), take any action or engage in any activities that could cause any representation or warranty of or applicable to Blocker Corp set forth in Article 3 to be untrue in any material respect or take any action or engage in any of the activities described in Section 3.28 or modify its Governing Documents.

(b)As soon as reasonably practicable and not more than five Business Days after the Closing, the Parties shall cause Blocker Corp to be merged with and into Merger Sub 1, its corporate parent after giving effect to the Business Combination, with Merger Sub 1 continuing as the surviving entity in such merger.

Section 5.19Treatment of Existing Indebtedness.

(a)Prior to the Closing, the Company shall deliver (by the applicable date required under the terms of the applicable documentation governing the Indebtedness of the Group Companies set forth on Section 5.19(a) of the Company Disclosures Schedules (collectively, the “Closing Date Indebtedness”) that shall be paid off as of Closing and otherwise in compliance with any other applicable requirements) any notices necessary to permit the prepayment, payoff, discharge and termination in full at the Closing of the Closing Date Indebtedness.

(b)At least three Business Days prior to or at the Closing, the Company shall deliver, or cause to be delivered, to SilverBox duly executed payoff letters dated as of the Closing Date (collectively, the “Payoff Letters”; drafts of which shall be provided to SilverBox no less than five Business Days prior to the anticipated Closing Date), from the holders (or an agent (or similar Person) on behalf of all such holders) of the Closing Date Indebtedness. Each of the Payoff Letters shall (i) be in form and substance reasonably satisfactory to SilverBox, (ii) confirm the aggregate outstanding amount (such amount under all Payoff Letters, collectively, the “Payoff Amount”) required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties, breakage costs and any other outstanding and unpaid amounts under the applicable Closing Date Indebtedness as of the anticipated Closing Date, (iii) contain payment instructions for the applicable portion of the Payoff Amount (and the daily accrual of interest thereafter) and (iv) customarily evidence the satisfaction, irrevocable release and discharge of the Closing Date Indebtedness (including guarantees), and the agreement by such holders (or an agent (or similar Person) on behalf of all such holders) to release all Liens upon the payment of the applicable portion of the Payoff Amount in accordance with the relevant payment instructions, together with such other customary documents (including an authorization to file Uniform Commercial Code termination statements) and releases (in recordable form, if applicable) as are reasonably necessary to release all Liens (including mortgages) created in connection with the Closing Date Indebtedness.

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Section 5.20Amendment and Restatement of Pubco Charter and Bylaws. Prior to the effectiveness of the Registration Statement / Proxy Statement, SilverBox, as the sole stockholder of Pubco, and the Pubco Board shall approve and adopt (a) the Amended and Restated Certificate of Incorporation of Pubco, substantially in the form attached hereto as Exhibit F, pursuant to which Pubco shall become a Delaware public benefit corporation (the “Amended and Restated Pubco Charter”) and (b) the Pubco Amended and Restated Bylaws of Pubco, substantially in the form attached hereto as Exhibit G (the “Amended and Restated Pubco Bylaws”).

Article 6
TAX MATTERS

Section 6.1Certain Tax Matters.

(a)Each Party shall reasonably cooperate (and cause its Affiliates to reasonably cooperate), as and to the extent reasonably requested by each other Party (and at the expense of the requesting Party), in connection with any Tax Return or any Proceeding with respect to Taxes or Tax Returns with respect to the transactions contemplated by this Agreement or otherwise with respect to any of the Parties for Pre-Closing Tax Periods. Such cooperation shall include the retention and provision of records and information which are reasonably relevant to any such Tax Return or Proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided under this Section 6.1(a). For the avoidance of doubt, this Section 6.1(a) shall not apply to any dispute or threatened dispute among the Parties.

(b)Intended Tax Treatment.

(i)The Parties intend that, for U.S. federal income Tax purposes, the Pubco Merger constitute a transaction that qualifies as a “reorganization” within the meaning of Section 368(a)(1)(F) of the Code, and each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to cause the Pubco Merger to so qualify (which shall include using reasonable best efforts to take, or not take, any action which may reasonably be expected to prevent such qualification) and shall file all Tax Returns consistent with, and take no position inconsistent with (whether in Proceedings, Tax Returns or otherwise), such treatment unless required to do so pursuant to a “determination” that is final within the meaning of Section 1313(a) of the Code. Each of the Parties agrees to promptly notify all other Parties of any challenge to the Intended Tax Treatment by any Governmental Entity.

(ii)The Parties hereby adopt this Agreement as a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a).

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(iii)If, in connection with the preparation and filing of the Registration Statement / Proxy Statement, the SEC requests or requires that any tax opinion be prepared and submitted in such connection, then (i) the Parties shall cooperate in order to facilitate the issuance of such tax opinion, (ii) the Parties shall deliver to Kirkland & Ellis LLP (or other legal counsel to the Company) and/or Paul Hastings LLP (or other legal counsel to SilverBox), in each case, to the extent reasonably requested by such counsel, duly executed certificates, dated as of the date reasonably requested by such counsel, containing such customary representations and warranties as shall be reasonably necessary or appropriate to enable such counsel to render any such opinion, (iii) Kirkland & Ellis LLP or other legal counsel to the Company (and for the avoidance of doubt, not Paul Hastings LLP or other legal counsel to SilverBox) shall issue any such opinion, subject to customary assumptions and limitations, relating to the Tax consequences of the transactions contemplated by this Agreement to Blocker Corp, Blocker Corp Shareholders, and/or the Existing Company Unitholders, and (iv) Paul Hastings LLP or other legal counsel to SilverBox (and for the avoidance of doubt, not Kirkland & Ellis LLP or other legal counsel to the Company) shall issue any such opinion, subject to customary assumptions and limitations, relating to the Tax consequences of the transactions contemplated by this Agreement to any of the SilverBox Parties or any of their respective shareholders or equityholders (including the Intended Tax Treatment).

(c)Transfer Taxes. All transfer, documentary, sales, use, real property transfer, stamp, registration and other similar Taxes, fees and costs (including any associated penalties and interest) (“Transfer Taxes”) incurred by any of the Parties or their respective Subsidiaries in connection with the execution of this Agreement or the transactions contemplated hereby shall be borne and paid by Pubco following the Effective Time. The party required by applicable Law to file a Tax Return with respect to such Transfer Taxes and to pay such Transfer Taxes shall do so within the time periods prescribed by Law. The Parties shall reasonably cooperate regarding the filing of any Tax Returns with respect to Transfer Taxes.

Article 7
CONDITIONS TO CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT

Section 7.1Conditions to the Obligations of the Parties. The obligations of the Parties to consummate the transactions contemplated by this Agreement are subject to the satisfaction or, if permitted by applicable Law, waiver by the Party for whose benefit such condition exists of the following conditions:

(a)the applicable waiting period under the HSR Act relating to the transactions contemplated by this Agreement shall have expired or been terminated;

(b)no Order or Law issued by any court of competent jurisdiction or other Governmental Entity or other legal restraint or prohibition preventing the consummation of the transactions contemplated by this Agreement shall be in effect;

(c)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;

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(d)the Blocker Corp Shareholder Written Consent shall have been obtained;

(e)the Company Unitholder Written Consent shall have been obtained;

(f)the Required SilverBox Shareholder Approval shall have been obtained;

(g)after giving effect to the transactions contemplated hereby, SilverBox 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 Effective Time;

(h)Pubco’s initial listing application with Nasdaq or NYSE, as applicable, in connection with the transactions contemplated by this Agreement shall have been approved and, immediately following the Effective Time, Pubco shall satisfy any applicable initial and continuing listing requirements of Nasdaq or NYSE, as applicable, and Pubco shall not have received any notice of non-compliance therewith that has not been cured or would not be cured at or immediately following the Effective Time, and the shares of Pubco Common Stock to be issued pursuant to the Pubco Merger shall have been approved for listing on Nasdaq or NYSE, as applicable;

(i)at least 5,000,000 shares of Pubco Common Stock shall be “publicly held” shares (within the meaning of applicable listing rules);

(j)the Pubco Board shall consist of the number of directors, and be comprised of the individuals and classes, determined pursuant to Section 5.15(a) and Section 5.15(b); and

(k)the Amended and Restated Pubco Charter shall have been duly filed with the Secretary of State of the State of Delaware, and the Amended and Restated Pubco Bylaws shall have been duly adopted.

Section 7.2Other Conditions to the Obligations of SilverBox Parties. The obligations of the SilverBox Parties to consummate the transactions contemplated by this Agreement are subject to the satisfaction or, if permitted by applicable Law, waiver by SilverBox of the following further conditions:

(a)(i) the Company Fundamental Representations (other than the representations and warranties set forth in Section 3.8(a)) shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth herein) in all material respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), (ii) the representations and warranties set forth in Section 3.8(a) shall be true and correct in all respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is 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 Company Material Adverse Effect is continuing, (iii) the representations and warranties of the Company set forth in Article 3 (other than the Company Fundamental Representations) shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth herein) in all respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), except where the failure of such representations and warranties to be true and correct, taken as a whole, does not cause a Company Material Adverse Effect and (iv) the representations and warranties of Blocker Corp set forth in Article 3 shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth herein) in all material respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date);

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(b)each of the Company and Blocker Corp shall have performed and complied in all material respects with the covenants and agreements required to be performed or complied with by the Company or Blocker Corp, as applicable, under this Agreement at or prior to the Closing;

(c)since the date of this Agreement, no Company Material Adverse Effect shall have occurred that is continuing;

(d)at or prior to the Closing, Blocker Corp shall have delivered, or caused to be delivered, to SilverBox a certificate duly executed by an authorized officer of Blocker Corp, dated as of the Closing Date, to the effect that the conditions specified in Section 7.2(a), Section 7.2(b) (solely to the extent such conditions relate to Blocker Corp) are satisfied, in a form and substance reasonably satisfactory to SilverBox;

(e)at or prior to the Closing, the Company shall have delivered, or caused to be delivered, to SilverBox the following documents:

(i)a certificate duly executed by an authorized officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in Section 7.2(a), Section 7.2(b) and Section 7.2(c) (solely to the extent such conditions relate to the Company or any other Group Company) are satisfied, in a form and substance reasonably satisfactory to SilverBox;

(ii)the Tax Receivable Agreement duly executed by the Agent (as defined in the Tax Receivable Agreement) and the Company; and

(iii)the Investor Rights Agreement duly executed by the Existing Company Unitholders and the Company.

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Section 7.3Other Conditions to the Obligations of the Company and Blocker Corp. The obligations of the Company and Blocker Corp to consummate the transactions contemplated by this Agreement are subject to the satisfaction or, if permitted by applicable Law, waiver by the Company of the following further conditions:

(a)(i) the SilverBox Fundamental Representations shall be true and correct in all material respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), and (ii) the representations and warranties of SilverBox (other than the SilverBox Fundamental Representations) contained in Article 4 of this Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “SilverBox Material Adverse Effect” or any similar limitation set forth herein) in all respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure of such representations and warranties to be true and correct, taken as a whole, does not cause a SilverBox Material Adverse Effect;

(b)SilverBox shall have performed and complied in all material respects with the covenants and agreements required to be performed or complied with by them under this Agreement at or prior to the Closing;

(c)the aggregate cash proceeds available for release to SilverBox from the Trust Account in connection with the transactions contemplated hereby (after, for the avoidance of doubt, giving effect to all of the SilverBox Shareholder Redemptions), plus the gross proceeds of the PIPE Financing and the FPA Financing shall be equal to or greater than $300,000,000, before deductions for transaction expenses and other uses as contemplated by this Agreement;

(d)at or prior to the Closing, SilverBox shall have delivered, or caused to be delivered, the following documents to the Company:

(i)a certificate duly executed by an authorized officer of SilverBox, dated as of the Closing Date, to the effect that the conditions specified in Section 7.3(a) and Section 7.3(b) are satisfied, in a form and substance reasonably satisfactory to the Company;

(ii)the Warrant Assumption Agreement duly executed by Pubco;

(iii)the Tax Receivables Agreement duly executed by Pubco; and

(iv)the Investor Rights Agreement duly executed by Pubco, the Sponsor and Engaged Capital.

Section 7.4Frustration of Closing Conditions. Neither the Company nor Blocker Corp may rely on the failure of any condition set forth in this Article 7 to be satisfied if such failure was proximately caused by the Company’s or Blocker Corp’s failure to use reasonable best efforts to cause the Closing to occur, as required by Section 5.2. SilverBox may not rely on the failure of any condition set forth in this Article 7 to be satisfied if such failure was proximately caused by SilverBox’s failure to use reasonable best efforts to cause the Closing to occur, as required by Section 5.2.

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Article 8

TERMINATION

Section 8.1Termination. This Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Closing:

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

(b)by SilverBox, if any of the representations or warranties set forth in Article 3 shall not be true and correct or if the Company or Blocker Corp has failed to perform any covenant or agreement on the part of the Company or Blocker Corp, as applicable, set forth in this Agreement (including an obligation to consummate the Closing) such that the condition to Closing set forth in either Section 7.2(a) or Section 7.2(b) could not be satisfied and the breach or breaches causing such representations or warranties not to be true and correct, or the failures to perform any covenant or agreement, as applicable, is (or are) not cured or cannot be cured within the earlier of (i) 30 days after written notice thereof is delivered to the Company by SilverBox, and (ii) the Termination Date; provided, however, that no SilverBox Party is then in breach of this Agreement so as to prevent the condition to Closing set forth in either Section 7.3(a) or Section 7.3(b) from being satisfied;

(c)by the Company, if any of the representations or warranties set forth in Article 4 shall not be true and correct or if any SilverBox Party has failed to perform any covenant or agreement on the part of such SilverBox Party, as applicable, set forth in this Agreement (including an obligation to consummate the Closing) such that the condition to Closing set forth in either Section 7.3(a) or Section 7.3(b) could not be satisfied and the breach or breaches causing such representations or warranties not to be true and correct, or the failures to perform any covenant or agreement, as applicable, is (or are) not cured or cannot be cured within the earlier of (i) 30 days after written notice thereof is delivered to SilverBox by the Company and (ii) the Termination Date; provided, however, neither the Company nor Blocker Corp is then in breach of this Agreement so as to prevent the condition to Closing set forth in Section 7.2(a) or Section 7.2(b) from being satisfied;

(d)by either SilverBox or the Company, if the transactions contemplated by this Agreement shall not have been consummated on or prior to June 2, 2022 (the “Termination Date”); provided however that, (i) the right to terminate this Agreement pursuant to this Section 8.1(d) shall not be available to SilverBox if any SilverBox Party’s breach of any of its covenants or obligations under this Agreement shall have proximately caused the failure to consummate the transactions contemplated by this Agreement on or before the Termination Date, and (ii) the right to terminate this Agreement pursuant to this Section 8.1(d) shall not be available to the Company if the Company’s or Blocker Corp’s breach of its covenants or obligations under this Agreement shall have proximately caused the failure to consummate the transactions contemplated by this Agreement on or before the Termination Date;

(e)by either SilverBox or the Company, if any Governmental Entity 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;

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

(g)by SilverBox, if the Company does not deliver, or cause to be delivered to SilverBox (i) the Blocker Corp Shareholder Written Consent in accordance with Section 5.12(a) on or prior to the Blocker Corp Shareholder Written Consent Deadline or (ii) the Company Unitholder Written Consent in accordance with Section 5.12(b) on or prior to the Company Unitholder Written Consent Deadline.

Section 8.2Effect of Termination. In the event of the termination of this Agreement pursuant to Section 8.1, this entire Agreement shall forthwith become void (and there shall be no Liability or obligation on the part of the Parties and their respective Non-Party Affiliates) with the exception of (a) Section 5.3(a), this Section 8.2, Article 9 and Article 1 (to the extent related to the foregoing), each of which shall survive such termination and remain valid and binding obligations of the Parties and (b) the Confidentiality Agreement, which shall survive such termination and remain valid and binding obligations of the parties thereto in accordance with their respective terms. Notwithstanding the foregoing or anything to the contrary herein, the termination of this Agreement pursuant to Section 8.1 shall not affect any Liability on the part of any Party for any Willful Breach of any covenant or agreement set forth in this Agreement prior to such termination or Fraud.

Article 9
MISCELLANEOUS

Section 9.1Non-Survival. Other than those representations, warranties and covenants set forth in Section 2.1, Section 2.5, Section 3.27, Section 3.29, Section 4.19 and Section 4.20, each of which shall survive following the Effective Time, or as otherwise provided in the last sentence of this Section 9.1, and except in the case of any claim, action or liability against a party in respect of such party’s Fraud, each of the representations and warranties, and each of the agreements and covenants (to the extent such agreement or covenant contemplates or requires performance at or prior to the Effective Time) of the Parties set forth in this Agreement shall terminate at the Effective Time, such that no claim for breach of any such representation, warranty, agreement or covenant, detrimental reliance or other right or remedy (whether in contract, in tort, at law, in equity or otherwise) may be brought with respect thereto after the Effective Time against any Party, any Company Non-Party Affiliate or any SilverBox Non-Party Affiliate. Each covenant and agreement contained herein that, by its terms, expressly contemplates performance after the Effective Time shall so survive the Effective Time in accordance with its terms, and each covenant and agreement contained in any Ancillary Document that, by its terms, expressly contemplates performance after the Effective Time shall so survive the Effective Time in accordance with its terms and any other provision in any Ancillary Document that expressly survives the Effective Time shall so survive the Effective Time in accordance with the terms of such Ancillary Document.

Section 9.2Entire Agreement; Assignment. This Agreement (together with the Ancillary Documents) constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof. This Agreement may not be assigned by any Party (whether by operation of law or otherwise) without the prior written consent of the Parties. Any attempted assignment of this Agreement not in accordance with the terms of this Section 9.2 shall be void.

Section 9.3Amendment. This Agreement may be amended or modified only by a written agreement executed and delivered by the Parties. This Agreement may not be modified or amended except as provided in the immediately preceding sentence and any purported amendment by any Party or Parties effected in a manner which does not comply with this Section 9.3 shall be void, ab initio; provided that, neither the Company nor Blocker Corp shall agree to any amendment, modification or waiver of any provision of this Agreement that would reasonably be expected to materially and adversely affect the benefits that the Company would reasonably expect to receive under this Agreement and the other transactions contemplated hereby without having received the prior written consent of the Company (it being understood that (a) any amendment or modification to the definition of Company Expenses or Unpaid Company Expenses or (b) any amendment or modification to the provisions hereof to which the Company is a third-party beneficiary pursuant to Section 9.9 shall be deemed to have such a material and adverse effect).

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Section 9.4Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given) by delivery in person, by e-mail (having obtained electronic delivery confirmation thereof (i.e., an electronic record of the sender that the e-mail was sent to the intended recipient thereof without an “error” or similar message that such e-mail was not received by such intended recipient)), or by registered or certified mail (postage prepaid, return receipt requested) (upon receipt thereof) to the other Parties as follows:

(a)If to SilverBox, to:

SilverBox Engaged Merger Corp I

1250 S. Capital of Texas Highway

Building 2, Suite 285

Austin, TX 78746

Attention: Joseph Reece
Stephen Kadenacy

E-mail: jr@sbcap.com
sk@sbcap.com

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

Paul Hastings LLP

1999 Avenue of the Stars, 27th Floor

Los Angeles, CA 90067

Attention: David M. Hernand

Jonathan Ko

E-mail: davidhernand@paulhastings.com

jonathanko@paulhastings.com

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(b) If to the Company or Blocker Corp, to:

Authentic Brands, LLC

1144 S 500 W

Salt Lake City, UT 84101

Attn: Tom Davin, Co-CEO

Email: tom.davin@blackriflecoffee.com

Grand Opal Investment Holdings, Inc.

c/o Torreal SCR, S.A.

Calle Fortuny, 1

28010 Madrid, Spain

Attention: Almudena de Egaña

E-mail: aeh@torreal.com

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

Kirkland & Ellis LLP

300 North LaSalle

Chicago, IL 60654

Attention: Steven V. Napolitano, P.C.
John A. Kaercher, P.C.
Joshua N. Korff, P.C.
Peter S. Seligson

E-mail: stephen.napolitano@kirkland.com
john.kaercher@kirkland.com
joshua.korff@kirkland.com
peter.seligson@kirkland.com

or to such other address as the Party to whom notice is given may have previously furnished to the others in writing in the manner set forth above.

Section 9.5Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the State of Delaware.

Section 9.6Fees and Expenses. Except as otherwise set forth in this Agreement, all fees and expenses incurred in connection with this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby, including the fees and disbursements of counsel, financial advisors and accountants, shall be paid by the Party incurring such fees or expenses; provided that, for the avoidance of doubt, (a) if this Agreement is terminated in accordance with its terms, the Company shall pay, or cause to be paid, all Unpaid Company Expenses and SilverBox shall pay, or cause to be paid, all SilverBox Expenses and (b) if the Closing occurs, then the Company shall pay or reimburse, or cause to be paid or reimbursed, all Unpaid Company Expenses and all SilverBox Expenses (including paying off any SilverBox Working Capital Loans in an aggregate amount not to exceed $1,000,000).

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Section 9.7Construction; Interpretation. The term “this Agreement” means this Business Combination Agreement together with the Schedules and Exhibits hereto, as the same may from time to time be amended, modified, supplemented or restated in accordance with the terms hereof. The headings set forth in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. No Party, nor its respective counsel, shall be deemed the drafter of this Agreement for purposes of construing the provisions hereof, and all provisions of this Agreement shall be construed according to their fair meaning and not strictly for or against any Party. Unless otherwise indicated to the contrary herein by the context or use thereof: (a) the words, “herein,” “hereto,” “hereof” and words of similar import refer to this Agreement as a whole, including the Schedules and Exhibits, and not to any particular section, subsection, paragraph, subparagraph or clause set forth in this Agreement; (b) masculine gender shall also include the feminine and neutral genders, and vice versa; (c) words importing the singular shall also include the plural, and vice versa; (d) the words “include,” “includes” or “including” shall be deemed to be followed by the words “without limitation”; (e) references to “$” or “dollar” or “US$” shall be references to United States dollars; (f) the word “or” is disjunctive but not necessarily exclusive; (g) the words “writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form; (h) the word “day” means calendar day unless Business Day is expressly specified; (i) the word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”; (j) all references to Articles, Sections, Exhibits or Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement; (k) the words “provided” or “made available” or words of similar import (regardless of whether capitalized or not) shall mean, when used with reference to documents or other materials required to be provided or made available to SilverBox, any documents or other materials posted to the electronic data room located at Donnelley Financial Solutions Venue under the project name “Project Operator” or otherwise provided to or made available to SilverBox or its Representatives as of 5:00 p.m., Eastern Time, at least one day prior to the date of this Agreement; (l) all references to any Law will be to such Law as amended, supplemented or otherwise modified or re-enacted from time to time; (m) all references to any Contract are to that Contract as amended or modified from time to time in accordance with the terms thereof (subject to any restrictions on amendments or modifications set forth in this Agreement); and (n) all references to SilverBox in relation to any time following the Pubco Merger shall be deemed to be referenced to Pubco. If any action under this Agreement is required to be done or taken on a day that is not a Business Day, then such action shall be required to be done or taken not on such day but on the first succeeding Business Day thereafter.

Section 9.8Exhibits and Schedules. All Exhibits and Schedules, or documents expressly incorporated into this Agreement, are hereby incorporated into this Agreement and are hereby made a part hereof as if set out in full in this Agreement. The Schedules shall be arranged in sections and subsections corresponding to the numbered and lettered Sections and subsections set forth in this Agreement. Any item disclosed in the Company Disclosure Schedules or in the SilverBox Disclosure Schedules corresponding to any Section or subsection of Article 3 (in the case of the Company Disclosure Schedules) or Article 4 (in the case of the SilverBox Disclosure Schedules) shall be deemed to have been disclosed with respect to every other section and subsection of Article 3 (in the case of the Company Disclosure Schedules) or Article 4 (in the case of the SilverBox Disclosure Schedules), as applicable, where the relevance of such disclosure to such other Section or subsection is reasonably apparent on the face of the disclosure. The information and disclosures set forth in the Schedules that correspond to the section or subsections of Article 3 or Article 4 may not be limited to matters required to be disclosed in the Schedules, and any such additional information or disclosure is for informational purposes only and does not necessarily include other matters of a similar nature.

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Section 9.9Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each Party and its successors and permitted assigns and, except as provided in Section 5.13, Section 5.14 and the three subsequent sentences of this Section 9.9, nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement. The Sponsor shall be an express third-party beneficiary of Section 9.2, Section 9.3, Section 9.14 and this Section 9.9 (to the extent related to the foregoing). Evan Hafer shall be an express third-party beneficiary of his rights under Section 5.15(b) and this Section 9.9 (to the extent related to the foregoing). Each of the Non-Party Affiliates shall be an express third-party beneficiary of Section 9.13 and this Section 9.9 (to the extent related to the foregoing).

Section 9.10Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable Law, all other provisions of this Agreement shall remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision of this Agreement is invalid, illegal or unenforceable under applicable Law, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

Section 9.11Counterparts; Electronic Signatures. This Agreement and each Ancillary Document (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 Ancillary Document (including any of the closing deliverables contemplated hereby) by e-mail, or scanned pages shall be effective as delivery of a manually executed counterpart to this Agreement or any such Ancillary Document.

Section 9.12Knowledge of Company; Knowledge of SilverBox. For all purposes of this Agreement, the phrase “to the Company’s knowledge” and “known by the Company” and any derivations thereof shall mean as of the applicable date, the actual knowledge of the individuals set forth on Section 9.12(a) of the Company Disclosure Schedules, assuming reasonable inquiry and investigation of his or her direct reports. For all purposes of this Agreement, the phrase “to SilverBox’s knowledge” and “known by SilverBox” and any derivations thereof shall mean as of the applicable date, the actual knowledge of the individuals set forth on Section 9.12(b) of the SilverBox Disclosure Schedules, assuming reasonable inquiry and investigation of his or her direct reports. For the avoidance of doubt, none of the individuals set forth on Section 9.12(a) of the Company Disclosure Schedules or Section 9.12(b) of the SilverBox Disclosure Schedules shall have any personal Liability or obligations regarding such knowledge.

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Section 9.13No Recourse. Except for claims pursuant to any Ancillary Document by any party thereto against any Company Non-Party Affiliate or any SilverBox Non-Party Affiliate (each, a “Non-Party Affiliate”), and then solely with respect to claims against the Non-Party Affiliates that are party to the applicable Ancillary Document, and except in the case of Fraud, each Party agrees on behalf of itself and on behalf of the Company Non-Party Affiliates, in the case of the Company, and the SilverBox Non-Party Affiliates, in the case of SilverBox, that (a) this Agreement may only be enforced against, and any action for breach of this Agreement may only be made against, the Parties, and no claims of any nature whatsoever arising under or relating to this Agreement, the negotiation hereof or its subject matter, or the transactions contemplated hereby shall be asserted against any Non-Party Affiliate, and (b) none of the Non-Party Affiliates shall have any Liability arising out of or relating to this Agreement, the negotiation hereof or its subject matter, or the transactions contemplated hereby, including with respect to any claim (whether in tort, contract or otherwise) for breach of this Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, as expressly provided herein, or for any actual or alleged inaccuracies, misstatements or omissions with respect to any information or materials of any kind furnished by the Company, any Group Company, any SilverBox Party or any Non-Party Affiliate concerning the Company, any Group Company, any SilverBox Party, this Agreement or the transactions contemplated hereby.

Section 9.14Extension; Waiver. The Company may (a) extend the time for the performance of any of the obligations or other acts of SilverBox set forth herein, (b) waive any inaccuracies in the representations and warranties of SilverBox set forth herein or (c) waive compliance by SilverBox with any of the agreements or conditions set forth herein. SilverBox may (i) extend the time for the performance of any of the obligations or other acts of the Company or Blocker Corp set forth herein, (ii) waive any inaccuracies in the representations and warranties of the Company or Blocker Corp set forth herein or (iii) waive compliance by the Company or Blocker Corp with any of the agreements or conditions set forth herein. Any agreement on the part of any such Party to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such Party. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement. The failure of any Party to assert any of its rights hereunder shall not constitute a waiver of such rights.

Section 9.15Waiver of Jury Trial. THE PARTIES EACH HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY PROCEEDING, CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT OR UNDER ANY ANCILLARY DOCUMENT OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES IN RESPECT OF THIS AGREEMENT OR ANY ANCILLARY DOCUMENT OR ANY OF THE TRANSACTIONS RELATED HERETO OR THERETO OR ANY FINANCING IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. THE PARTIES EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH PROCEEDING, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 9.15.

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Section 9.16Submission to Jurisdiction. Each of the Parties irrevocably and unconditionally submits to the exclusive jurisdiction of the Chancery Court of the State of Delaware (or, if the Chancery Court of the State of Delaware declines to accept jurisdiction, any state or federal court within State of New York, New York County), for the purposes of any Proceeding, claim, demand, action or cause of action (a) arising under this Agreement or under any Ancillary Document or (b) in any way connected with or related or incidental to the dealings of the Parties in respect of this Agreement or any Ancillary Document or any of the transactions contemplated hereby or any of the transactions contemplated thereby, and irrevocably and unconditionally waives any objection to the laying of venue of any such Proceeding in any such court, and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Proceeding has been brought in an inconvenient forum. Each Party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Proceeding claim, demand, action or cause of action against such Party (i) arising under this Agreement or under any Ancillary Document or (ii) in any way connected with or related or incidental to the dealings of the Parties in respect of this Agreement or any Ancillary Document or any of the transactions contemplated hereby or any of the transactions contemplated thereby, (A) any claim that such Party is not personally subject to the jurisdiction of the courts as described in this Section 9.16 for any reason, (B) that such Party or such Party’s property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (C) that (x) the Proceeding, claim, demand, action or cause of action in any such court is brought against such Party in an inconvenient forum, (y) the venue of such Proceeding, claim, demand, action or cause of action against such Party is improper or (z) this Agreement, or the subject matter hereof, may not be enforced against such Party in or by such courts. Each Party agrees that service of any process, summons, notice or document by registered mail to such party’s respective address set forth in Section 9.4 shall be effective service of process for any such Proceeding, claim, demand, action or cause of action.

Section 9.17Remedies. Except as otherwise expressly provided herein, any and all remedies provided herein will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the Parties do not perform their respective obligations under the provisions of this Agreement (including failing to take such actions as are required of them hereunder to consummate the transactions contemplated by this Agreement) in accordance with their specific terms or otherwise breach such provisions. It is accordingly agreed that the Parties shall be entitled to seek an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in each case, without posting a bond or undertaking and without proof of damages and this being in addition to any other remedy to which they are entitled at law or in equity. Each of the Parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that the other parties have an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity.

Section 9.18Trust Account Waiver. Reference is made to the final prospectus of SilverBox, filed with the SEC (File No. 333-252827) on March 1, 2021 (the “Prospectus”). Each of the Company and Blocker Corp acknowledges and agrees and understands that SilverBox has established a trust account (the “Trust Account”) containing the proceeds of its initial public offering (the “IPO”) and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of SilverBox’s public shareholders (the “Public Shareholders”), and SilverBox may disburse monies from the Trust Account only in the express circumstances described in the Prospectus. For and in consideration of SilverBox entering into this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company hereby agrees on behalf of itself and its Representatives that, notwithstanding the foregoing or anything to the contrary in this Agreement, none of the Company nor any of it Representatives does now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distributions therefrom, or make any claim against the Trust Account (including any distributions therefrom), regardless of whether such claim arises as a result of, in connection with or relating in any way to, this Agreement or any proposed or actual business relationship between SilverBox or any of its Representatives, on the one hand, and, the Company or any of its Representatives, on the other hand, or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (any and all such claims are collectively referred to hereafter as the “Trust Account Released Claims”). The Company, on its own behalf and on behalf of its Representatives, hereby irrevocably waives any Trust Account Released Claims that it or any of its Representatives may have against the Trust Account (including any distributions therefrom) now or in the future as a result of, or arising out of, any negotiations, or Contracts with SilverBox or its Representatives and will not seek recourse against the Trust Account (including any distributions therefrom) for any reason whatsoever (including for an alleged breach of any agreement with SilverBox or its Affiliates); provided, however, that nothing in this Section 9.18 shall prohibit the Company from seeking specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement.

* * * * *

103

IN WITNESS WHEREOF, each of the Parties has caused this Business Combination Agreement to be duly executed on its behalf as of the day and year first above written.

SILVERBOX ENGAGED MERGER CORP I
By:	/s/ Steve Kadenacy
Name:	Steve Kadenacy
Title:	Chief Executive Officer
BRC INC.
By:	/s/ Steve Kadenacy
Name:	Steve Kadenacy
Title:	Chief Executive Officer
SBEA MERGER SUB LLC
By:	/s/ Steve Kadenacy
Name:	Steve Kadenacy
Title:	Chief Executive Officer
BRCC BLOCKER MERGER SUB LLC
By:	/s/ Steve Kadenacy
Name:	Steve Kadenacy
Title:	Chief Executive Officer

[Signature Page to Business Combination Agreement]

GRAND OPAL INVESTMENT HOLDINGS, INC.
By:	/s/ Almudena de Egana Huerta
Name:	Almudena de Egana Huerta
Title:	Authorized Signatory

[Signature Page to Business Combination Agreement]

AUTHENTIC BRANDS, LLC
By:	/s/ Tom Davin
Name:	Tom Davin
Title:	Co-Chief Executive Officer

[Signature Page to Business Combination Agreement]

EX-10.1

 

Exhibit 10.1

 

FORM OF SUBSCRIPTION AND BACKSTOP AGREEMENT

 

This SUBSCRIPTION AND BACKSTOP AGREEMENT (this “Subscription Agreement”) is entered into on November 2, 2021, by and between SilverBox Engaged Merger Corp I, a Delaware corporation (“SBEA”), and the undersigned subscriber (the “Subscriber”).

 

WHEREAS, this Subscription Agreement is being entered into in connection with the Business Combination Agreement, dated as of the date hereof (as may be amended, supplemented or otherwise modified from time to time, the “Transaction Agreement”), by and among SBEA, Grand Opal Investment Holdings, Inc., a Delaware corporation (“Blocker”), Authentic Brands, LLC, a Delaware limited liability company (the “Company”), BRC Inc., a Delaware corporation and a wholly owned subsidiary of SBEA (“PubCo”), SBEA Merger Sub LLC, a Delaware limited liability company and a wholly owned subsidiary of PubCo (“Merger Sub 1”), and BRCC Blocker Merger Sub LLC, a Delaware limited liability company and a wholly owned subsidiary of SBEA (“Merger Sub 2”), and the other parties thereto, pursuant to which, among other things, (i) Merger Sub 1 will merge with and into SBEA, with Merger Sub 1 surviving such merger as a wholly owned subsidiary of PubCo (the “PubCo Merger”), and (ii) immediately following the PubCo Merger, Merger Sub 2 will merge with and into Blocker, with Blocker surviving such merger as a wholly owned subsidiary of Merger Sub 1, in each case, on the terms and subject to the conditions set forth therein (collectively, the “Transaction”);

 

WHEREAS, in connection with the Transaction, SBEA is seeking commitments from interested investors to purchase, immediately prior to the closing of the Transaction, shares (the “Shares”) of SBEA’s Class C common stock, par value $0.0001 per share (the “Class C Common Stock”), in a private placement for a purchase price of $10.00 per share (the “Per Share Subscription Price”) on the terms and subject to the conditions contained herein; and

 

WHEREAS, substantially concurrently with the execution of this Subscription Agreement, SBEA is entering into substantially identical subscription agreements (collectively, the “Other Subscription Agreements”) with certain other investors (the “Other Subscribers” and, together with the Subscriber, the “Subscribers”), pursuant to which the Subscribers have agreed to purchase an aggregate of 20,000,000 Shares (inclusive of the Shares to be purchased by the Subscriber pursuant to this Subscription Agreement) (the “PIPE Investment”).

 

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, set forth herein, and intending to be legally bound hereby, each of the Subscriber and SBEA acknowledges and agrees as follows:

 

1.                  Subscription. Subject to the terms and conditions provided for herein, the Subscriber hereby irrevocably subscribes for and agrees to purchase from SBEA, and SBEA hereby irrevocably agrees to issue and sell to the Subscriber, the number of Shares set forth on the signature page of this Subscription Agreement; provided, that, in the event the Aggregate Redemption Amount (as defined below) exceeds $100,000,000, the Subscriber shall purchase from SBEA, and SBEA will sell to the Subscriber, an additional number of Shares (the “Backstop Shares”) equal to the quotient of (i) the lesser of (x) the Maximum Additional Subscription Amount set forth on the Subscriber’s signature page hereto and (y) the product of (1) the Backstop Percentage set forth on the Subscriber’s signature page hereto and (2) the excess of the Aggregate Redemption Amount over $100,000,000, divided by (ii) $10.00. As used in this Subscription Agreement (unless the context otherwise requires), (i) “Aggregate Redemption Amount” shall refer to the aggregate amount payable in respect of all shares of Class A Common Stock validly submitted for redemption by the holders thereof (which redemptions are not revoked prior to the distribution of the Closing Notice), with each share redeemed at a per-share price equal to a pro rata share of the aggregate amount on deposit in SBEA’s trust account (including any interest earned on the funds held in the trust account), (ii) “Shares” shall refer to the number of shares of Class C Common Stock set forth on the Subscriber’s signature page hereto, as increased by the number of Backstop Shares, if any, and (iii) “Subscription Amount” shall refer to the Minimum Subscription Amount set forth on the Subscriber’s signature page hereto, as increased by the amount equal to the product of the number of Backstop Shares, if any, and $10.00, in each case of clauses (ii) and (iii), after giving effect to rounding to eliminate the issuance of partial shares of Class C Common Stock. For the avoidance of doubt, the total amount to be funded by the Subscriber under this Subscription Agreement shall not exceed the sum of the Minimum Subscription Amount and the Maximum Additional Subscription Amount, each as set forth on the Subscriber’s signature page hereto. The Subscriber acknowledges and agrees that the Subscriber’s subscription for the Shares shall be deemed to be accepted by SBEA only if and when this Subscription Agreement is signed by a duly authorized person by or on behalf of SBEA; SBEA may do so in counterpart form.

 

 

 

 

2.                  Closing. The closing of the sale, purchase and issuance of the Shares contemplated hereby (the “Closing”) shall occur on a closing date (the “Closing Date”) specified in the Closing Notice (as defined below), which shall occur on the business day immediately preceding the closing date of the Transaction (the closing date of the Transaction, the “Transaction Closing Date”), and shall be conditioned on the conditions set forth in Section 3. Not less than five (5) business days prior to the scheduled Transaction Closing Date, SBEA shall provide written notice to the Subscriber (the “Closing Notice”) (i) of such scheduled Transaction Closing Date and the anticipated Closing Date, (ii) of the Aggregate Redemption Amount, together with a certificate duly executed by an officer of SBEA certifying such aggregate amount, and the number of Backstop Shares to be issued, if any, (iii) that SBEA reasonably expects all conditions to the closing of the Transaction to be satisfied or waived on such scheduled Transaction Closing Date (other than those conditions that by their nature are to be satisfied on the Transaction Closing Date) and (iv) wire instructions for delivery of the Subscription Amount to SBEA, or an account designated by SBEA. Not later than three (3) business days prior to the anticipated Transaction Closing Date, the Subscriber shall deliver the Subscription Amount to SBEA by wire transfer of United States dollars in immediately available funds to the account specified by SBEA in the Closing Notice, to be held by the escrow agent until the Closing Date. On the Closing Date, SBEA shall (i) issue the Shares to the Subscriber, and (ii) subsequently cause the Shares to be registered in book entry form (but no later than five (5) business days following the Transaction Closing Date) in the name of the Subscriber (or its nominee or custodian, as applicable, as directed by Subscriber) on the SBEA share register, which book entry records shall contain the restrictive legend referenced in Section 6(b); provided, however, that SBEA’s obligation to issue the Shares to the Subscriber is contingent upon SBEA having received the Subscription Amount in full accordance with this Section 2. For purposes of this Subscription Agreement, “business day” shall mean a day, other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close. Prior to or at the Closing, the Subscriber shall deliver to SBEA a duly completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8. Unless otherwise agreed to in writing by SBEA and the Subscriber, in the event the Transaction Closing Date does not occur within five (5) business days after the Closing Date under this Subscription Agreement, SBEA shall promptly (but not later than two (2) business days thereafter) return the Subscription Amount to the Subscriber by wire transfer of U.S. dollars in immediately available funds to the account specified by the Subscriber, and any book-entries for the Shares shall be deemed repurchased and cancelled; provided that, unless this Subscription Agreement has been terminated pursuant to Section 9 hereof, such return of funds shall (a) not terminate this Subscription Agreement, (b) by itself, constitute a failure of any of the conditions to Closing under Section 3, or (c) relieve the Subscriber of its obligation to purchase the Shares at the Closing upon the satisfaction of the conditions set forth in Section 3.

 

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3.                  Closing Conditions.

 

(a)              The obligation of SBEA to consummate the transactions contemplated hereunder is subject to the satisfaction (or valid waiver by SBEA, with the consent of the Company, in writing) of the conditions that:

 

(i)               the representations and warranties made by the Subscriber in this Subscription Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date other than (A) those representations and warranties qualified by materiality or similar qualification, which shall be true and correct in all respects as of the Closing Date, and (B) those representations and warranties expressly made as of an earlier date, which shall be true and correct in all material respects (or, if qualified by materiality or similar qualification, all respects) as of such date, in each case without giving effect to the consummation of the Transaction; and

 

(ii)              the Subscriber shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by the Subscriber at or prior to the Closing.

 

(b)             The obligation of the Subscriber to consummate the transactions contemplated hereunder is subject to the satisfaction (or valid waiver by the Subscriber in writing) of the conditions that:

 

(i)              the representations and warranties made by SBEA in this Subscription Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing Date other than (x) those representations and warranties qualified by materiality, Material Adverse Effect or similar qualification, which shall be true and correct in all respects as of the Closing Date and (y) those representations and warranties expressly made as of an earlier date, which shall be true and correct in all material respects (or, if qualified by materiality, Material Adverse Effect or similar qualification, all respects) as of such date, in each case without giving effect to the consummation of the Transaction;

 

(ii)             SBEA shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing; and

 

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(iii)             no suspension of the qualification of the Shares for offering or sale or trading in any jurisdiction and, to SBEA’s knowledge, no initiation nor threatening of any proceedings for any of such purposes, shall have occurred and be continuing.

 

(c)              The obligation of the parties hereto to consummate the transactions contemplated hereunder is subject to the satisfaction (or valid waiver by SBEA, with the consent of the Company, and the Subscriber in writing) of the conditions that:

 

(i)               no governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) that is then in effect and has the effect of making consummation of the transactions contemplated hereby illegal or otherwise restraining or prohibiting consummation of the transactions contemplated hereby; and no such governmental authority shall have instituted or threatened in writing a proceeding seeking to impose any such restraint or prohibition; and

 

(ii)              all conditions precedent to the closing of the Transaction set forth in the Transaction Agreement, including the approval of the Company’s stockholders and regulatory approvals, if any, shall have been satisfied (other than those conditions which, by their nature, are to be satisfied by a party to the Transaction Agreement at the closing of the Transaction, but subject to satisfaction or waiver by such party of such conditions as of the closing of the Transaction) or waived.

 

4.                  Further Assurances. At or prior to the Closing, the parties hereto shall use commercially reasonable efforts to execute and deliver or cause to be executed and delivered such additional documents and take such additional actions as the parties reasonably may deem to be practical and necessary to consummate the subscription as contemplated by this Subscription Agreement.

 

5.                  SBEA Representations and Warranties. SBEA represents and warrants to the Subscriber, as of the date hereof and as of the Closing Date, that:

 

(a)              SBEA has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.

 

(b)              As of the Closing Date, the Shares will be duly authorized and, when issued and delivered to the Subscriber against full payment therefor and registered with SBEA’s transfer agent in accordance with the terms of this Subscription Agreement, will be validly issued, fully paid and non-assessable, free and clear of any liens or other restrictions whatsoever (other than those arising under state or federal securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under SBEA’s certificate of incorporation or bylaws (as in effect at such time of issuance) or under the Delaware General Corporation Law or otherwise.

 

(c)              This Subscription Agreement has been duly authorized, executed and delivered by SBEA and, assuming the due authorization, execution and delivery of the Subscription Agreement by the Subscriber, is valid, binding and enforceable against SBEA in accordance with its terms, except as may be limited or otherwise affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting the rights of creditors generally, and subject, as to enforceability, to general principles of equity.

 

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(d)              The execution, delivery and performance of this Subscription Agreement, including the issuance and sale by SBEA of the Shares pursuant to this Subscription Agreement will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of SBEA or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which SBEA or any of its subsidiaries is a party or by which SBEA or any of its subsidiaries is bound or to which any of the property or assets of SBEA is subject that would reasonably be expected to materially affect the validity of the Shares or the legal authority of SBEA to comply in all material respects with its obligations under this Subscription Agreement (a “Material Adverse Effect”); (ii) result in any violation of the provisions of the organizational documents of SBEA; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over SBEA or any of its properties that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

(e)              As of their respective filing dates, all reports required to be filed by SBEA with the U.S. Securities and Exchange Commission (the “SEC”) prior to the date of this Subscription Agreement (the “SEC Reports”) complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the SEC promulgated thereunder. None of the SEC Reports filed under the Exchange Act included, when filed or, if amended, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. To SBEA’s knowledge, no SEC Report or Prospectus (as defined herein) to be filed by SBEA with respect to the Transaction or any other information relating to the Company or any of its affiliates included in any SEC Report or filed as an exhibit thereto, will include, when filed, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of the date hereof, there are no material outstanding or unresolved comments in comment letters received by SBEA from the staff of the Division of Corporation Finance of the SEC with respect to any of the SEC Reports. Other than as disclosed in the SEC Reports, the financial statements of SBEA included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing and fairly present in all material respects the financial position of SBEA as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited financial statements, to normal, year-end audit adjustments.

 

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(f)               SBEA is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the issuance of the Shares pursuant to this Subscription Agreement, other than (i) filings with the SEC, (ii) filings required by applicable state securities laws, (iii) the filings required in accordance with Section 13 of this Subscription Agreement, (iv) filings required by Nasdaq, or such other applicable stock exchange on which SBEA’s common equity is then listed (the “Stock Exchange”) and (v)  those the failure of which to obtain would not be reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

(g)              SBEA is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. As of the date hereof, SBEA has not received any written communication from a governmental authority that alleges that SBEA is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

(h)              Assuming the accuracy of the Subscriber’s representations and warranties set forth in Section 6 of this Subscription Agreement, no registration under the Securities Act is required for the offer and sale of the Shares by SBEA to the Subscriber.

 

(i)               Neither SBEA nor any person acting on its behalf has offered or sold the Shares by any form of general solicitation or general advertising in violation of the Securities Act.

 

(j)               SBEA is not under any obligation to pay any broker’s fee or commission in connection with the sale of the Shares.

 

(k)              There are no stockholder agreements, voting trusts or other agreements or understandings to which SBEA is a party or by which it is bound relating to the voting of any securities of SBEA, other than (1) as set forth in the SEC Reports and (2) as contemplated by the Transaction Agreement.

 

(l)                None of SBEA, any of its officers, directors, managers, managing members, general partners or any other person acting in a similar capacity or carrying out a similar function, is (i) named on the Specially Designated Nationals and Blocked Persons List, the Foreign Sanctions Evaders List, the Sectoral Sanctions Identification List, or any other similar list of sanctioned persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), or any similar list of sanctioned persons administered by the United Kingdom, the European Union or any individual European Union member state (collectively, “Sanctions Lists”); (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the United Kingdom, the European Union or any individual European Union member state; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515; or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, “Sanctions”). SBEA represents and covenants that if it is or becomes subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that SBEA maintains or will maintain policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. SBEA also represents and covenants that it maintains and will maintain policies and procedures reasonably designed to ensure compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, and sanctions administered by the United States, the United Kingdom, the European Union, or any individual European Union member state, to the extent applicable to it.

 

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(m)            SBEA is not a U.S. business that (i) produces, designs, tests, manufactures, fabricates, or develops one or more “critical technologies”; (ii) performs the functions as set forth in column 2 of Appendix A to 31 C.F.R. Part 800 with respect to “covered investment critical infrastructure”; or (iii) maintains or collects, directly or indirectly, “sensitive personal data” of U.S. citizens, in each case as such terms in quotation marks are defined in the Defense Production Act of 1950, as amended, including all implementing regulations thereof.

 

(n)             There are no pending or, to the knowledge of SBEA, threatened, suits, claims, actions, or proceedings, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. There is no unsatisfied judgment or any open injunction binding upon SBEA, which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

(o)              As of the date hereof, the authorized capital stock of SBEA consists of (i) 100,000,000 shares of Class A Common Stock, of which 34,500,000 are issued and outstanding, (ii) 10,000,000 shares of Class B Common Stock, par value $0.0001 per share, of which 8,625,000 are issued and outstanding and (iii) 1,000,000 shares of preferred stock, par value $0.0001 per share, of SBEA, of which no shares are issued and outstanding. Immediately following the filing of an amendment and restatement to SBEA’s certificate of incorporation with the Secretary of State of the State of Delaware, there will be authorized 30,000,000 shares of Class C Common Stock, par value $0.0001 per share, of which no shares will be issued and outstanding immediately prior to the Closing.

 

(p)              Notwithstanding anything to the contrary contained in Section 5 of this Agreement, no representation or warranty is made by SBEA as to the accounting treatment of its issued and outstanding warrants or other changes in accounting arising in connection with any required restatement of SBEA’s historical financial statements, or as to any deficiencies in disclosure (including with respect to financial statement presentation or accounting and disclosure controls) arising from the treatment of such warrants as equity rather than liabilities or any other required changes in the SEC Reports, including as a result of any order, directive, guideline, comment or recommendation from the SEC that is applicable to SBEA.

 

6.                  Subscriber Representations and Warranties. The Subscriber represents and warrants to SBEA, as of the date hereof and as of the Closing Date, that:

 

(a)              The Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), (5), (7) or (8) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for its own account and not for the account of others, or if the Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), (7) or (8) under the Securities Act), and the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information set forth on Schedule A).

 

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(b)              The Subscriber acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that the Shares have not been registered under the Securities Act and that SBEA is not required to register the Shares except as set forth in Section 7 of this Subscription Agreement. The Subscriber acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to SBEA or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and, in each case, in accordance with any applicable securities laws of the states of the United States and other applicable jurisdictions, and that the book entries representing the Shares shall contain a restrictive legend to such effect. The Subscriber acknowledges and agrees that the Shares will be subject to these securities law transfer restrictions and, as a result of these transfer restrictions, the Subscriber may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Subscriber acknowledges and agrees that the Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act, and that the provisions of Rule 144(i) will apply to the Shares. The Subscriber acknowledges and agrees that it has been advised to consult legal, tax and accounting advisors prior to making any offer, resale, transfer, pledge or disposition of any of the Shares.

 

(c)              The Subscriber acknowledges and agrees that the Subscriber is purchasing the Shares from SBEA in connection with the Transaction. The Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to the Subscriber by or on behalf of SBEA, the Company, or any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, in connection with the purchase of the Shares, other than those representations, warranties, covenants and agreements of SBEA expressly set forth in Section 5 of this Subscription Agreement. The Subscriber acknowledges that certain information provided to the Subscriber was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections.

 

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(d)             The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary to make an investment decision with respect to the Shares, including, without limitation, with respect to SBEA, the Transaction and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received access to and has had an adequate opportunity to review the SEC Reports, financial and other such information as the Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to SBEA, the Company and the Transaction. The Subscriber acknowledges and agrees that the Subscriber and the Subscriber’s legal, accounting, regulatory, tax and other professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and access, review and obtain such information as the Subscriber and such Subscriber’s legal, accounting, regulatory, tax and other professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares.

 

(e)             The Subscriber became aware of this offering of the Shares solely by means of direct contact between the Subscriber and SBEA, the Company or a representative of SBEA, the Company and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and SBEA, the Company or a representative of SBEA or the Company. The Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to the Subscriber, by any other means. The Subscriber acknowledges that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, SBEA, the Company, any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives of any of the foregoing), other than the representations and warranties of SBEA contained in Section 5 of this Subscription Agreement, in making its investment decision with respect to the purchase of the Shares.

 

(f)               The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Reports. The Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision and the Subscriber has made its own assessment and has satisfied itself concerning relevant tax or other economic considerations relative to its purchase of the Shares. The Subscriber acknowledges that Subscriber shall be responsible for any of the Subscriber’s tax liabilities that may arise as a result of the purchase and ownership of the Shares, and that neither SBEA nor the Company has provided any tax advice or any other representation or guarantee regarding the tax consequences of the purchase and ownership of the Shares.

 

(g)             Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in SBEA. The Subscriber acknowledges specifically that a possibility of total loss exists.

 

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(h)              In making its decision to purchase the Shares, the Subscriber represents that it has relied solely upon independent investigation made by the Subscriber, the Subscriber’s own sources of information, investment analysis and due diligence (including professional advice the Subscriber deems appropriate) and the representations, warranties and covenants of SBEA contained in Section 5 hereof with respect to the Transaction, the Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of SBEA and the Company, including but not limited to all business, legal, regulatory, accounting, credit, tax and other economic matters.

 

(i)               The Subscriber acknowledges and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares.

 

(j)               The Subscriber has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of formation or incorporation, and has the requisite power and authority to enter into, deliver and perform its obligations under this Subscription Agreement.

 

(k)              The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Subscriber is a party or by which the Subscriber is bound and will not violate any provisions of the Subscriber’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, partnership or operating agreement or indenture of trust or material agreement for borrowed money, as may be applicable. The signature of the Subscriber on this Subscription Agreement is genuine, and the signatory has legal competence and capacity to execute the same or the signatory has been duly authorized to execute the same, and, this Subscription Agreement has been duly executed and delivered by the Subscriber and, assuming that this Subscription Agreement constitutes the valid and binding agreement of SBEA, this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.

 

(l)                Neither the Subscriber nor any of its officers, directors, managers, managing members, general partners or any other person acting in a similar capacity or carrying out a similar function, is (i) a person or entity named on the Sanctions Lists; (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the European Union, any individual European Union member state, or the United Kingdom; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515; or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (each, a “Prohibited Subscriber”). The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the undersigned is permitted to do so under applicable law. The Subscriber represents that if it is a financial institution subject to the BSA/PATRIOT Act and that the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. The Subscriber also represents that it maintains policies and procedures reasonably designed (i) if the Subscriber is a portfolio company, investment fund or other investment vehicle, for the screening of its investors against Sanctions Lists and (ii) to ensure compliance with sanctions administered by the United States, the European Union, any individual European Union member state, and the United Kingdom, to the extent applicable to it. The Subscriber further represents that the funds held by the Subscriber and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Subscriber.

 

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(m)             If the Subscriber is or is acting on behalf of (i) an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), (iii) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in clauses (i) and (ii) (each, an “ERISA Plan”), or (iv) an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing clauses (i), (ii) or (iii) but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws,” and together with ERISA Plans, “Plans”), the Subscriber represents and warrants that (A) none of SBEA or the Company nor any of their respective affiliates (the “Transaction Parties”) has provided investment advice or has otherwise acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Shares, and none of the Transaction Parties is or shall at any time be the Plan’s fiduciary with respect to any decision in connection with the Subscriber’s investment in the Shares; and (B) its purchase of the Shares will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code, or any applicable Similar Law.

 

(n)              The Subscriber has and, when required to deliver payment to SBEA pursuant to Section 2 above, will have, sufficient funds to pay the Subscription Amount and consummate the purchase and sale of the Shares pursuant to this Subscription Agreement.

 

(o)              No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in SBEA as a result of the purchase and sale of Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over SBEA from and after the Closing as a result of the purchase and sale of Shares hereunder.

 

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7.                  Registration Rights.

 

(a)              In the event that the Shares are not registered in connection with the consummation of the Transaction, SBEA agrees that, within thirty (30) business days after the consummation of the Transaction (such deadline, the “Filing Deadline”), SBEA will submit to or file with the SEC a registration statement for a shelf registration on Form S-1 or Form S-3 (if SBEA is then eligible to use a Form S-3 shelf registration) (the “Registration Statement”), in each case, covering the resale of the Shares acquired by the Subscriber pursuant to this Subscription Agreement that are eligible for registration (determined as of two (2) business days prior to such submission or filing) (the “Registrable Shares”) and SBEA shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the 90^th calendar day following the Closing Date (or the one hundred twentieth (120th) calendar day if the SEC notifies SBEA that it will “review” the Registration Statement) and (ii) the 10th business day after the date SBEA is notified (orally or in writing, whichever is earlier) by the SEC that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Deadline”); provided, however, that if the Effectiveness Deadline falls on a Saturday, Sunday or other day that the SEC is closed for business, the Effectiveness Deadline shall be extended to the next business day on which the SEC is open for business; and provided, further, that SBEA’s obligations to include the Registrable Shares in the Registration Statement are contingent upon the Subscriber furnishing in writing to SBEA such information regarding the Subscriber or its permitted assigns, the securities of SBEA held by the Subscriber and the intended method of disposition of the Registrable Shares (which shall be limited to non-underwritten public offerings) as shall be reasonably requested by SBEA to effect the registration of the Registrable Shares, and the Subscriber shall execute such documents in connection with such registration as SBEA may reasonably request that are customary of a selling stockholder in similar situations, including providing that SBEA shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement, if applicable, during any customary blackout or similar period or as permitted hereunder; provided that the Subscriber shall not in connection with the foregoing be required to execute any lock-up or similar agreement or otherwise be subject to any contractual restriction on the ability to transfer the Registrable Shares. Notwithstanding the foregoing, if the SEC prevents SBEA from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 under the Securities Act for the resale of the Shares pursuant to this Section 7 by the applicable stockholders or otherwise, such Registration Statement shall register for resale such number of Shares which is equal to the maximum number of Shares as is permitted to be registered by the SEC. In such event, the number of Shares to be registered for each selling stockholder named in the Registration Statement shall be reduced pro rata among all such selling stockholders. In no event shall the Subscriber be identified as a statutory underwriter in the Registration Statement unless requested by the SEC; provided, that if the SEC requests that the Subscriber be identified as a statutory underwriter in the Registration Statement, the Subscriber will have the opportunity to withdraw from the Registration Statement upon its prompt written request to SBEA. For as long as the Subscriber holds Shares, SBEA will use its commercially reasonable efforts to timely file all reports for so long as the condition in Rule 144(c)(1) (or Rule 144(i)(2), if applicable) is required to be satisfied, and provide all customary and reasonable cooperation, necessary to enable the Subscriber to resell the Shares pursuant to Rule 144 of the Securities Act (in each case, when Rule 144 of the Securities Act becomes available to the Subscriber). Any failure by SBEA to file the Registration Statement by the Filing Deadline or to effect such Registration Statement by the Effectiveness Deadline shall not otherwise relieve SBEA of its obligations to file or effect the Registration Statement as set forth above in this Section 7.

 

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(b)              At its expense SBEA shall:

 

(i)               except for such times as SBEA is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement (“Prospectus”), use its commercially reasonable efforts to keep such registration, and any qualification, exemption or compliance under state securities laws which SBEA determines to obtain, continuously effective with respect to the Subscriber, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of any material misstatements or omissions, until the earliest of the following: (A) the Subscriber ceases to hold any Registrable Shares and (B) two (2) years from the date of effectiveness of the Registration Statement. The period of time during which SBEA is required hereunder to keep a Registration Statement effective is referred to herein as the “Registration Period”;

 

(ii)             during the Registration Period, advise the Subscriber, as expeditiously as possible:

 

(1)               when a Registration Statement or any post-effective amendment thereto has become effective;

 

(2)               after it shall receive notice or obtain knowledge thereof, of the issuance by the SEC of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose;

 

(3)               of the receipt by SBEA of any notification with respect to the suspension of the qualification of the Registrable Shares included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and

 

(4)               subject to the provisions in this Subscription Agreement, of the occurrence of any event that requires the making of any changes in any Registration Statement or Prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, in the light of the circumstances under which they were made) not misleading.

 

Notwithstanding anything to the contrary set forth herein, SBEA shall not, when so advising the Subscriber of such events, provide the Subscriber with any material, nonpublic information regarding SBEA other than to the extent that providing notice to the Subscriber of the occurrence of the events listed in (1) through (4) above constitutes material, nonpublic information regarding SBEA;

 

(iii)            during the Registration Period, use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable;

 

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(iv)            during the Registration Period, upon the occurrence of any event contemplated in Section 7(b)(ii)(4) above, except for such times as SBEA is permitted hereunder to suspend, and has suspended, the use of a Prospectus forming part of a Registration Statement, SBEA shall use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related Prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Shares included therein, such Prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and

 

(v)              during the Registration Period, use its commercially reasonable efforts to cause all Registrable Shares to be listed on each securities exchange or market, if any, on which the Shares have been listed.

 

(c)              Notwithstanding anything to the contrary in this Subscription Agreement, SBEA shall be entitled to delay the filing or effectiveness of, or suspend the use of, the Registration Statement (x) if it determines that in order for the Registration Statement not to contain a material misstatement or omission, (i) an amendment thereto would be needed to include information that would at that time not otherwise be required in a current, quarterly, or annual report under the Exchange Act or (ii) the negotiation or consummation of a transaction by SBEA or its subsidiaries is pending or an event has occurred, which negotiation, consummation or event SBEA’s board of directors reasonably believes, following consultation with counsel, would require additional disclosure by SBEA in the Registration Statement of material information that SBEA has a bona fide business purpose for keeping confidential and the non-disclosure of which in the Registration Statement would be expected, in the reasonable determination of SBEA’s board of directors, following consultation with counsel, to cause the Registration Statement to fail to comply with applicable disclosure requirements, (y) during any customary blackout or similar period or as permitted hereunder and (z) as may be necessary in connection with the preparation and filing of a post-effective amendment to the Registration Statement following the filing of SBEA’s Annual Report on Form 10-K for its first completed fiscal year following the Closing (each such circumstance, a “Suspension Event”); provided, however, that SBEA may not delay or suspend the Registration Statement for more than ninety (90) consecutive calendar days or for more than one hundred twenty (120) total calendar days during any twelve-month period. Upon receipt of any written notice from SBEA of the happening of any Suspension Event during the period that the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement or related Prospectus contains any untrue statement of a material fact or omits 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 were made, in the case of the Prospectus) not misleading, the Subscriber agrees that (i) it will immediately discontinue offers and sales of the Registrable Shares under the Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until the Subscriber receives copies of a supplemental or amended Prospectus (which SBEA agrees to promptly prepare and deliver) that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by SBEA that it may resume such offers and sales, and (ii) it will maintain the confidentiality of any information included in such written notice delivered by SBEA unless otherwise required by applicable law, rule, regulation or in connection with any legal proceeding or regulatory request; provided, that, for the avoidance of doubt, such written notice shall not include any material nonpublic information with respect to SBEA. If so directed by SBEA, the Subscriber will deliver to SBEA or, in the Subscriber’s sole discretion destroy, all copies of the Prospectus covering the Registrable Shares in the Subscriber’s possession; provided, however, that this obligation to deliver or destroy all copies of the Prospectus covering the Registrable Shares shall not apply (A) to the extent the Subscriber is required to retain a copy of such Prospectus (1) to comply with applicable legal, regulatory, self-regulatory or professional requirements or (2) in accordance with a bona fide pre-existing document retention policy or (B) to copies stored electronically on archival servers as a result of automatic data back-up.

 

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(d)              SBEA will use its commercially reasonable efforts to (A) at the reasonable request of Subscriber, deliver all the necessary documentation to cause SBEA’s transfer agent to remove all restrictive legends from any Shares being sold under the Registration Statement or pursuant to Rule 144 at the time of sale of the Shares, or that may be sold by Subscriber without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions, and (B) cause its legal counsel to deliver to the transfer agent the necessary legal opinions required by the transfer agent, if any, in connection with the instruction under clause (A) upon the receipt of Subscriber representation letters and such other customary supporting documentation as requested by (and in a form reasonably acceptable to) such counsel, in each case within three (3) trading days of such request. The Subscriber agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Shares to SBEA (or its successor) upon reasonable request to assist SBEA in making the determination described above.

 

(e)              For purposes of this Section 7, “Shares” shall mean, as of any date of determination, the subscribed Shares (as defined in the recitals to this Subscription Agreement) and any other equity security issued or issuable with respect to the subscribed Shares by way of share split, dividend, distribution, recapitalization, merger, exchange, replacement or similar event, and “Subscriber” shall include any affiliate of the Subscriber to which the rights under this Section 7 shall have been duly assigned. Following the consummation of the Transaction, the obligations of SBEA under this Section 7 shall be assumed by PubCo and references to SBEA shall refer to PubCo where applicable.

 

8.                  Short Sales. The Subscriber agrees that, from the date of this Subscription Agreement through the Closing, none of the Subscriber, its controlled affiliates, or any person or entity acting on behalf of the Subscriber or any of its controlled affiliates or pursuant to any understanding with the Subscriber or any of its controlled affiliates will engage in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which could reasonably be expected to lead to or result in, a sale, loan, pledge or other disposition or transfer (whether by the Subscriber or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any securities of SBEA, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of securities of SBEA, in cash or otherwise, or to publicly disclose the intention to undertake any of the foregoing.

 

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9. Termination. This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earliest to occur of (a) such date and time as the Transaction Agreement is terminated in accordance with its terms prior to the closing of the Transaction, (b) upon the mutual written agreement of each of the parties hereto and the Company to terminate this Subscription Agreement, and (c) the delivery of a notice of termination of this Subscription Agreement by the Subscriber to SBEA following the “Termination Date” as defined in the Business Combination Agreement (as such date may be amended or extended from time to time), if the closing of the Transaction has not occurred on or before such date (provided, that the right to terminate this Subscription Agreement pursuant to this clause (c) shall not be available to the Subscriber if the Subscriber’s breach of any of its covenants or obligations under this Subscription Agreement (or if an affiliate of the Subscriber is one of the Subscribers under an Other Subscription Agreement, and such other Subscriber’s breach of any of its covenants or obligations under the Other Subscription Agreement), either individually or in the aggregate, shall have proximately caused the failure of the consummation of the Transaction on or before such date); provided that nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from any such willful breach. SBEA shall notify the Subscriber of the termination of the Transaction Agreement promptly after the termination of such agreement. Upon the termination of this Subscription Agreement in accordance with this Section 9, any monies paid by the Subscriber to SBEA in connection herewith shall be promptly (and in any event within one business day after such termination) returned to the Subscriber without any deduction.

10.Trust Account Waiver. The Subscriber acknowledges that SBEA is a blank check company with the powers and privileges to effect a merger, asset acquisition, reorganization or similar business combination involving SBEA and one or more businesses or assets. The Subscriber further acknowledges that, as described in SBEA’s prospectus relating to its initial public offering dated February 25, 2021, substantially all of SBEA’s assets consist of the cash proceeds of SBEA’s initial public offering and private placements of its securities and substantially all of those proceeds have been deposited in the trust account (the “Trust Account”) for the benefit of SBEA, certain of its public stockholders and the underwriters of SBEA’s initial public offering pursuant to a trust agreement (the “Trust Agreement”). The Subscriber acknowledges that it has been advised by SBEA that, except with respect to interest earned on the funds held in the Trust Account that may be released to SBEA to pay its franchise tax, income tax or other tax obligations, the Trust Agreement provides that cash in the Trust Account may be disbursed only (a) if SBEA completes an initial business combination, then to those persons and in such amounts as required by the terms and conditions of such transaction, (b) if SBEA fails to complete an initial business combination within the allotted time period and liquidates, subject to the terms of the Trust Agreement and applicable law, to SBEA in limited amounts to permit SBEA to pay applicable taxes and the costs and expenses of its liquidation and dissolution, and then SBEA’s public stockholders, and (c) if SBEA holds a stockholder vote to amend SBEA’s amended and restated certificate of incorporation (A) to modify the substance or timing of SBEA’s obligation to allow redemption in connection with SBEA’s initial business combination or to redeem one hundred percent (100%) of the outstanding shares of Class A Common Stock if SBEA does not complete an initial business combination within the allocated time period or (B) with respect to any other provisions relating to the rights of holders of Class A Common Stock or pre-initial business combination activity, then for the redemption of any Class A Common Stock properly tendered in connection with such vote. For and in consideration of SBEA entering into this Subscription Agreement, the receipt and sufficiency of which are hereby acknowledged, the Subscriber hereby irrevocably waives any right, title, interest or claim of any kind it has or may have in the future in or to any monies in the Trust Account and distributions therefrom and agrees not to seek recourse against the Trust Account or any funds distributed therefrom whether or not as a result of, or arising out of, this Subscription Agreement or for any other reason; provided, however, that nothing in this Section 10 shall (a) serve to limit or prohibit Subscriber’s right, title, interest or claim to a pro rata interest in the Trust Account by virtue of the Subscriber’s record or beneficial ownership of Class A Common Stock acquired by any means other than pursuant to this Subscription Agreement and validly redeemed or (b) be deemed to limit Subscriber’s right to exercise any redemption rights with respect to any Class A Common Stock owned by Subscriber.

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11.Miscellaneous.

(a)Neither this Subscription Agreement nor any rights that may accrue to the Subscriber hereunder (other than the Shares acquired hereunder, if any) may be transferred or assigned, other than an assignment to (i) if the Subscriber is an investment fund or other investment vehicle, any fund or account managed by the Subscriber or the same investment manager as the Subscriber or an affiliate thereof, (ii) in the event that the Subscriber is a corporation, any parent company or wholly-owned subsidiary or affiliate of the Subscriber or such parent company, or (iii) any third party with the prior written consent of SBEA, in its sole discretion, in each case, subject to, if such transfer or assignment is prior to the Closing, such transferee or assignee, as applicable, executing a joinder to this Subscription Agreement or a separate subscription agreement in substantially the same form as this Subscription Agreement, including with respect to the Subscription Amount and other terms and conditions, provided, that, in the case of any such transfer or assignment made without the prior written consent of SBEA, as applicable, the initial party to this Subscription Agreement shall remain bound by its obligations under this Subscription Agreement in the event that the transferee or assignee, as applicable, does not comply with its obligations to consummate the purchase of Shares contemplated hereby. Neither this Subscription Agreement nor any rights that may accrue to SBEA hereunder or any of SBEA’s obligations may be transferred or assigned other than pursuant to the Transaction.

(b)SBEA may request from the Subscriber such additional information as SBEA may deem reasonably necessary to evaluate the eligibility of the Subscriber to acquire the Shares and in connection with the inclusion of the Shares in the Registration Statement, and the Subscriber shall promptly provide such information as may reasonably be requested, to the extent readily available and to the extent consistent with its internal policies and procedures, and provided that SBEA agrees to keep any such information provided by the Subscriber confidential, except as may be required by applicable law, rule, regulation or in connection with any legal proceeding or regulatory request. The Subscriber acknowledges and agrees that if it does not provide SBEA with such requested information, SBEA may not be able to register the Shares acquired by the Subscriber pursuant to this Subscription Agreement for resale pursuant to Section 7 hereof. The Subscriber hereby agrees that its identity and the Subscription Agreement, as well as the nature of the Subscriber’s obligations hereunder, may be disclosed in any public disclosure required by the SEC and in any registration statement, proxy statement, consent solicitation statement or any other SEC filing to be filed by SBEA in connection with the issuance of the Shares contemplated by this Subscription Agreement and/or the Transaction, provided that such disclosure is required by federal securities laws, rules or regulations or by other laws, rules or regulations, at the request of the staff of the SEC or regulatory agency or under the regulations of the Stock Exchange.

(c)The Subscriber acknowledges that SBEA and the Company and others will rely on the acknowledgements, understandings, agreements, representations and warranties of the Subscriber contained in this Subscription Agreement. Prior to the Closing, the Subscriber agrees to promptly notify SBEA if any of the acknowledgments, understandings, agreements, representations and warranties of the Subscriber set forth herein are no longer accurate. The Subscriber acknowledges and agrees that the purchase by the Subscriber of Shares under this Subscription Agreement from SBEA will constitute a reaffirmation of the acknowledgments, understandings, agreements, representations and warranties herein (as modified by any such notification) by the Subscriber as of the time of such purchase.

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(d)SBEA and the Company are each entitled to rely upon this Subscription Agreement and each is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby, subject to the terms and condition of this Subscription Agreement.

(e)All of the representations and warranties contained in this Subscription Agreement shall survive the Closing. All of the covenants and agreements made by each party hereto in this Subscription Agreement shall survive the Closing.

(f)This Subscription Agreement may not be modified, waived or terminated (other than pursuant to the terms of Section 9 above) except by an instrument in writing, signed by each of the parties hereto; provided, however, that no modification, amendment or waiver of the provisions of this Subscription Agreement shall be effective without the prior written consent of the Company ; provided further that the Subscriber may waive any rights hereunder without obtaining written consent from SBEA or the Company. No failure or delay of either party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties and third-party beneficiaries hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder.

(g)This Subscription Agreement (including the schedule hereto) constitutes the entire agreement, and supersedes all other prior agreements (including any existing commitment letter with SBEA), understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof. Except as set forth in Section 3(a), Section 3(c), Section 9, Section 11(c), Section 11(d), Section 11(f), this Section 11(g), Section 11(k) and Section 13, with respect to the persons referenced therein, this Subscription Agreement shall not confer any rights or remedies upon any person other than the parties hereto, and their respective successor and assigns and the parties hereto acknowledge that such persons so referenced are third party beneficiaries of this Subscription Agreement with right of enforcement for the purposes of, and to the extent of, the rights granted to them, if any, pursuant to the applicable provisions; provided, that, notwithstanding anything to the contrary contained in this Subscription Agreement, the Company is an intended third party beneficiary of each of the provisions of this Subscription Agreement.

(h)Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns. Without limiting the foregoing, the Subscriber may at any time by delivery of written notice to SBEA or, after the Closing, PubCo transfer all or a portion of the Shares to one or more of its Affiliates (as defined in the Transaction Agreement), and upon any such transfer the rights and obligations of the Subscriber under this Subscription Agreement with respect to such transferred Shares will inure to the benefit of and be binding upon each such Affiliate transferee.

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(i)If any provision of this Subscription Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect. The parties hereto shall endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).

(j)This Subscription Agreement may be executed in one or more counterparts (including by electronic mail or in .pdf) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.

(k)The parties hereto acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Subscription Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Subscription Agreement, without posting a bond or undertaking and without proof of damages, to enforce specifically the terms and provisions of this Subscription Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise. The parties hereto acknowledge and agree that the Company shall be entitled to seek to specifically enforce the Subscriber’s obligations to fund the Subscription Amount and the provisions of this Subscription Agreement of which the Company is an express third party beneficiary, in each case, on the terms and subject to the conditions set forth herein.

(l) THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE (OR, TO THE EXTENT SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, THE SUPERIOR COURT OF THE STATE OF DELAWARE, OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE) SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS SUBSCRIPTION AGREEMENT AND THE DOCUMENTS REFERRED TO IN THIS SUBSCRIPTION AGREEMENT AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF OR ANY SUCH DOCUMENT THAT IS NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS SUBSCRIPTION AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION, SUIT OR PROCEEDING SHALL BE HEARD AND DETERMINED BY SUCH A DELAWARE STATE OR FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN THIS SECTION 11(l) or SECTION 15 OF THIS SUBSCRIPTION AGREEMENT OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE THEREOF. THIS SUBSCRIPTION AGREEMENT, AND ANY CLAIM OR CAUSE OF ACTION HEREUNDER BASED UPON, ARISING OUT OF, OR RELATED TO THIS SUBSCRIPTION AGREEMENT (WHETHER BASED ON LAW, IN EQUITY, IN CONTRACT, IN TORT OR ANY OTHER THEORY) OR THE NEGOTIATION, EXECUTION, PERFORMANCE OR ENFORCEMENT OF THIS SUBSCRIPTION AGREEMENT, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD OTHERWISE REQUIRED THE APPLICATION OF THE LAW OF ANY OTHER STATE.

(m)EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS SUBSCRIPTION AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY; AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS SUBSCRIPTION AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 11(m).

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12.Each of the Subscriber and SBEA acknowledges and agrees that for U.S. federal income tax purposes, the Subscriber shall be deemed to be the owner of any funds transferred by the Subscriber to SBEA unless and until the Closing is fully completed in accordance with the terms of this Subscription Agreement.

13.Non-Reliance and Exculpation. The Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, SBEA, the Company, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing) with respect to the purchase of the Shares pursuant to this Subscription Agreement, other than the statements, representations and warranties of SBEA expressly contained in Section 5 of this Subscription Agreement, in making its investment or decision to purchase the Shares. The Subscriber acknowledges and agrees that none of (i) any Other Subscriber pursuant to any Other Subscription Agreement related to the PIPE Investment (including the Other Subscriber’s respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing), (ii) any other party to the Transaction Agreement (other than SBEA), or (iii) any affiliates, or any control persons, officers, directors, employees, partners, agents or representatives of any of SBEA, the Company or any other party to the Transaction Agreement shall be liable to the Subscriber pursuant to this Subscription Agreement related to the PIPE Investment, the negotiation hereof or the subject matter hereof, or the transactions contemplated hereby, for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares, including, without limitation, with respect to any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares or with respect to any claim (whether in tort, contract or otherwise) for breach of this Subscription Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, as expressly provided herein, or for any actual or alleged inaccuracies, misstatements or omissions with respect to any information or materials of any kind furnished by SBEA, the Company or any Non-Party Affiliate concerning SBEA, the Company, any of their affiliates, this Subscription Agreement or the transactions contemplated hereby. For purposes of this Subscription Agreement, “Non-Party Affiliates” means each former, current or future officer, director, employee, partner, member, manager, direct or indirect equityholder or affiliate of SBEA, the Company or any of their respective affiliates or any family member of the foregoing.

14.Press Releases. SBEA shall, on the first business day immediately following the date of this Subscription Agreement, issue one or more press releases or furnish or file with the SEC a Current Report on Form 8-K (collectively, the “Disclosure Document”) disclosing, to the extent not previously publicly disclosed, the PIPE Investment, all material terms of the Transaction and any other material, nonpublic information (whether written or oral) that SBEA or its directors, officers, employees, agents or representatives have provided to the Subscriber or any of its affiliates, or their respective directors, officers, employees, agents or representatives, at any time prior to the filing of the Disclosure Document. From and after the disclosure of the Disclosure Document, to the knowledge of SBEA, the Subscribers shall not be in possession of any material, nonpublic information received from SBEA or any of its officers, directors, employees, agents or representatives, and the Subscriber shall no longer be subject to any confidentiality or similar obligations under any current agreement, whether written or oral, with SBEA or any of its affiliates in connection with the Transaction. All press releases or other public communications of the Subscriber relating to the transactions contemplated hereby between SBEA and the Subscriber, and the method of the release for publication thereof, shall be subject to the prior approval of SBEA. Notwithstanding anything in this Subscription Agreement to the contrary, SBEA shall not publicly disclose the name, or any trademark or logo of the Subscriber or its affiliates or investment advisers without the prior written consent of the Subscriber (i) in any press release, marketing or similar materials or (ii) in any filing with the SEC or with any regulatory agency or trading market, except as required by federal securities laws, rules or regulations or to the extent such disclosure is required by other laws, rules or regulations, at the request of the staff of the SEC or regulatory agency or under the regulations of the Stock Exchange. Notwithstanding anything in this Subscription Agreement to the contrary, SBEA shall use reasonable efforts to not, and shall use reasonable efforts to cause each of its directors, officers, employees, agents and representatives to not, provide the Subscriber with any material nonpublic information (whether written or oral) regarding SBEA from and after the filing of the Disclosure Document with the SEC without the express prior written consent of the Subscriber. SBEA understands and confirms that the Subscriber and the Subscriber’s affiliates, attorneys, agents or representatives will rely on the foregoing representations and covenants in effecting transactions of securities in SBEA.

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15.Notices. All notices and other communications among the parties shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (iii) when delivered by FedEx or other nationally recognized overnight delivery service, or (iv) when delivered by email (in each case in this clause (iv), solely if receipt is confirmed, but excluding any automated reply, such as an out-of-office notification), addressed as follows:

If to the Subscriber, to the address provided on the Subscriber’s signature page hereto.

If to SBEA, to:

SilverBox Engaged Merger Corp I
1250 S. Capital of Texas Highway

Building 2, Suite 285

Austin, TX 78746

Attention:	Stephen M. Kadenacy
Email:	sk@sbcap.com

with copies to (which shall not constitute notice), to:

Paul Hastings LLP
515 South Flower Street
Twenty-Fifth Floor
Los Angeles, CA 90071 

Attention:	Jonathan Ko
Email:	jonathanko@paulhastings.com

and

Paul Hastings LLP

1999 Century Park East

Los Angeles, CA 90067

Attention:	David Hernand
Email:	davidhernand@paulhastings.com

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If to the Company, to:

Authentic Brands LLC
1144 S 500 W
Salt Lake City, UT 84101

Attention:	Tom Davin
Email:	tom.davin@blackriflecoffee.com

with copies to (which shall not constitute notice), to:

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

Attention:	Joshua N. Korff, P.C.
	Peter Seligson
Email:	joshua.korff@kirkland.com
	peter.seligson@kirkland.com

or to such other address or addresses as the parties may from time to time designate in writing. Copies delivered solely to outside counsel shall not constitute notice.

16.Stock Splits, etc. Other than as contemplated by the Transaction Agreement, if any change in the shares of SBEA Class C Common Stock shall occur between the date hereof and immediately prior to the Closing by reason of any reclassification, recapitalization, stock split (including reverse stock split) or combination, exchange or readjustment of shares, or any stock dividend, the number and type of Shares issued to the Subscriber and the Subscription Amount and Per Share Subscription Price shall be appropriately adjusted to reflect such change.

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17.Separate Obligations. The obligations of the Subscriber under this Subscription Agreement are several and not joint with the obligations of any Other Subscriber or any other investor under the Other Subscription Agreements, and the Subscriber shall not be responsible in any way for the performance of the obligations of any Other Subscriber under any Other Subscriber or other investor under the Other Subscription Agreements. The decision of Subscriber to purchase Shares pursuant to this Subscription Agreement has been made by Subscriber independently of any Other Subscriber or any other investor and independently of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of SBEA, the Company or any of its subsidiaries which may have been made or given by any Other Subscriber or investor or by any agent or employee of any Other Subscriber or investor, and neither Subscriber nor any of its agents or employees shall have any liability to any Other Subscriber or investor (or any other person) relating to or arising from any such information, materials, statements or opinions. Nothing contained herein or in any Other Subscription Agreement, and no action taken by the Subscriber pursuant hereto or by an Other Subscriber thereto, shall be deemed to constitute the Subscriber and Other Subscribers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Subscriber and Other Subscribers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Subscription Agreement and the Other Subscription Agreements. The Subscriber acknowledges that no Other Subscriber has acted as agent for the Subscriber in connection with making its investment hereunder and no Other Subscriber will be acting as agent of the Subscriber in connection with monitoring its investment in the Shares or enforcing its rights under this Subscription Agreement. The Subscriber shall be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Subscription Agreement, and it shall not be necessary for any Other Subscriber to be joined as an additional party in any proceeding for such purpose.

18.Other Subscription Agreements. SBEA represents to the Subscriber that each of the Other Subscription Agreements relating to the PIPE Investment is substantially identical to this Subscription Agreement and that the per share subscription price being paid by the Other Subscribers is the same as the Per Share Subscription Price provided in this Subscription Agreement. SBEA agrees that if it enters into any amendment, modification or supplement to any Other Subscription Agreement, or waives or releases any provision thereof and, if such amendment, modification, supplement, waiver or release was currently in effect, would make the representation in the preceding sentence inaccurate, then SBEA shall promptly provide the Subscriber with written notice thereof and a copy of the applicable provisions of such Other Subscription Agreement (which need not identify such Other Subscriber), and unless the Subscriber elects otherwise within five business days after the date of such notice, this Subscription Agreement will be deemed to be amended to conform the provisions of this Subscription Agreement with the applicable provisions of such Other Subscription Agreement.

[SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEREOF, the Subscriber has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date set forth below.

Name of Subscriber:	State/Country of Formation or Domicile:
By:
Name:
Title:

Name in which Shares are to be registered (if different):	Date:  ________________, 2021
Subscriber’s EIN:
Business Address-Street:	Mailing Address-Street (if different):
City, State, Zip:	City, State, Zip:

Attn:	Attn:
Telephone No.:	Telephone No.:
Facsimile No.:	Facsimile No.:

Email Address: Email Address:

Number of Shares subscribed for:	[●] (prior to any increase pursuant to Section 1, if applicable)
Minimum Subscription Amount:	[●] (prior to any increase pursuant to Section 1, if applicable)
Maximum Additional Subscription Amount:	$[●]
Price Per Share:	$10.00
Backstop Percentage:	[●]%

You must pay the Subscription Amount by wire transfer of United States dollars in immediately available funds to the account specified by SBEA in the Closing Notice.

IN WITNESS WHEREOF, SBEA has accepted this Subscription Agreement as of the date set forth below.

	SILVERBOX ENGAGED MERGER CORP I
	By:
		Name: Stephen M. Kadenacy
		Title: Chief Executive Officer
Date: November 2, 2021

EX-10.2

Exhibit 10.2

AMENDED AND RESTATED FORWARD PURCHASE AGREEMENT

November 2, 2021

Engaged Capital, LLC
610 Newport Center Drive, Suite 250
Newport Beach, California 92660

Ladies and Gentlemen:

This letter agreement (this “Agreement”) is being entered into by and among Engaged Capital, LLC, a Delaware limited liability company, acting solely in its capacity as investment advisor (in such capacity, the “Advisor”) to one or more investment funds or accounts (each such investment fund or account, a “Subscriber” and collectively, the “Subscribers”), SilverBox Engaged Merger Corp I, a Delaware corporation (the “Company”), and Authentic Brands LLC, a Delaware limited liability company (“BRCC”), and amends and restates as set forth herein the Forward Purchase Agreement, dated as of February 24, 2021, between the Company and Subscriber, pursuant to which the Subscriber agreed to purchase, and the Company agreed to sell, an aggregate of 10,000,000 shares of Class A common stock, par value $0.0001 (the “Class A Common Stock”), of the Company, for an aggregate purchase price of $100,000,000 in connection with the Company’s initial business combination.

This Agreement is being entered into in connection with that certain Business Combination Agreement, dated as of the date hereof (as may be amended, supplemented or otherwise modified from time to time, the “Transaction Agreement”), by and among the Company, Grand Opal Investment Holdings, Inc., a Delaware corporation (“Blocker”), BRCC, BRC Inc., a Delaware corporation and a wholly owned subsidiary of SBEA (“PubCo”), SBEA Merger Sub LLC, a Delaware limited liability company and a wholly owned subsidiary of PubCo (“Merger Sub 1”), and BRCC Blocker Merger Sub LLC, a Delaware limited liability company and a wholly owned subsidiary of the Company (“Merger Sub 2”), pursuant to which, among other things, (i) Merger Sub 1 will merge with and into SBEA, with Merger Sub 1 surviving such merger as a wholly owned subsidiary of PubCo, and (ii) immediately following the foregoing merger, Merger Sub 2 will merge with and into Blocker, with Blocker surviving such merger as a wholly owned subsidiary of Merger Sub 1, in each case, on the terms and subject to the conditions set forth therein (collectively, the “Transaction”). Concurrently with the consummation of the Transaction, the Securities (as defined below) will be automatically cancelled, extinguished and converted into PubCo Class A Shares (as defined in the Transaction Agreement) on a one-for-one basis.

NOW, THEREFORE, in consideration of the premises, representations, warranties and the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

1.       Purchase of the Securities. For the sum of $100,000,000 (the “Purchase Price”), at the Closing (as defined herein), the Company agrees to sell to the Subscribers, and the Subscribers agree to purchase from the Company, 10,000,000 shares (the “Securities”) of Class C common stock, par value $0.0001 per share (the “Class C Common Stock”), of the Company, subject to and upon the terms and conditions set forth in this Agreement. No later than the business day immediately preceding the date of the special meeting to approve the Transaction, the Advisor shall allocate to one or more Subscribers the obligation to purchase the Securities set forth in this Section 1. Upon such allocation,

 

1.1    such Subscriber shall execute a joinder to this Agreement, substantially in the form attached as Exhibit A hereto (a “Joinder”), which shall reflect the number of Securities to be purchased by such Subscriber (the “Subscriber Securities”), and, upon such execution, such Subscriber shall have all the rights and obligations of a Subscriber hereunder with respect to the Subscriber Securities, and references herein to the “Subscriber” and “Securities” shall be deemed to refer to such Subscriber and to its Subscriber Securities; provided, that any representations, warranties, covenants and agreements of such Subscriber and any other Subscriber shall be several and not joint and shall be made as to such Subscriber or any other Subscriber, as applicable, as to itself only; and

 

 

 

1.2    upon a Subscriber’s execution and delivery of a Joinder, the number of Securities to be purchased by such Subscriber hereunder shall be reflected in Schedule A to this Agreement. For the avoidance of doubt, this Agreement need not be amended and restated in its entirety, but only Schedule A need be completed by each of the Subscriber and the Company upon the occurrence of any such allocation of the Forward Purchase Securities.

 

The Company acknowledges that this Agreement is neither a commitment nor an obligation of the Advisor to purchase any Securities, unless otherwise expressly agreed in writing by the Advisor.

 

2.       Representations, Warranties and Agreements.

 

2.1    Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the Securities to the Subscribers, and BRCC to enter into the Transaction Agreement and this Agreement, upon the execution of a Joinder, each Subscriber hereby represents and warrants, severally and not jointly, to the Company and to BRCC, and agrees with the Company and with BRCC as follows:

 

2.1.1           No Government Recommendation or Approval. Such Subscriber understands that no federal or state agency has passed upon or made any recommendation or endorsement of the offering of the Securities.

 

2.1.2           No Conflicts. The execution, delivery and performance of this Agreement and the consummation by such Subscriber of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) the formation and governing documents of such Subscriber, (ii) any agreement, indenture or instrument to which such Subscriber is a party, (iii) any law, statute, rule or regulation to which such Subscriber is subject, or (iv) any agreement, order, judgment or decree to which such Subscriber is subject, in each case (other than clause (i)), which would have a material adverse effect on such Subscriber or its ability to consummate the transactions contemplated by this Agreement.

 

2.1.3           Organization and Authority. Such Subscriber is a Delaware limited liability company, validly existing and in good standing under the laws of State of Delaware and possesses all requisite power and authority necessary to carry out the transactions contemplated by this Agreement. Upon execution and delivery by the Company and BRCC, this Agreement will be a legal, valid and binding agreement of such Subscriber, enforceable against such Subscriber in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

 

2.1.4           Experience, Financial Capability and Suitability. Such Subscriber is: (i) sophisticated in financial matters, is able to evaluate the risks and benefits of the investment in the Securities and has the capacity to protect its own interests and (ii) able to bear the economic risk of its investment in the Securities for an indefinite period of time because the Securities have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and therefore cannot be sold unless pursuant to an effective registration statement under the Securities Act (including pursuant to the Investor Rights Agreement (as defined below)) or an exemption from such registration is available with respect to such sale. Such Subscriber is able to afford a complete loss of such Subscriber’s investment in the Securities.

 

2.1.5           Access to Information; Independent Investigation. Prior to the execution of this Agreement, such Subscriber has had the opportunity to ask questions of and receive answers from representatives of the Company and BRCC concerning an investment in the Company and BRCC, as well as the finances, operations, business and prospects of the Company and BRCC and the opportunity to obtain additional information to verify the accuracy of all information so obtained. In determining whether to make this investment, such Subscriber has relied solely on such Subscriber’s own knowledge and understanding of the Company and BRCC and their respective businesses based upon such Subscriber’s own due diligence investigation and the information furnished pursuant to this paragraph. Such Subscriber understands that no person has been authorized to give any information or to make any representations that were not furnished pursuant to this Section 2 and such Subscriber has not relied on any other representations or information in making its investment decision, whether written or oral, relating to the Company, BRCC or any of their respective operations and/or its prospects.

 

2

 

 

2.1.6           Regulation D Offering. Such Subscriber represents that it is an “accredited investor” as such term is defined in Rule 50l(a) of Regulation D promulgated under the Securities Act, and acknowledges the sale contemplated hereby is being made in reliance on a private placement exemption to “accredited investors” within the meaning of Section 50l(a) of Regulation D promulgated under the Securities Act or similar exemptions under federal or state law.

 

2.1.7           Investment Purposes. Such Subscriber is purchasing the Securities solely for investment purposes, for such Subscriber’s own account and not for the account or benefit of any other person, and not with a view towards the distribution or dissemination thereof. Such Subscriber did not decide to enter into this Agreement as a result of any general solicitation or general advertising within the meaning of Rule 502 of Regulation D promulgated under the Securities Act.

 

2.1.8           Restrictions on Transfer; Shell Company. Such Subscriber understands the Securities are being offered in a transaction not involving a public offering within the meaning of the Securities Act. Such Subscriber understands the Securities will be “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, and such Subscriber understands that any certificates representing the Securities will contain a legend in respect of such restrictions. If in the future such Subscriber decides to offer, resell, pledge or otherwise transfer the Securities, such Securities may be offered, resold, pledged or otherwise transferred only pursuant to: (i) registration under the Securities Act or (ii) an available exemption from registration. Such Subscriber agrees that if any transfer of its Securities or any interest therein is proposed to be made, as a condition precedent to any such transfer, such Subscriber may be required to deliver to the Company an opinion of counsel satisfactory to the Company. Absent registration or an exemption, such Subscriber agrees not to resell the Securities. Such Subscriber further acknowledges that because the Company is a shell company, Rule 144 may not be available to such Subscriber for the resale of the Securities until one (1) year following consummation of the Business Combination, despite technical compliance with the requirements of Rule 144 and the release or waiver of any contractual transfer restrictions.

 

2.1.9           No Governmental or Other Consents. No governmental, administrative or other third-party consents, order or authorization, registration, qualification, designation, declaration, filing, or approvals are required or necessary on the part of such Subscriber in connection with the transactions contemplated by this Agreement.

 

2.1.10        No Public Market. Such Subscriber understands that no public market now exists for the Securities, and that neither the Company nor BRCC has made any assurances that a public market will ever exist for the Securities.

 

2.1.11        High Degree of Risk. Such Subscriber understands that its agreement to purchase the Securities involves a high degree of risk, which could cause such Subscriber to lose all or part of its investment.

 

2.1.12        No General Solicitation. Neither such Subscriber, nor, to its knowledge, any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including, through a broker or finder (i) engaged in any general solicitation, or (ii) published any advertisement in connection with the offer and sale of the Securities.

 

2.1.13        Adequacy of Financing. At the time of the Closing, such Subscriber will have available to it sufficient funds to satisfy its obligations under this Agreement.

 

2.2    Company’s Representations, Warranties and Agreements. To induce the Subscribers to purchase the Securities, the Company hereby represents and warrants to the Subscribers as follows:

 

2.2.1           Organization and Corporate Power. The Company is a Delaware corporation duly incorporated and validly existing and in good standing under the laws of the State of Delaware. The Company is qualified to do business in every jurisdiction in which the failure to so qualify would reasonably be expected to have a material adverse effect on the financial condition, operating results or assets of the Company. The Company possesses all requisite corporate power and authority necessary to carry out its business as presently conducted and as proposed to be conducted, including, without limitation, the transactions contemplated by this Agreement. As of the date hereof, the Company has no subsidiaries other than PubCo, Merger Sub 1 and Merger Sub 2.

 

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2.2.2           No Conflicts. The execution, delivery and performance of this Agreement and the consummation by the Company of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) the Certificate of Incorporation or Bylaws of the Company, (ii) any agreement, indenture or instrument to which the Company is a party or (iii) any law, statute, rule or regulation to which the Company is subject, or (iv) any agreement, order, judgment or decree to which the Company is subject.

 

2.2.3           Title to Securities. Upon issuance in accordance with, and payment pursuant to, the terms hereof, the Securities will be duly and validly issued, fully paid and non-assessable. Upon issuance in accordance with, and payment pursuant to, the terms hereof the Subscriber will have or receive good title to the Securities, free and clear of all liens, claims and encumbrances of any kind, other than (i) transfer restrictions described herein and under federal and state securities laws, and (ii) liens, claims or encumbrances imposed due to the actions of the Subscriber. Assuming the accuracy of the representations of the Subscriber in this Agreement, the Securities will be issued in compliance with all applicable federal and state securities laws.

 

2.2.4           No Adverse Actions. There are no actions, suits, investigations or proceedings pending, threatened against or affecting the Company that: (i) seek to restrain, enjoin, prevent the consummation of or otherwise affect the transactions contemplated by this Agreement or (ii) question the validity or legality of any such transactions or seeks to recover damages or to obtain other relief in connection with any such transactions.

 

2.2.5           Authorization. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Agreement, the Securities, the performance of all obligations of the Company required pursuant hereto, and the authorization, issuance or reservation for issuance of the Securities, has been taken. Upon execution and delivery by the Company, BRCC and the Subscriber of this Agreement, this Agreement will constitute a valid and legally binding obligation of the Company, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

 

2.2.6           Capitalization. The authorized capital stock of the Company on the date hereof, consists of 100,000,000 shares of Class A Common Stock, 34,500,000 of which are issued and outstanding, 10,000,000 shares of Class B common stock, par value $0.0001 per share (“Class B Common Stock”, and together with the Class A Common Stock, the “Common Stock”), 8,625,000 shares of which are issued and outstanding, and 1,000,000 shares of preferred stock, no shares of which are issued and outstanding. Immediately following the filing of the Second Amended and Restated Certificate of Incorporation of the Company, 20,000,000 shares of Class C Common Stock will be authorized, no shares of which will be issued and outstanding immediately prior to the Forward Closing Date. All issued and outstanding shares of the Common Stock (i) have been duly authorized and validly issued and (ii) are fully paid and non-assessable. The rights, preferences, privileges and restrictions of the Common Stock are as stated in the Certificate of Incorporation currently on file with the Delaware Secretary of State. There are no outstanding rights, options, warrants, preemptive rights, rights of first refusal or similar rights for the purchase or acquisition from the Company of any securities of the Company.

 

2.2.7           No Governmental or Other Consents. No governmental, administrative or other third-party consents, approvals, notices or filings are required or necessary on the part of the Company in connection with the transactions contemplated by this Agreement, other than the filing of a Form D with the Securities and Exchange Commission (the “SEC”) and such state Blue Sky, FINRA and Nasdaq (or other applicable stock exchange) consents and approvals as may be required.

 

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2.2.8           Operations. As of the date hereof, the Company has not conducted, and prior to the Closing the Company will not conduct, any operations other than as described in its filings with the SEC and activities in connection with the Business Combination.

 

3.       Settlement Date and Delivery.

 

3.1    Closing. The Company shall deliver a notice to the Subscriber, at least five (5) Business Days before the closing of the Business Combination (the “Business Combination Closing”) (or such lesser number of days as the Subscriber may consent to in writing), specifying the date of the Business Combination Closing, the aggregate Purchase Price for the Securities to be purchased by the Subscriber and instructions for wiring the Purchase Price. The closing of the sale of the Securities (the “Closing”) shall be held on the business day immediately prior to the date of the Business Combination Closing (such date being referred to as the “Forward Closing Date”). Except as otherwise mutually agreed by the parties hereto, at least one (1) Business Day prior to the Forward Closing Date, the Subscriber shall deliver to the Company, to be held in escrow until the Closing, the Purchase Price for the Securities by wire transfer of U.S. dollars in immediately available funds to the account specified by the Company in such notice. Immediately prior to the Closing on the Forward Closing Date, (i) the Purchase Price shall be released from escrow automatically and without further action by the Company or the Subscriber and (ii) upon such release, the Company shall issue the Securities to the Subscriber in book-entry form, free and clear of any liens or other restrictions whatsoever (other than those arising under state or federal securities laws), registered in the name of the Subscriber (or its nominee in accordance with its delivery instructions), or to a custodian designated by the Subscriber, as applicable. In the event the Business Combination Closing does not occur on the date scheduled for closing (unless otherwise extended), the Closing shall not occur, and the Company shall promptly (but not later than one (1) Business Day thereafter) return the Purchase Price to the Subscriber. For purposes of this Agreement, “Business Day” means any day, other than a Saturday or a Sunday, that is neither a legal holiday nor a day on which banking institutions are generally authorized or required by law or regulation to close in the City of New York, New York.

 

3.2    Conditions to Closing of the Company. The Company’s obligations to sell and issue the Securities at the Closing are subject to the fulfillment at or prior to the Closing, as applicable, of each of the following conditions:

 

3.2.1           Representations and Warranties Correct. The representations and warranties made by the Subscriber in Section 2.1 hereof shall be true and correct in all material respects when made and shall be true and correct in all material respects on and as of the Forward Closing Date (unless they specifically speak as of another date in which case they shall be true and correct in all material respects as of such date) with the same force and effect as if they had been made on and as of said date.

 

3.2.2           Blue Sky. The Company shall have obtained all necessary Blue Sky law permits and qualifications, or secured an exemption therefrom, required by any state for the offer and sale of the Securities.

 

3.2.3           No Injunction. No order, writ, judgment, injunction, decree, determination, or award shall have been entered by or with any governmental, regulatory, or administrative authority or any court, tribunal, or judicial, or arbitral body, and no other legal restraint or prohibition shall be in effect, preventing the purchase by the Subscriber of the Securities.

 

3.2.4           Second Amended and Restated Certificate of Incorporation of the Company. The Second Amended and Restated Certificate of Incorporation of the Company shall have been filed with the Delaware Secretary of State.

 

3.3    Conditions to Closing of the Subscriber. The Subscriber’s obligation to purchase the Securities at the Closing is subject to the fulfillment on or prior to the Forward Closing Date, as applicable, of each of the following conditions:

 

3.3.1           Representations and Warranties Correct. The representations and warranties made by the Company in Section 2.2 of this Agreement shall be true and correct in all material respects when made and shall be true and correct in all material respects on and as of the Forward Closing Date (unless they specifically speak as of another date in which case they shall be true and correct in all material respects as of such date) with the same force and effect as if they had been made on and as of said date.

 

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3.3.2           Covenants. All covenants, agreements and conditions contained in this Agreement to be performed by the Company on or prior to the Forward Closing Date shall have been performed or complied with in all material respects.

 

3.3.3           Blue Sky. The Company shall have obtained all necessary Blue Sky law permits and qualifications, or secured an exemption therefrom, required by any state for the offer and sale of the Securities.

 

3.3.4           Investor Rights Agreement. PubCo shall have entered into an investor rights agreement (the “Investor Rights Agreement”) in the form attached to the Transaction Agreement.

 

3.3.5           Business Combination. All conditions precedent to the closing of the Transaction set forth in the Transaction Agreement, including the approval of the Company’s stockholders and regulatory approvals, if any, shall have been satisfied (other than those conditions which, by their nature, are to be satisfied by a party to the Transaction Agreement at the closing of the Transaction, but subject to satisfaction or waiver by such party of such conditions as of the closing of the Transaction) or waived.

 

3.3.6           No Injunction. No order, writ, judgment, injunction, decree, determination, or award shall have been entered by or with any governmental, regulatory, or administrative authority or any court, tribunal, or judicial, or arbitral body, and no other legal restraint or prohibition shall be in effect, preventing the purchase by the Subscriber of the Securities.

 

4.       [RESERVED]

 

5.       Restrictions on Transfer of Securities.

 

5.1    Transfer Restrictions. The Subscriber hereby agrees not to sell, transfer, pledge, hypothecate or otherwise dispose of all or any part of the Securities prior to their conversion into PubCo Class A Shares upon consummation of the Transaction, and thereafter subject to the provisions of the Investor Rights Agreement.

 

5.2    Restrictive Legends.

 

5.2.1           Restrictive Legends. Subject to Section 5.2.2, the book entry for the Securities shall contain a notation, and each certificate (if any) representing any Securities shall have endorsed thereon a legend substantially as follows:

 

“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL FOR THE COMPANY, IS AVAILABLE.”

 

5.2.2           Legend Removal. (i) In connection with a transfer of Securities exempt from Section 5 of the Securities Act or through any broker-dealer transactions described in the plan of distribution set forth within a prospectus and pursuant to the registration statement of which such prospectus forms a part and (ii) at any time following the Securities being eligible for resale under Rule 144 promulgated under the Securities Act, without restriction, upon the Subscriber’s request, subject to applicable law, as interpreted by the Company with the advice of counsel, and the receipt of any customary documentation required from the Subscriber in connection therewith (including a representation that the Subscriber will only sell the Securities in accordance with such registration statement or Rule 144 promulgated under the Securities Act, as applicable), the Company shall (a) promptly instruct its transfer agent to remove any restrictive legends applicable to the Securities being transferred and (b) cause its legal counsel (which may be internal counsel to the Company) to deliver the necessary legal opinions, if any, to the transfer agent in connection with the instruction under clause (a). In addition, the Company shall cooperate reasonably with, and take such customary actions as may reasonably be requested by the Subscriber, in connection with the aforementioned transfers; provided, however, that the Company shall have no obligation to participate in any “road shows” or assist with the preparation of any offering memoranda or related documentation with respect to any transfer of Securities in any transaction that does not constitute an underwritten offering. The Company agrees to indemnify the transfer agent for the Securities as reasonably necessary and requested by the transfer agent to avoid the Subscriber of Securities having to provide a stock power with medallion guarantee in connection with a transfer of Securities. Following the consummation of the Transaction, the obligations of the Company under this Section 5 shall be assumed by PubCo and references to the Company shall refer to PubCo where applicable.

 

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5.3    Additional Shares or Substituted Securities. In the event of the declaration of a share dividend, the declaration of an extraordinary dividend payable in a form other than Common Stock, a spin-off, a share split, an adjustment in conversion ratio, a recapitalization or a similar transaction affecting the Company’s outstanding Common Stock without receipt of consideration, any new, substituted or additional securities or other property which are by reason of such transaction distributed with respect to any Securities subject to this Section 5 or into which such Securities thereby become convertible shall immediately be subject to this Section 5 and Section 3. Appropriate adjustments to reflect the distribution of such securities or property shall be made to the number and/or class of Securities subject to this Section 5 and Section 3.

 

6.       Other Agreements.

 

6.1    Further Assurances. Each of the Company, BRCC and the Subscriber agrees to execute such further instruments and to take such further action as may reasonably be requested by the other party to carry out the intent of this Agreement.

 

6.2    Notices. All notices, statements or other documents that are required or contemplated by this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt and (i) personal delivery, (ii) five (5) days after having been sent by first class registered or certified mail, (iii) one (1) Business Day after delivery to an overnight courier service or (iv) one (1) Business Day after transmission by e-mail. All such communications sent to the Company shall be sent to: SilverBox Engaged Merger Corp I, 1250 S. Capital of Texas Highway, Austin, TX 78746, Attn: Stephen M. Kadenacy, E-mail: sk@sbcap.com, or to such other address as may be designated in writing by the Company from time to time. All such communications sent to BRCC shall be sent to: Authentic Brands, LLC, 1144 S. 500 W, Salt Lake City, UT 84101, Attn: Tom Davin, Co-CEO, E-mail: tom.davin@blackriflecoffee.com, or to such other address as may be designated in writing by the Company from time to time. All such communications sent to the Subscriber shall be sent to the Subscriber’s address or email address, as applicable, as set forth on Exhibit A hereto, or to such other address as may be designated in writing by the Subscriber from time to time, in which event the Company shall amend Exhibit A hereto to reflect such new address.

 

6.3    Entire Agreement. This Agreement, together with any documents, instruments and writings that are delivered pursuant hereto or referenced herein, embodies the entire agreement and understanding between the Subscriber, the Company and BRCC with respect to the subject matter hereof and supersedes all prior oral or written agreements and understandings relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.

 

6.4    Modifications and Amendments. The terms and provisions of this Agreement may be modified or amended only by written agreement executed by all parties hereto.

 

6.5    Waivers and Consents. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.

 

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6.6    Assignment. This Agreement, and the rights and obligations hereunder (including the Subscriber’s rights and obligation to purchase the Securities), may not be assigned, in whole or in party, by either party hereto without the prior written consent of the other party, which consent may not be unreasonably withheld by the Company with respect to assignments by the Subscriber contemplated by Section 4.

 

6.7    Benefit. All statements, representations, warranties, covenants and agreements in this Agreement shall be binding on the parties hereto and shall inure to the benefit of the respective successors and permitted assigns of each party hereto. Nothing in this Agreement shall be construed to create any rights or obligations except among the parties hereto, and no person or entity shall be regarded as a third-party beneficiary of this Agreement.

 

6.8    Governing Law and Venue. This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the laws of New York applicable to contracts wholly performed within the borders of such state, without giving effect to the conflict of law principles thereof. The parties hereto (i) agree that any action, proceeding, claim or dispute arising out of, or relating in any way to, this Agreement shall be brought and enforced in the federal or state courts of New York City, in the State of New York, and the applicable appellate courts therefrom, and irrevocably submit to such jurisdiction and venue, which jurisdiction and venue shall be exclusive and (ii) waive any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum, subject to the provisions of the Securities Act or the Securities Exchange Act of 1934, as amended.

 

6.9    Severability. In the event that any court of competent jurisdiction shall determine that any provision, or any portion thereof, contained in this Agreement shall be unreasonable or unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such provision, or portion thereof, wholly unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full force and effect.

 

6.10 No Waiver of Rights, Powers and Remedies. No failure or delay by a party hereto in exercising any right, power or remedy under this Agreement, and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of such party. No single or partial exercise of any right, power or remedy under this Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Agreement shall entitle the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand.

 

6.11 Survival of Representations and Warranties. All representations and warranties made by the parties hereto in this Agreement or in any other agreement, certificate or instrument provided for or contemplated hereby, shall survive the execution and delivery hereof, any investigations made by or on behalf of the parties, the consummation of the transactions contemplated by this Agreement and the termination hereof.

 

6.12 No Broker or Finder. Each of the parties hereto represents and warrants to the other that no broker, finder or other financial consultant has acted on its behalf in connection with this Agreement or the transactions contemplated hereby in such a way as to create any liability on the other. Each of the parties hereto agrees to indemnify and save the other harmless from any claim or demand for commission or other compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of such party and to bear the cost of legal expenses incurred in defending against any such claim.

 

6.13 Headings and Captions. The headings and captions of the various subdivisions of this Agreement are for convenience of reference only and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof.

 

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6.14 Counterparts. This Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or any other form of electronic delivery, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.

 

6.15 Construction. The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa, unless the context otherwise requires. The words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The parties hereto intend that each representation, warranty, and covenant contained herein will have independent significance. If any party hereto has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity), which such party hereto has not breached will not detract from or mitigate the fact that such party hereto is in breach of the first representation, warranty, or covenant.

 

6.16 Mutual Drafting. This Agreement is the joint product of the Subscriber and the Company and each provision hereof has been subject to the mutual consultation, negotiation and agreement of such parties and shall not be construed for or against any party hereto.

 

6.17 Specific Performance. The parties hereto acknowledge and agree that (i) this Agreement is being entered into in order to induce BRCC and the Company to execute and deliver the Transaction Agreement and (ii) irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached and that money or other legal remedies would not be an adequate remedy for such damage. It is accordingly agreed that the parties shall be entitled to equitable relief, including in the form of an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms hereof, and provisions of this Agreement, this being in addition to any other remedy to which such party is entitled at law or, in equity, in contract, in tort or otherwise. The parties hereto acknowledge and agree that each of BRCC and the Company shall be entitled to specifically enforce the Subscriber’s obligations to purchase the Securities under this Agreement, on the terms and subject to the conditions set forth herein. The parties hereto further acknowledge and agree: (x) to waive any requirement for the security or posting of any bond in connection with any such equitable remedy; (y) not to assert that a remedy of specific enforcement pursuant to this Section 6.17 is unenforceable, invalid, contrary to applicable law or inequitable for any reason; and (z) to waive any defenses in any action for specific performance, including the defense that a remedy at law would be adequate.

 

7.       No Short Sales. The Subscriber hereby agrees that, from the date of this Agreement, none of the Subscriber, its controlled affiliates, or any person or entity acting on behalf of the Subscriber or any of its controlled affiliates or pursuant to any understanding with the Subscriber or any of its controlled affiliates will engage in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which could reasonably be expected to lead to or result in, a sale, loan, pledge or other disposition or transfer (whether by the Subscriber or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any securities of the Company prior to the Forward Closing Date, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of securities of the Company, in cash or otherwise, or to publicly disclose the intention to undertake any of the foregoing.

 

8.       Indemnification. Each party shall indemnify the other against any loss, cost or damages (including reasonable attorney’s fees and expenses) incurred as a result of such party’s breach of any representation, warranty, covenant or agreement in this Agreement.

 

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9.       Term.

 

9.1    Termination. Unless otherwise terminated by mutual agreement, the Subscriber’s obligation to acquire the Securities hereunder, and the Company’s obligation to sell the Securities hereunder, shall be in effect until the occurrence of any of the following (upon which occurrence this Agreement shall automatically terminate): (i) the consummation of the Business Combination within the time frame permitted by the Company’s amended and restated certificate of incorporation (the “Charter”), which is 27 months from the consummation of the IPO, including any extensions beyond such term effected pursuant to the terms of the Charter, and (ii) the liquidation of the Company in the event that the Company is unable to consummate the Business Combination within the time frame permitted by the Charter (including any extensions).

 

9.2    Effect of Termination. In the event of any termination of this Agreement pursuant to this Section 9, the Purchase Price (and interest thereon, if any), if previously paid, and all of the Subscriber’s funds paid in connection herewith shall be promptly returned to the Subscriber, and thereafter this Agreement shall forthwith become null and void and have no effect, without any liability on the part of the Subscriber, the Company, BRCC or their respective directors, officers, employees, partners, managers, members, stockholders or other equity holders and all rights and obligations of each party shall cease; provided, however, that nothing contained in this Section 9 shall relieve any party from liabilities or damages arising out of any fraud or willful breach by such party of any of its representations, warranties, covenants or agreements contained in this Agreement.

 

10.    Disclosure. The Subscriber hereby acknowledges that its identity and this Agreement, as well as the nature of the Subscriber’s obligations hereunder, may be disclosed in any public disclosure required by the SEC and in any registration statement, proxy statement, consent solicitation statement or any other SEC filing to be filed by the Company in connection with the issuance of the Securities contemplated by this Agreement and/or the Transaction, provided that such disclosure is required by federal securities laws, rules or regulations or by other laws, rules or regulations, at the request of the staff of the SEC or regulatory agency or under the regulations of any applicable stock exchange.

 

11.    Waiver of Claims against Trust. The Subscriber hereby acknowledges that it is aware that the Company established a trust account (the “Trust Account”) for the benefit of its public stockholders upon the closing of the IPO. The Subscriber hereby agrees that it has no right, title, interest or claim of any kind in or to any monies held in the Trust Account, except for redemption and liquidation rights the Subscriber may have in respect of any shares of Class A Common Stock issued as part of the units sold in the IPO (“Public Shares”) held by the Subscriber, if any. The Subscriber hereby agrees that it shall have no right of set-off or any right, title, interest or claim of any kind (“Claim”) to, or to any monies in, the Trust Account, and hereby irrevocably waives any Claim to, or to any monies in, the Trust Account that it may have now or in the future, except for redemption and liquidation rights the Subscriber may have in respect of any Public Shares held by the Subscriber, if any. In the event the Subscriber has any Claim against the Company under this Agreement, the Subscriber shall pursue such Claim solely against the Company and its assets outside the Trust Account and not against the property or any monies in the Trust Account, except for redemption and liquidation rights the Subscriber may have in respect of any Public Shares held by the Subscriber, if any.

 

[Signature Page Follows]

 

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If the foregoing accurately sets forth our understanding and agreement, please sign the enclosed copy of this Agreement and return it to us.

 

	Very truly yours,
	SILVERBOX ENGAGED MERGER CORP I
	By:	/s/ Stephen Kadenacy
	Name:	Stephen Kadenacy
	Title:	Chief Executive Officer
	AUTHENTIC BRANDS LLC
	By:	/s/ Tom Davin
	Name:	Tom Davin
	Title:	Co-Chief Executive Officer

 

Accepted and agreed as of the date first set forth above.

 

ENGAGED CAPITAL, LLC
By:	/s/ Glenn Welling
Name:	Glenn Welling
Title:	Managing Member

 

Exhibit B-1

 

EX-10.3

Exhibit 10.3

November 2, 2021

BRC Inc.
c/o SilverBox Engaged Merger Corp I
1250 S. Capital of Texas Highway
Building 2, Suite 285
Austin, TX 78746

Authentic Brands LLC
1144 S 500 W
Salt Lake City, UT 84101

Re: Sponsor Letter Agreement

Ladies and Gentlemen:

Reference is made to that certain Business Combination Agreement, dated as of November 2, 2021 (as may be further amended, restated, supplemented or otherwise modified from to time, the “Combination Agreement”), by and among SilverBox Engaged Merger Corp I, a Delaware corporation (“SilverBox”), BRC Inc., a Delaware public benefit corporation and wholly owned subsidiary of SilverBox (“Pubco”), SBEA Merger Sub LLC, a Delaware limited liability company and wholly owned subsidiary of Pubco (“Merger Sub 1”), BRCC Blocker Merger Sub LLC, a Delaware limited liability company and wholly owned subsidiary of SilverBox (“Merger Sub 2”), Grand Opal Investment Holdings, Inc., a Delaware corporation, and Authentic Brands LLC, a Delaware limited liability company (the “Company”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Combination Agreement.

WHEREAS, SilverBox Engaged Sponsor LLC, a Delaware limited liability company (the “Sponsor”), currently holds (a) 8,625,000 founder shares, which upon the Closing will convert into 7,383,750 Pubco Class A Shares (the “Class A Sponsor Shares”), 620,625 shares of Series C-1 Common Stock, par value $0.0001 per share, of Pubco (the “Series C-1 Common Stock”), 620,625 shares of Series C-2 Common Stock, par value $0.0001 per share, of Pubco (the “Series C-2 Common Stock” and, together with the Series C-1 Common Stock, the “Restricted Shares”; the Restricted Shares, together with the Class A Sponsor Shares, the “Sponsor Shares”), and (b) 6,266,667 private placement warrants, which will be exercisable for an aggregate of 6,266,667 Pubco Class A Shares (the “Sponsor Warrants”); and

WHEREAS, in order to induce the Company to consummate the transactions contemplated by the Combination Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Sponsor, Pubco and the Company hereby agree as follows:

1.Agreement to Vote. The Sponsor hereby unconditionally and irrevocably agrees to (a) vote at any meeting of the shareholders of SilverBox, however called (including any adjournment or postponement thereof), and in any action by written resolution of the shareholders of SilverBox, all of the SilverBox Class B Shares held by the Sponsor (together with any other Equity Securities of SilverBox that the Sponsor holds of record or beneficially, as of the date of this letter agreement, or acquires record or beneficial ownership after the date hereof) in favor of the Transaction Proposals and (b) withhold consent with respect to any matter, action or proposal that would reasonably be expected to result in a material breach of any of SilverBox’s covenants, agreements or obligations under the Combination Agreement or any of the conditions to the Closing set forth therein not being satisfied.

2.Waiver of Anti-Dilution Adjustment. The Sponsor hereby (a) waives, subject to, and conditioned upon, the occurrence of the Closing (for itself and for its successors, heirs and assigns), and (b) agrees not to assert or perfect, in each case, any rights to adjustment or other anti-dilution or similar protections with respect to the rate that the SilverBox Class B Shares held by the Sponsor convert into SilverBox Class A Shares in connection with the transactions contemplated by the Combination Agreement (including, for the avoidance of doubt, the transactions contemplated by the Subscription Agreements).

3.Treatment of Sponsor Shares and Sponsor Warrants.

(a)Pursuant to the terms and subject to the conditions set forth herein, including adjusting for shares subject to forfeiture in Section 3(b) and shares to be donated under Section 4(a), the Sponsor shall retain 7,033,750 of the Sponsor Shares and all of the Sponsor Warrants with no vesting criteria, forfeitures or other adjustments.

(b)Notwithstanding Section 3(a), (i) 1,158,500 Class A Sponsor Shares shall be forfeited at Closing; (ii) an aggregate of 1,241,250 Restricted Shares shall be non-transferrable and remain subject to forfeiture and cancellation as set forth in Sections 5 and 6; and (iii) a number of the Class A Sponsor Shares equal to the Adjusted Percentage multiplied by the number of Net Sponsor Shares shall be forfeited by the Sponsor in the event that, upon the Closing, the gross proceeds available for release to Sponsor from the Trust Account, plus the gross proceeds of the PIPE Financing (including through an additional PIPE financing) and the FPA Financing, before deductions for Transaction Expenses and other intended uses of cash, in each case pursuant to the terms of the Combination Agreement (the “Cash Threshold Amount”), is less than $445,000,000; provided, that the aggregate number of Class A Sponsor Shares subject to forfeiture pursuant to this Section 3(b)(iii) shall not exceed 2,068,750 Class A Sponsor Shares (the Class A Sponsor Shares subject to forfeiture pursuant to this Section 3(b)(iii), collectively, the “Additional Subject Shares”). Immediately upon the forfeiture of the Additional Subject Shares, for each Additional Subject Share so forfeited there shall be a corresponding decrease (on a one-for-one basis) in the aggregate number of Company Common Units issued by the Company to Pubco at the Closing.

(c)Within 30 days following the Closing Date, the Sponsor and any other Person holding Restricted Shares shall file with the Internal Revenue Service (the “IRS”), via certified mail, return receipt requested, a completed election on a protective basis under Section 83(b) of the Code and the regulations promulgated thereunder, with respect to its Restricted Shares, in the form attached hereto as Exhibit A and, upon such filing, shall thereafter provide Pubco with a copy of such election and proof of timely filing with the IRS. The Sponsor (and any other Person holding Restricted Shares) should consult its tax advisor regarding the consequences of Code Section 83(b) elections as well as the receipt, holding, vesting, sale and forfeiture of the Restricted Shares.

4.Donation of Sponsor Shares.

(a)The Sponsor has offered to and, on the Closing Date concurrently with the Closing, the Sponsor shall, donate 332,500 Class A Sponsor Shares to the BRCC Fund, a 501(c)(3) nonprofit organization (“BRCC Fund”), and, subject to certain of the Existing Company Unitholders concurrently donating, on a collective basis, at least 100,000 shares of Pubco Common Stock to the BRCC Fund, the Sponsor shall donate an additional 100,000 Class A Sponsor Shares to the BRCC Fund. For the avoidance of doubt, no Class A Sponsor Shares donated pursuant to this Section 4(a) shall be Restricted Shares. In connection with the donation contemplated in the immediately foregoing sentence, the Existing Company Unitholders shall have the right to donate Company Common Units or Pubco Class A Shares, at their election.

(b)Notwithstanding anything in Section 3 or this Section 4 to the contrary, in the event that, at any time prior to the first anniversary of the Closing Date, the trailing 30-day VWAP of Pubco Class A Shares equals or exceeds $15.00 per share, then at any time thereafter, (i) the Sponsor or any holder of the Sponsor Warrants (a “Sponsor Warrantholder”) shall be entitled to exercise the Sponsor Warrants by cashless exercise (i.e., exercise the Sponsor Warrants and purchase an equivalent value of Pubco Class A Shares) by delivering written notice to the Company and the warrant agent; or (ii) the Company may at any time deliver written notice to the Sponsor Warrantholders and the warrant agent requiring the Sponsor Warrantholders to exercise the Sponsor Warrants by cashless exercise. In the event of an exercise on a cashless basis, each Sponsor Warrantholder would pay the warrant exercise price by surrendering the Sponsor Warrants for that number of Pubco Class A Shares equal to the lesser of (A) the quotient obtained by dividing (x) the product of the number Pubco Class A Shares underlying the Sponsor Warrantholder’s Sponsor Warrants, multiplied by the difference between the exercise price of the Sponsor Warrants and the Fair Market Value of the Pubco Class A Shares by (y) the fair market value the Pubco Class A Shares and (B) 0.361. In the event of an exercise on a cashless basis initiated by the Company, a Sponsor Warrantholder would pay the warrant exercise price by surrendering their Sponsor Warrants for that number of shares of Pubco Class A Shares equal to 0.361. The Sponsor Warrants shall be deemed to be amended to the extent necessary to implement the foregoing terms set forth in this Section 4(b), and the Sponsor and the Company shall take all actions necessary or appropriate in connection therewith.

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5.Conversion of Restricted Shares.

(a)Pursuant to the Amended and Restated Company LLC Agreement, Pubco will hold a number of Restricted Units equal to the aggregate number of outstanding Restricted Shares. Each Restricted Share will be held in accordance with this letter agreement unless and until an applicable Vesting Event in accordance with the Amended and Restated Company LLC Agreement occurs with respect to the Restricted Unit held by Pubco corresponding to such Restricted Share.

(b)The occurrence of (i) a First Tier Vesting Event or Partial Vesting Event (based on the First Tier Vesting Event threshold) applicable to Restricted Units in accordance with the Amended and Restated Company LLC Agreement, if ever, shall be treated for purposes of this letter agreement and the Amended and Restated Certificate of Incorporation of Pubco (the “Pubco Charter”) as a conversion event in respect of the Series C-1 Common Stock (a “C-1 Conversion Event”) upon and after the Conversion Date with respect to such Restricted Units, (ii) a Second Tier Vesting Event or Partial Vesting Event (based on the Second Tier Vesting Event threshold) applicable to Restricted Units in accordance with the Amended and Restated Company LLC Agreement, if ever, shall be treated for purposes of this letter agreement and the Pubco Charter as a conversion event in respect of the Series C-2 Common Stock (a “C-2 Conversion Event”) upon and after the Conversion Date with respect to such Restricted Units, and (iii) a Full Vesting Event applicable to Restricted Units in accordance with the Amended and Restated Company LLC Agreement, if ever, shall be treated for purposes of this letter agreement and the Pubco Charter as a conversion event in respect of the Series C-1 Common Stock and the Series C-2 Common Stock (a “Full Conversion Event” and, together with any C-1 Conversion Event or any C-2 Conversion Event, collectively, the “Conversion Events”) upon and after the Conversion Date with respect to such Restricted Units.

(c)On a Conversion Date in respect of a Conversion Event, each Restricted Share to which such Conversion Event applies shall convert, automatically and without any further action by the Sponsor, Pubco or any other Person, into an equal number of Pubco Class A Shares in accordance with Section 4.3(D) of the Pubco Charter; provided that, if a C-1 Conversion Event has not occurred at the time of the occurrence of a C-2 Conversion Event, such C-1 Conversion Event shall be deemed to also occur upon the occurrence of the C-2 Conversion Event, such that all of the then outstanding Series C-1 Common Stock, if any, and Series C-2 Common Stock shall convert on the Conversion Date in respect of such Conversion Event in accordance with this Section 5.

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6.Cancellation of Restricted Shares.

(a) To the extent that, on or before the fifth anniversary of the Closing Date, the First Tier Vesting Event has not occurred with respect to a Restricted Unit pursuant to the Amended and Restated Company LLC Agreement and as a result any share of Series C-1 Common Stock has not converted in accordance with Section 5 hereof, then immediately and without any further action under this letter agreement, on the date that is the fifth anniversary of the Closing Date, 620,625 shares of Series C-1 Common Stock shall automatically be forfeited to Pubco and canceled for no consideration therefor and shall cease to be outstanding and any dividend declared in respect of such shares of Series C-1 Common Stock shall also be forfeited to Pubco for no consideration therefor.

(b)To the extent that, on or before the seventh anniversary of the Closing Date, the Second Tier Vesting Event has not occurred with respect to a Restricted Unit pursuant to the Amended and Restated Company LLC Agreement and as a result any share of Series C-2 Common Stock has not converted in accordance with Section 5 hereof, then immediately and without any further action under this letter agreement, on the date that is the seventh anniversary of the Closing Date, all of the remaining shares of Series C-2 Common Stock outstanding shall automatically be forfeited to Pubco and canceled for no consideration therefor and shall cease to be outstanding and any dividend declared in respect of such shares of Series C-2 Common Stock shall also be forfeited to Pubco for no consideration therefor.

7.Definitions. For purposes of this letter agreement:

(a)“Adjusted Percentage” means a percentage between 0% and 25%, based on a linear interpolation of the Cash Threshold Amount at the Closing between $445,000,000 and $300,000,000; provided that, for the avoidance of doubt, if the Cash Threshold Amount is (a) above $445,000,000, then the Adjusted Percentage shall be deemed to be 0% and (b) below $300,000,000, then the Adjusted Percentage shall be deemed to be 25%.

(b)“Conversion Date” has the meaning set forth in the Amended and Restated Company LLC Agreement.

(c)“Fair Market Value” means, with respect to the Pubco Class A Shares, the average closing price of the Pubco Class A Shares for the ten trading days ending on the third trading day prior to the date on which the notice of exercise is received by the warrant agent.

(d)“First Tier Vesting Event” has the meaning set forth in the Amended and Restated Company LLC Agreement.

(e)“Full Vesting Event” has the meaning set forth in the Amended and Restated Company LLC Agreement.

(f)“Net Sponsor Shares” means 8,275,000 Sponsor Shares.

(g)“Partial Vesting Event” has the meaning set forth in the Amended and Restated Company LLC Agreement.

(h)“Restricted Units” has the meaning set forth in the Amended and Restated Company LLC Agreement.

(i)“Second Tier Vesting Event” has the meaning set forth in the Amended and Restated Company LLC Agreement.

(j) “Vesting Event” has the meaning set forth in the Amended and Restated Company LLC Agreement.

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8.Transfer; Removal of Legends. Prior to the final determination of the number of Sponsor Shares to be adjusted in accordance with this letter agreement (if any), the Sponsor shall not, directly or indirectly, (a) sell, assign, transfer (including by operation of law), place a lien on, pledge, dispose of or otherwise encumber any of the Sponsor Shares or otherwise agree to do any of the foregoing, (b) deposit any of the Sponsor Shares into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect any of the Sponsor Shares that conflicts with any of the covenants or agreements set forth in this letter agreement, (c) enter into any contract, option or other arrangement or undertaking with respect to the direct or indirect acquisition or sale, assignment, transfer (including by operation of law) or other disposition of any of the Sponsor Shares, (d) engage in any hedging or other transaction which is designed to, or which would (either alone or in connection with one or more events, developments or events (including the satisfaction or waiver of any conditions precedent)), lead to or result in a sale or disposition of the Sponsor Shares even if such Sponsor Shares would be disposed of by a person other than such Person or (e) take any action that would have the effect of preventing or materially delaying the performance of its obligations hereunder. The Company will (1) at the request of the Sponsor, promptly deliver all necessary documentation to cause the Company’s transfer agent to remove any restrictive legends from any Sponsor Shares subject to non-transferability and forfeiture restrictions pursuant to the terms of this letter agreement at the time such restrictions may lapse pursuant to the terms hereof, and (2) cause its legal counsel to deliver to the transfer agent any necessary legal opinions required by the transfer agent, if any, in connection with the instruction under the foregoing clause (1) in this Section 8 upon the receipt of such customary supporting documentation as may be requested by (and in a form reasonably acceptable to) such counsel, in each case within three trading days of such request.

9.Indemnification.

(a)For a period of six (6) years after the Closing Date, Pubco will indemnify, exonerate and hold harmless the Sponsor from and against all actions, causes of action, suits, claims, liabilities, losses, damages and costs and out-of-pocket expenses in connection therewith (“Indemnified Liabilities”) incurred by the Sponsor, on or after the date of this Agreement, arising out of any third party action, cause of action, suit, litigation, investigation, inquiry, arbitration or claim directly relating to the transactions contemplated by the Combination Agreement which names the Sponsor as a defendant (or co-defendant) arising from the Sponsor’s ownership of equity securities of Pubco, or the Sponsor’s control or ability to influence Pubco; provided, that the foregoing shall not apply to (i) any Indemnified Liabilities to the extent arising out of any breach by the Sponsor of this Agreement or any other agreement between the Sponsor, on the one hand, and Pubco or any of its Subsidiaries, on the other hand, or (ii) the willful misconduct, gross negligence or fraud of the Sponsor.

(b)Promptly after the Sponsor believes that it has a claim for any Indemnified Liabilities, Sponsor shall notify Pubco and specify in such notice, in reasonable detail, the nature of the claim and an estimated computation of Indemnified Liabilities, as well as other material documents in possession of the Sponsor with respect to such claim, provided, that any failure or delay by the Sponsor to notify Pubco shall not relieve Pubco from its obligations hereunder (except to the extent that Pubco has been actually and materially prejudiced by such failure to promptly notify). Pubco shall have full control of the defense of any claim with respect to the Indemnified Liabilities, including any compromise or settlement thereof; provided, that Pubco shall not consent to the entry of any order or enter into any settlement agreement without the prior written consent of the Sponsor; provided, further, that such consent shall not be required if such order or settlement agreement contains a full and final release by the third party asserting the claim to Sponsor, and such order or settlement agreement does not contain any criminal liability or admission of guilt or impose any other non-monetary injunctive or equitable relief against the Sponsor. The Sponsor shall cooperate in the defense or prosecution of such claim, including by retaining and providing to Pubco all records and information which are reasonably relevant to such claim, making employees available to provide additional information and explanation of any materials provided hereunder and executing any documents necessary in connection with any settlement or order entered into in compliance with this Section 9(b).

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(c)The Sponsor shall have the right to employ separate counsel reasonably satisfactory to Pubco to represent it in any such claim with respect to Indemnified Liabilities and to participate in the defense thereof, but the fees and expenses of any such separate counsel shall be at the expense of the Sponsor; provided, that, the fees and expenses of any such separate counsel shall be at the expense of Pubco if (i) the claim seeks equitable relief against the Sponsor; (ii) the Sponsor shall have been advised by counsel in writing, with a copy delivered to Pubco, that the representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, including a situation in which one or more legal defenses may be available to the Sponsor that are inconsistent with, different from or in addition to those available to Pubco; or (iii) Pubco authorizes the Sponsor in writing to employ separate counsel at Pubco’s expense.

(d)The Sponsor shall use its commercially reasonable efforts to assist Pubco in seeking insurance recoveries first in respect of any Indemnified Liabilities.

10.Other Covenants. The Sponsor hereby agrees to be bound by and subject to Section 5.3(a) (Confidentiality), Section 5.4(a) (Public Announcements) and Section 5.5(b) (Exclusive Dealing) of the Combination Agreement to the same extent as such provisions apply to SilverBox, as if the Sponsor were directly party thereto.

11.Representations and Warranties. The Sponsor hereby represents and warrants to Pubco and the Company, as of the date hereof, that the Sponsor (a) owns, and holds of record, all of the Sponsor Shares and Sponsor Warrants, free and clear of all Liens, other than Permitted Liens and such Liens and other obligations imposed by applicable securities Laws, the Combination Agreement, the Investor Rights Agreement, the Governing Documents of Pubco or to the extent contemplated by this letter agreement and (b) other than to the extent contemplated by this letter agreement, has not sold, assigned, transferred (including by operation of law), placed a lien on, pledged, disposed of or otherwise encumbered any of the Sponsor Shares prior to or as of the date hereof.

12.Assignment. No party hereto may assign this letter agreement or any of its rights, interests, or obligations hereunder without the prior written consent of each of the other parties hereto. Any purported assignment in violation of this Section 11 shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This letter agreement shall be binding on the Sponsor, Pubco and their respective successors and assigns.

13.Notices. Any notice, consent, or request to be given in connection with any of the terms or provisions of this letter agreement shall be given to the Company in accordance with Section 9.4 of the Combination Agreement, and to Pubco or the Sponsor in accordance with the notice information set forth on such party’s signature page hereto, in each case, unless a party otherwise specifies a different address in a writing delivered to the other parties hereto.

14.Amendments. No amendment of any provision of this letter agreement shall be valid unless the same shall be in writing and signed by all of the parties hereto. No waiver of any provision or condition of this letter agreement shall be valid unless the same shall be in writing and signed by the party against which such waiver is to be enforced. No waiver by any party of any default, breach of representation or warranty or breach of covenant hereunder, whether intentional or not, shall be deemed to extend to any other, prior or subsequent default or breach or affect in any way any rights arising by virtue of any other, prior or subsequent such occurrence.

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15.Termination. This letter agreement shall automatically terminate, without any notice or other action by any party hereto, and be void ab initio upon the earlier of (a) the final determination of the number of Sponsor Shares and Sponsor Warrants to be adjusted in accordance with this letter agreement, if any, and the subsequent consummation of any such adjustments; (b) the termination of the Combination Agreement in accordance with its terms; and (c) the effective date of a written agreement of the parties hereto mutually terminating this letter agreement. Upon termination of this letter agreement as provided in the immediately preceding sentence, none of the parties hereto shall have any further obligations or Liabilities under, or with respect to, this letter agreement. Notwithstanding the foregoing or anything to the contrary in this letter agreement, (i) the termination of this Agreement pursuant to Section 14(b) shall not affect any Liability on the part of any party hereto for a willful breach of any covenant or agreement set forth in this letter agreement prior to such termination or Fraud and (ii) this Section 14 and Section 15 shall survive the termination of this letter agreement.

16.Miscellaneous. Section 9.1 (Non-Survival), Section 9.5 (Governing Law), Section 9.11 (Counterparts; Electronic Signatures), Section 9.15 (Waiver of Jury Trial), Section 9.16 (Submission to Jurisdiction) and Section 9.17 (Remedies) of the Combination Agreement are hereby incorporated into this letter agreement, mutatis mutandis, as though set out in their entirety in this Section 15.

[Signature Pages Follow]

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IN WITNESS WHEREOF, the undersigned has caused this Letter Agreement to be duly executed as of the date first above written.

SPONSOR:
SILVERBOX ENGAGED SPONSOR, LLC
By:	/s/ Steve Kadenacy
Name:	Steve Kadenacy
Title:	Co-Managing Member
NOTICE INFORMATION:
Address:
Attention:
Email:

[Signature Page to Sponsor Letter Agreement]

IN WITNESS WHEREOF, the undersigned has caused this Letter Agreement to be duly executed as of the date first above written.

PUBCO:
BRC INC.
By:	/s/ Steve Kadenacy
Name:	Steve Kadenacy
Title:	Chief Executive Officer
NOTICE INFORMATION:
Address:
Attention:
Email:

[Signature Page to Sponsor Letter Agreement]

IN WITNESS WHEREOF, the undersigned has caused this letter agreement to be duly executed as of the date first above written.

COMPANY:
AUTHENTIC BRANDS LLC
By:	/s/ Tom Davin
Name:	Tom Davin
Title:	Co-Chief Executive Officer

[Signature Page to Sponsor Letter Agreement]

EX-10.4

 

Exhibit 10.4

 

FORM OF TRANSACTION SUPPORT AGREEMENT

 

This TRANSACTION SUPPORT AGREEMENT (this “Agreement”), dated as of November 2, 2021, is made by and among SilverBox Engaged Merger Corp I, a Delaware corporation (“SilverBox”), Authentic Brands, LLC, a Delaware limited liability company (the “Company”), and the Company unitholder set forth on Schedule 1 hereto (the “Supporting Holder”). SilverBox, the Company and the Supporting Holder shall be referred to herein from time to time collectively as the “Parties”. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the BCA (as defined below).

 

WHEREAS, SilverBox, SBEA Merger Sub LLC, BRCC Blocker Merger Sub LLC, BRC Inc., the Company and the other parties thereto have simultaneously entered into that certain Business Combination Agreement dated as of the date hereof (as it may be amended, restated or otherwise modified from time to time in accordance with its terms, the “BCA”);

 

WHEREAS, as of the date hereof, the Supporting Holder is the record owner of (1) the number of Existing Company Class A Units set forth across from the Supporting Holder’s name on Schedule 1 under the column heading “Subject Class A Common Units” (the “Subject Class A Common Units”), and/or (2) the number of Existing Company Class B Units set forth across from the Supporting Holder’s name on Schedule 1 under the column heading “Subject Class B Units” (the “Subject Class B Common Units”, and together with the Existing Company Class A Units and any other Existing Company Units (or any securities convertible into or exercisable or exchangeable for Existing Company Units) that the Supporting Holder may hereafter acquire prior to the termination of this Agreement in accordance with Section 6, collectively, the “Covered Securities”);

 

WHEREAS, the BCA contemplates that the Parties will enter into this Agreement concurrently with the entry into the BCA by the parties thereto, pursuant to which, among other things, each Supporting Holder will agree to deliver to SilverBox, within two (2) Business Days after the Form S-4 is declared effective by the SEC, the Company Unitholder Written Consent (1) in favor of the adoption of the BCA and the Ancillary Documents to which the Company is or will be a party and (2) in favor of the approval of the transactions contemplated by the BCA and the Ancillary Documents (collectively, the “Transactions”); and

 

WHEREAS, in consideration for the benefits to be received by the Supporting Holder under the terms of the BCA and as an inducement to SilverBox and the Company to enter into the BCA and to consummate the transactions contemplated therein, the Parties desire to agree to certain matters as set forth herein.

 

NOW, THEREFORE, in consideration of the premises and the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby agree as follows:

 

1.                   Agreement to Vote. The undersigned Supporting Holder hereby unconditionally and irrevocably agrees, from the date hereof until the Termination Date, to deliver to the Company, for delivery to SilverBox within two (2) Business Days after the Form S-4 is declared effective by the SEC, the Company Unitholder Written Consent, under which it shall irrevocably and unconditionally consent to the matters, actions and proposals contemplated by Section 5.12(b) (Party Consents and Approvals) of the Business Combination Agreement. The undersigned Supporting Holder covenants and agrees that, prior to the Termination Date, the Supporting Holder shall, at any meeting of the members of the Company (and at any adjournment or postponement thereof), however called, and in any written actions by consent of the members of the Company, cause the Supporting Holder’s Covered Securities to be voted (including via proxy): (i) in favor of the adoption of the BCA, the Ancillary Documents and the transactions contemplated thereby, (ii) against any proposal in opposition to approval of the BCA, any Ancillary Document or any of the transactions contemplated by the BCA or such Ancillary Document, (iii) against any proposal, action or agreement that would (x) impede, frustrate, prevent or nullify any provision of this Agreement, the BCA, the Ancillary Documents or the transactions contemplated thereby, (y) result in a breach in any respect of any covenant, representation, warranty or any other obligation or agreement of the Company under the BCA, and (z) result in any of the conditions set forth in Article 7 of the BCA not being fulfilled, and (iv) against and withhold consent with respect to any Company Acquisition Proposal. The undersigned Supporting Holder agrees not to commence, join in, facilitate, assist or encourage, and agrees to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against SilverBox, the Company or any of their respective successors or directors or managers (A) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (B) alleging a breach of any fiduciary duty of any person in connection with the evaluation, negotiation or entry into the BCA.

 

 

 

 

2.                   Transfer of Units. The undersigned Supporting Holder hereby agrees that, prior to the Effective Time, without the prior written consent of each of SilverBox and the Company (such consent to be given or withheld in their sole discretion), the Supporting Holder shall not, directly or indirectly, (a) sell, assign, transfer (including by operation of law), hypothecate, place a lien on, pledge, dispose of, grant any option to purchase, distribute or otherwise encumber any of the Supporting Holder’s Covered Securities or otherwise agree to do any of the foregoing (each, a “Transfer”), (b) deposit any of the Supporting Holder’s Covered Securities into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect to any of the Supporting Holder’s Covered Securities that conflicts with any of the covenants or agreements set forth in this Agreement, (c) enter into any Contract, option or other arrangement or undertaking with respect to the direct or indirect acquisition or sale, assignment, transfer (including by operation of law) or other disposition of any of the Supporting Holder’s Covered Securities, (d) engage in any hedging or other transaction which is designed to, or which would (either alone or in connection with one or more events, developments or events (including the satisfaction or waiver of any conditions precedent)), lead to or result in a sale or disposition of the Supporting Holder’s Covered Securities or (e) take any action that would reasonably be expected to have the effect of preventing or materially delaying the performance of the Supporting Holder’s obligations hereunder; provided, however, that the foregoing shall not apply to any Transfer (i) to the Supporting Holder’s Affiliates, employees, officers or directors, any affiliates or family members of any of the Supporting Holder’s officers or directors, any employees, officers, directors; (ii) in the case of an individual, by gift to a member of one of the individual’s immediate family, an estate planning vehicle, or to a trust, the beneficiary of which is a member of the individual’s immediate family, an affiliate of such Person or to a charitable organization; (iii) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual; (iv) in the case of an individual, pursuant to a qualified domestic relations order; (v) by private sales or transfers made in connection with the transactions contemplated by the BCA; (vi) by pro rata distributions from the Supporting Holder to its members, partners, or shareholders pursuant to the Supporting Holder’s organizational documents; (vii) by virtue of applicable law or the Supporting Holder’s organizational documents upon liquidation or dissolution of the Supporting Holder; provided, that any transferee of any Transfer of the type set forth in clauses (i) through (vii) must enter into a written agreement in form and substance reasonably satisfactory to SilverBox and the Company agreeing to be bound by this Agreement prior to the occurrence of such Transfer; provided further, that the transferee will not be required to assume the voting obligations under Section 1 if the transferee’s assumption of such obligations would violate any applicable Laws, including any securities Laws, or would reasonably be expected to materially delay or impede the Form S-4 being declared effective under the Securities Act.

 

3.                   Appraisal and Dissenters’ Rights. Each Supporting Holder hereby irrevocably and unconditionally waives, and agrees not to assert or perfect, any rights of appraisal or other similar rights to dissent (including any notice requirements related thereto) with respect to the BCA or any of the transactions contemplated by the BCA that the Supporting Holder may have by virtue of ownership of Covered Securities (including all rights under the Company LLC Agreement and Section 18-210 of the DLLCA).

 

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4.                   Consent to Disclosure. Each Supporting Holder hereby consents to the publication and disclosure in the Form S-4 (and, as and to the extent otherwise required by applicable securities Laws or the SEC or any other securities authorities, any other documents or communications provided by the Company or SilverBox to any Governmental Entity or to securityholders of SilverBox) of the Supporting Holder’s identity and beneficial ownership of Covered Securities and the nature of the Supporting Holder’s commitments, arrangements and understandings under and relating to this Agreement and, if deemed appropriate by the Company or SilverBox, a copy of this Agreement. Each Supporting Holder will promptly provide any information reasonably requested by the Company or SilverBox for any regulatory application or filing made or approval sought in connection with the Transactions (including filings with the SEC).

 

5.                   Representations and Warranties. The undersigned Supporting Holder represents and warrants to SilverBox and the Company as follows: (a) if the Supporting Holder is not an individual, it is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated, formed, organized or constituted, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the Supporting Holder’s corporate, limited liability company or organizational powers and have been duly authorized by all necessary corporate, limited liability company or organizational actions on the part of the Supporting Holder; (b) if the Supporting Holder is an individual, the Supporting Holder has full legal capacity, right and authority to execute and deliver this Agreement and to perform his or her obligations hereunder; (c) this Agreement has been duly executed and delivered by the Supporting Holder and, assuming due authorization, execution and delivery by the other Parties, this Agreement constitutes a legally valid and binding obligation of the Supporting Holder, enforceable against the Supporting Holder in accordance with the terms hereof (except as enforceability may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles); (d) the execution and delivery of this Agreement by the Supporting Holder does not, and the performance by the Supporting Holder of the Supporting Holder’s obligations hereunder will not, (i) if the Supporting Holder is not an individual, conflict with or result in a violation of the organizational documents of the Supporting Holder, or (ii) require any consent or approval that has not been given or other action that has not been taken by any third party (including under any Contract binding upon the Supporting Holder or the Supporting Holder’s Covered Securities), in each case, to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance by the Supporting Holder of the Supporting Holder’s obligations under this Agreement; (e) there are no actions pending against the Supporting Holder or, to the knowledge of the Supporting Holder, threatened against the Supporting Holder, before (or, in the case of threatened actions, that would be before) any arbitrator or any Governmental Entity, which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by the Supporting Holder of the Supporting Holder’s obligations under this Agreement; (f) the Supporting Holder has had the opportunity to read the BCA and this Agreement and has had the opportunity to consult with its tax and legal advisors in connection therewith; (g) the Supporting Holder has not entered into, and shall not enter into, any agreement that would reasonably be expected to restrict, limit or interfere with the performance of the Supporting Holder’s obligations hereunder and (h) the Supporting Holder is the record and beneficial owner of all of the Supporting Holder’s Covered Securities, and there exist no Liens or any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such securities), other than pursuant to (i) this Agreement, (ii) the BCA, (iii) the Company LLC Agreement and (iv) any applicable securities laws.

 

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6.                   Termination. This Agreement shall automatically terminate, without any notice or other action by any Party, and be void ab initio upon the earlier of (a) the Effective Time; and (b) the valid termination of the BCA in accordance with its terms. Upon termination of this Agreement as provided in the immediately preceding sentence, none of the Parties shall have any further obligations or liabilities under, or with respect to, this Agreement. Notwithstanding the foregoing or anything to the contrary in this Agreement, (i) the termination of this Agreement shall not affect any liability on the part of any Party for a Willful Breach of any covenant or agreement set forth in this Agreement prior to such termination or Fraud, and (ii) Sections 6, 7, 8, 10, and 15 through 26 shall survive any termination of this Agreement pursuant to Section 6(a).

 

7.                   No Recourse. Except for claims pursuant to the BCA or any other Ancillary Document by any party(ies) thereto against any other party(ies) thereto, as applicable, each Party agrees that, notwithstanding anything that may be expressed or implied herein (except in the case of the immediately succeeding sentence), or any document, agreement, or instrument delivered contemporaneously herewith, and notwithstanding the fact that any Party may be a partnership or limited liability company, each Party hereto, by its acceptance of the benefits of this Agreement, covenants, agrees and acknowledges this Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby may only be brought against, the entities that are expressly named as parties hereto, and then only with respect to the specific obligations set forth herein with respect to such party. Except to the extent a named party to this Agreement (and then only to the extent of the specific obligations undertaken by such named party in this Agreement), (a) no past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor or representative or Affiliate of any named party to this Agreement and (b) no past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor or representative or Affiliate of any of the foregoing shall have any liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities of any of the Parties under this Agreement of or for any claim based on, arising out of or related to this Agreement or the transactions contemplated hereby.

 

8.                   Further Assurances. The undersigned Supporting Holder shall use reasonable best efforts to execute and deliver, or cause to be delivered, such additional documents, including the Investor Rights Agreement, and take, or cause to be taken, all such further actions and do, or cause to be done, all things reasonably necessary (including under applicable Laws), or reasonably requested by SilverBox or the Company, to effect the actions and consummate the transactions contemplated by this Agreement and the BCA (including the transactions contemplated thereby), in each case, on the terms and subject to the conditions set forth therein and herein, as applicable.

 

9.                   Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary, (a) the undersigned Supporting Holder makes no agreement or understanding herein in any capacity other than in the Supporting Holder’s capacity as a record holder and beneficial owner of the Supporting Holder’s Covered Securities and not in the Supporting Holder’s capacity as a director, officer or employee of the Company, if applicable, and (b) nothing herein will be construed to limit or affect any action or inaction expressly permitted under the BCA by the Supporting Holder or by any representative of the Supporting Holder in such Person’s capacity as a member of the board of managers of the Company or as an officer, employee or fiduciary of the Company or an Affiliate of the Company, in each case, acting in such Person’s capacity as a director, officer, employee or fiduciary of the Company.

 

10.               No Third Party Beneficiaries. This Agreement shall be for the sole benefit of the Parties and their respective successors and permitted assigns and is not intended, nor shall be construed, to give any Person, other than the Parties and their respective successors and assigns, any legal or equitable right, benefit or remedy of any nature whatsoever by reason this Agreement. Nothing in this Agreement, expressed or implied, is intended to or shall constitute the Parties, partners or participants in a joint venture.

 

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11.               No Ownership Interest. Nothing contained in this Agreement will be deemed to vest in SilverBox any direct or indirect ownership or incidents of ownership of or with respect to the Covered Securities. All rights, ownership and economic benefits of and relating to the Covered Securities shall remain vested in and belong to Supporting Holder, and SilverBox shall have no authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct the Supporting Holder in the voting of any of the Covered Securities, except as otherwise expressly provided herein with respect to the Covered Securities. Except as expressly set forth in Section 2, the Supporting Holder shall not be restricted from voting in favor of, against or abstaining with respect to any other matters presented to the members of the Company. Without limiting the foregoing, nothing in this Agreement shall limit the right of the Supporting Holder, or obligate or require the Supporting Holder to, exercise an option to purchase any Covered Securities.

 

12.               Acknowledgements. Each Party acknowledges that (a) Paul Hastings LLP, counsel for SilverBox, is representing SilverBox in connection with this Agreement, the BCA and the other transactions contemplated thereby, (b) Kirkland & Ellis LLP, counsel for the Company, is representing the Company in connection with the BCA and the other transactions contemplated thereby, (c) neither of the foregoing firms is representing the Supporting Holder in connection with this Agreement, the BCA or the other transactions contemplated hereby, thereby or otherwise and (d) the Supporting Holder acknowledges that he, she or it has had the opportunity to consult with its, his or her own counsel.

 

13.               Consent to Entry into the BCA. The Supporting Holder hereby consents to the Company entering into the BCA, to the extent such consent is required to satisfy any requirements contained in the Company LLC Agreement. For the avoidance of doubt, such consent shall not be deemed a consent or approval of the transactions contemplated by the BCA, or any consent or agreement to receive shares of Pubco Common Stock, or Company Common Units or other securities pursuant to any of the transactions contemplated by the BCA or otherwise, which consent shall only be given pursuant to the terms of, subject to the conditions set forth in and at the time described in this Agreement, the Company Unitholder Written Consent and the BCA.

 

14.               Amendment and Modification. This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing signed by SilverBox, the Company and each Supporting Holder charged with such amendment, modification or supplement.

 

15.               Waiver. No failure or delay by any Party exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies of the Parties are cumulative and are not exclusive of any rights or remedies which they would otherwise have hereunder. Any agreement on the part of a Party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by such Party.

 

16.               Fees and Expenses. Except as otherwise expressly set forth in the BCA, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby, including the fees and disbursements of counsel, financial advisors and accountants, shall be paid by the Party incurring such fees or expenses.

 

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17.               Notices. All notices and other communications hereunder shall be in writing and shall be deemed given (a) if delivered personally, when so delivered, (b) if delivered by email, when delivered if during normal business hours of the following Business Day if after normal business hours and, in either case, with confirmation of receipt or (c) if sent by a nationally recognized overnight courier service, such as Federal Express, or posted by registered or certified U.S. mail, return receipt requested and postage prepaid, when so delivered, and in any such case to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice made pursuant to this Section 17):

 

if to the Supporting Holder, to the address or email address set forth under the Supporting Holder’s name on Schedule 1, or in the absence of such address or email address being set forth on Schedule 1, the address (including email) set forth in the Company’s books and records,

 

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

 

Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
Attention: Steven V. Napolitano, P.C.; John A. Kaercher, P.C.; Joshua N. Korff, P.C.; Peter S. Seligson
E-mail: stephen.napolitano@kirkland.com; john.kaercher@kirkland.com; joshua.korff@kirkland.com; peter.seligson@kirkland.com

 

if to the Company to:

 

Authentic Brands, LLC
1144 S 500 W
Salt Lake City, UT 84101
Attn: Tom Davin, Co-CEO
Email: tom.davin@blackriflecoffee.com

 

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

 

Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
Attention: Steven V. Napolitano, P.C.; John A. Kaercher, P.C.; Joshua N. Korff, P.C.; Peter S. Seligson
E-mail: stephen.napolitano@kirkland.com; john.kaercher@kirkland.com; joshua.korff@kirkland.com; peter.seligson@kirkland.com

 

if to SilverBox prior to the Closing:

 

SilverBox Engaged Merger Corp I
1250 S. Capital of Texas Highway
Building 2, Suite 285
Austin, TX 78746
Attention: Joseph Reece
Stephen Kadenacy
E-mail: jr@sbcap.com
sk@sbcap.com

 

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

 

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Paul Hastings LLP
1999 Avenue of the Stars, 27th Floor
Los Angeles, CA 90067
Attention: David M. Hernand; Jonathan Ko
E-mail: davidhernand@paulhastings.com; jonathanko@paulhastings.com

 

18.               Changes in Capital Stock. In the event (a) of a split, dividend or distribution, or any change in Existing Company Units by reason of any split-up, reverse stock split, recapitalization, combination, reclassification, exchange of units or the like, (b) the Supporting Holder purchases or otherwise acquires beneficial ownership of any Existing Company Units or (c) the Supporting Holder acquires the right to vote or share in the voting of any Existing Company Units, the term “Covered Securities” shall be deemed to refer to and include such units as well as all such dividends and distributions and any securities into which or for which any or all of such units may be changed or exchanged or which are received in such transaction.

 

19.               Entire Agreement. This Agreement and the BCA constitute the entire agreement and understanding, and supersede all prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter hereof and thereof.

 

20.               Governing Law and Venue; Service of Process; Waiver of Jury Trial.

 

(a)                This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the internal Laws of the State of Delaware, including its statute of limitations, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws or statute of limitations of another jurisdiction.

 

(b)                Any Proceeding based upon, arising out of or related to this Agreement or the transactions contemplated hereby may only be brought in the Court of Chancery of the State of Delaware or, if such court lacks jurisdiction, the state and federal courts in the State of Delaware, and each of the Parties irrevocably submits to the exclusive jurisdiction of each such court in any such Proceeding, waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, agrees that all claims in respect of the Proceeding shall be heard and determined only in any such court, and agrees not to bring any Proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in any other court. Each Party consents to the service of process in any such Proceeding in the same manner as for giving notices under Section 17 or any other manner permitted by Law. Nothing herein contained shall be deemed to affect the right of any Party to serve process in any manner permitted by Law or to commence legal proceedings or otherwise proceed against any other Party in any other jurisdiction, in each case, to enforce judgments obtained in any Proceeding brought pursuant to this Section 20(b).

 

(c)                EACH OF THE PARTIES HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY AND IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

21.               Assignment; Successors. Neither this Agreement nor any of the rights, interests or obligations hereunder shall (a) be assigned by any of the Supporting Holders, in whole or in part (whether by operation of Law or otherwise), without the prior written consent of SilverBox and the Company or (b) be assigned by SilverBox or the Company, in whole or in part (whether by operation of law or otherwise), without the prior written consent of the Company (in the case of an attempted assignment by SilverBox) or SilverBox (in the case of an attempted assignment by the Company). Any such assignment without such consent shall be null and void. This Agreement shall be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns.

 

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22.               Trust Account Waiver. Notwithstanding anything to the contrary set forth herein, each Supporting Holder acknowledges that it has read the Trust Agreement, and understands that the Trust Account was established for the benefit of SilverBox’s public stockholders and that disbursements from the Trust Account are available only in the limited circumstances set forth therein. Each Supporting Holder further acknowledges and agrees that SilverBox’s sole assets consist of the cash proceeds of the SilverBox’s initial public offering and private placements of its securities, and that substantially all of these proceeds have been deposited in the Trust Account for the benefit of its public stockholders. Accordingly, each Supporting Holder (on behalf of itself and its Affiliates) hereby waives any past, present or future claim of any kind against, and any right to access, the Trust Account (or the distributions therefrom), any trustee of the Trust Account and SilverBox to collect from the Trust Account any monies that may be owed to them by SilverBox or any of its Affiliates for any reason whatsoever, and will not seek recourse against the Trust Account (or any distributions therefrom) at any time for any reason whatsoever, including for any Willful Breach of this Agreement. This Section 22 shall survive the termination of this Agreement for any reason.

 

23.               Enforcement. The Parties agree that irreparable damage (for which monetary damages, even if available, would not be an adequate remedy) would occur, and that the Parties would not have any adequate remedy at law, in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the Parties shall be entitled to specific performance, an injunction or injunctions, or other equitable relief to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, including each Supporting Holder’s obligations under Section 1, without proof of actual damages or otherwise (and each Party hereby waives any requirement for the securing or posting of any bond in connection with such remedy), this being in addition to any other remedy to which they are entitled at Law or in equity. Each Party acknowledges and agrees that the right of specific enforcement is an integral part of the transactions contemplated hereby and that, without such right, none of the Parties would have entered into this Agreement. Each Party agrees that it will not oppose the granting of specific performance and other equitable relief on the basis that the other Parties have an adequate remedy at Law.

 

24.               Severability. If any provision (or part thereof) of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of the provisions (or parts thereof) of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.

 

25.               Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, it being understood that each Party need not sign the same counterpart. Signatures delivered electronically or by facsimile shall be deemed to be original signatures.

 

26.               Interpretation and Construction. The words “hereof,” “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. References to Sections and Schedules are to Sections and Schedules of this Agreement, respectively, unless otherwise specified. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. The definitions contained in this Agreement are applicable to the masculine as well as to the feminine and neuter genders of such term. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words or words of like import. “Writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any statute shall be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder. References to any person include the successors and permitted assigns of that person. References from or through any date mean, unless otherwise specified, from and including such date or through and including such date, respectively. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. The term “or” is not exclusive.

 

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be duly executed on its behalf as of the day and year first above written.

 

	SILVERBOX ENGAGED MERGER CORP I
	By:
	Name:
	Title:

 

 

 

 

	AUTHENTIC BRANDS LLC
	By:
	Name:
	Title:

 

 

 

 

	SUPPORTING HOLDER:
	Name:

 

 

 

EX-10.5

Exhibit 10.5

Final Form

FORM OF INVESTOR RIGHTS AGREEMENT

THIS INVESTOR RIGHTS AGREEMENT (as it may be amended, supplemented or restated from time to time in accordance with the terms hereof, this “Agreement”), dated as of ______________, 2021 (the “Effective Date”), is made by and among (i) BRC Inc., a Delaware public benefit corporation (including any of its successors or assigns, “PubCo”); (ii) SilverBox Engaged Sponsor LLC, a Delaware limited liability company (the “Sponsor”); (iii) the Engaged Capital Investors (as defined herein); (iv) Evan Hafer (the “Founder”), (v) New Coffee Holdings, LLC, a Delaware limited liability company (the “Sterling Equityholder”), (vi) Mathew Best, (vii) Jarred Taylor, (viii) Richard Ryan, (ix) Tom Davin and (x) the persons and entities listed on Schedule A hereto (collectively, the “Legacy Equityholders”). Each of the persons listed under clauses (i) to (x) may be referred to herein as a “Party” and collectively as the “Parties” and and each of the persons listed under clauses (ii) to (x) may be referred to herein collectively as the “Equityholders.”

RECITALS

WHEREAS, PubCo entered into that certain Business Combination Agreement, dated as of November 2, 2021 (as amended, and as it may be further amended from time to time in accordance with the terms thereof, the “BCA”), by and among PubCo, SilverBox, Merger Sub 1 (as defined in the BCA), Merger Sub 2 (as defined in the BCA), Blocker Corp (as defined in the BCA) and Authentic Brands, LLC, a Delaware limited liability company (the “Operating Company”), in connection with the business combination of PubCo and the Operating Company (the “Business Combination”) and other transactions contemplated therein;

WHEREAS, pursuant to the BCA, at the Closing, among other things (i) the Operating Company became a subsidiary of PubCo and PubCo acquired a certain number of common units in the Operating Company (“Common Units”) and (ii) (A) the Sponsor received a certain number of shares of Class A Common Stock and Class C Common Stock, (B) the holders of Equity Securities of the Operating Company (excluding Blocker Corp) immediately prior to the Effective Time (as defined in the BCA), (1) retained a certain number of Common Units and received the same number of shares of Class B Common Stock, (2) received a certain number of unvested performance-based restricted Common Units (“Restricted Common Units”) and (3) received cash, and (C) Blocker Corp, immediately prior to the Effective Time received (1) a certain number of shares of Class A Common Stock and Class C Common Stock (2) and cash, in each case in accordance with the terms of the BCA;

WHEREAS, upon the consummation of the Business Combination, PubCo and the other persons holding Common Units and Restricted Common Units entered into that certain third amended and restated limited liability company agreenent of the Operating Company dated as of [●], 202[●] (as it may be further amended, supplemented or restated from time to time in accordance with the terms of such agreement, the “LLC Agreement”);

WHEREAS, pursuant to the LLC Agreement and the Certificate of Incorporation, upon satisfaction of the conditions set forth in the LLC Agreement, (i) the Restricted Common Units will vest and become Common Units and (ii) PubCo will issue to the holders of such Common Units an additional number of shares of Class B Common Stock such that each such holder holds the same number of Common Units and shares of Class B Common Stock;

WHEREAS, each of the Equityholders holding Common Units (including any Restricted Common Units that have vested) has the right to exchange such Common Units, along with the cancelation of an equal number of shares of Class B Common Stock, for shares of Class A Common Stock pursuant to the terms and conditions of the LLC Agreement;

WHEREAS, SilverBox, the Sponsor and Engaged Capital, LLC (in its capacity as investment advisor on behalf of investment funds and accounts, “Engaged Capital”) entered into that certain Registration Rights Agreement, dated as of February 25, 2021 (the “Original RRA”);

WHEREAS, in connection with Closing, SilverBox, the Sponsor and Engaged Capital hereto desire to terminate the Original RRA in its entirety and replace it with this Agreement;

NOW, THEREFORE, in consideration of the foregoing and the mutual promises, covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:

Article I
DEFINITIONS

Section 1.1Definitions. As used in this Agreement, the following terms shall have the following meanings:

“Action” means any action, suit, charge, litigation, arbitration, or other proceeding at law or in equity (whether civil, criminal or administrative) by or before any Governmental Entity.

“Adverse Disclosure” means any public disclosure of material non-public information, which disclosure, in the good faith determination of the Board, after consultation with counsel to PubCo, (a) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case of any Prospectus and any preliminary Prospectus, in the light of the circumstances under which they were made) not misleading, (b) would not be required to be made at such time if the Registration Statement were not being filed, and (c) PubCo has a bona fide, material business purpose for not making such information public.

“Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, its capacity as a sole or managing member or otherwise; provided that no Party shall be deemed an Affiliate of PubCo or any of its subsidiaries for purposes of this Agreement.

“Agreement” has the meaning set forth in the Preamble.

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“Automatic Shelf Registration Statement” has the meaning set forth in Rule 405 promulgated by the SEC pursuant to the Securities Act.

“BCA” has the meaning set forth in the Recitals.

“Beneficially Own” has the meaning set forth in Rule 13d-3 promulgated under the Exchange Act; provided, that, a Transfer with respect to any Equity Securities shall, for purposes of this Agreement, means that the Transferor no longer Beneficially Owns such Equity Securities (except, for the avoidance of doubt, for any Transfer to Permitted Transferees or with respect to pledges or encumbrances which do not Transfer economic risk). “Beneficially Owns,” “Beneficially Owned,” and “Beneficial Ownership” shall have correlative meanings.

“Block Trade” means any non-marketed underwritten offering taking the form of a block trade to a financial institution, “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or institutional “accredited” investor (as defined in Rule 501(a) of Regulation D under the Securities Act), bought deal, over-night deal or similar transaction through a broker, sales agent or distribution agent, whether as agent or principal, that does not include “road show” presentations to potential investors requiring substantial marketing effort from management over multiple days, the issuance of a “comfort letter” by PubCo’s auditors, or the issuance of a legal opinion by PubCo’s legal counsel.

“Board” means the board of directors of PubCo.

“Business Combination” has the meaning set forth in the Recitals.

“Business Day” means any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized to close in the State of New York.

“Bylaws” means the bylaws of PubCo, as in effect on the Effective Date, as the same may be amended from time to time.

“Certificate of Incorporation” means the certificate of incorporation of PubCo, as in effect on the Effective Date, as the same may be amended from time to time.

“Class A Common Stock” means, as applicable, (a) the Class A common stock, par value $0.0001 per share, of PubCo, or (b) following any consolidation, merger, reclassification or other similar event involving PubCo, any shares or other securities of PubCo or any other Person that are issued or issuable in consideration for the Class A common stock or into which the Class A common stock is exchanged or converted as a result of such consolidation, merger, reclassification or other similar event.

“Class B Common Stock” means, as applicable, (a) the Class B common stock, par value $0.0001 per share, of PubCo, or (b) following any consolidation, merger, reclassification or other similar event involving PubCo, any shares or other securities of PubCo or any other Person that are issued or issuable in consideration for the Class B common stock or into which the Class B common stock is exchanged or converted as a result of such consolidation, merger, reclassification or other similar event.

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“Class C Common Stock” means, as applicable, (a) the Class C common stock, par value $0.0001 per share, of PubCo, or (b) following any consolidation, merger, reclassification or other similar event involving PubCo, any shares or other securities of PubCo or any other Person that are issued or issuable in consideration for the Class C common stock or into which the Class C common stock is exchanged or converted as a result of such consolidation, merger, reclassification or other similar event.

“Closing” has the meaning given to such term in the BCA.

“Closing Date” has the meaning given to such term in the BCA, which date is [●], 20[●].

“Common Stock” means shares of the Class A Common Stock, Class B Common Stock and Class C Common Stock, including any shares of the Class A Common Stock and Class B Common Stock issuable upon the exercise of any warrant or other right to acquire shares of the Class A Common Stock and Class B Common Stock.

“Common Units” has the meaning set forth in the Recitals.

“Company Units” means the Common Units and the Restricted Common Units.

“Demanding Holders” has the meaning set forth in Section 4.1(c).

“Economic Interests” mean (a) for the Founder, the Sterling Equityholder and the Legacy Equityholders, (i) Company Units and (ii) shares of Class A Common Stock, in each case held by the Founder, the Sterling Equityholder and the Legacy Equityholders, as applicable, or their respective Permitted Transferees or (b) for the Sponsor or the Engaged Capital Investors, shares of Class A Common Stock held by the Sponsor or its Permitted Transferees or the Engaged Capital Investors or their Permitted Transferees, as applicable. For purposes of computing the percentage of Economic Interests in Sections 3.1 and 6.4, in each case, Restricted Common Units and Class C Common Stock shall (x) not be included as held as of the Closing Date or at the applicable time while unvested and (y) be included as being held as of the Closing Date and at the applicable time beginning only if and when they vest, are exchanged for or convert into Company Units or Class A Common Stock, as applicable.

“Effective Date” has the meaning set forth in the Preamble.

“Engaged Capital” has the meaning set forth in the Preamble.

“Engaged Capital Director” has the meaning set forth in Section 3.1(a).

“Engaged Capital Investors” means [●], [●], [●] and [●].

“Equity Securities” means, with respect to any Person, all of the shares of capital stock or equity of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock or equity of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock or equity of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares or equity (or such other interests), restricted stock awards, restricted stock units, equity appreciation rights, phantom equity rights, profit participation and all of the other ownership or profit interests of such Person (including partnership or member interests therein), whether voting or nonvoting.

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“Equityholders” has the meaning set forth in the Preamble.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor thereto, and any rules and regulations promulgated thereunder, all as the same shall be in effect from time to time.

“Family Member” means with respect to any Person, a spouse, lineal descendant (whether natural or adopted) or spouse of a lineal descendant of such Person or any trust created for the benefit of such Person or of which any of the foregoing is a beneficiary.

“FINRA” means the Financial Industry Regulatory Authority, Inc.

“Form S-1 Shelf” has the meaning set forth in Section 4.1(a).

“Form S-3 Shelf” has the meaning set forth in Section 4.1(a).

“Forward Purchase Agreement” means that certain Amended and Restated Forward Purchase Agreement, dated as of November [●], 2021, among SilverBox, Engaged Capital, the Operating Company and the Sponsor pursuant to which the Engaged Capital Investors purchased 10,000,000 SilverBox Class C Shares in a private placement prior to Closing, which SilverBox Class C Shares were exchanged for 10,000,000 shares of Class A Common Stock concurrently with Closing.

“Founder” has the meaning set forth in the Preamble.

“Governmental Entity” means any nation or government, any state, province or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any court, arbitrator (public or private) or other body or administrative, regulatory or quasi-judicial authority, agency, department, board, commission or instrumentality of any federal, state, local or foreign jurisdiction.

“Holder” means any holder of Registrable Securities who is a Party to, or who succeeds to rights under, this Agreement pursuant to Article VI; provided that a Party who does not hold Registrable Securities as of the Effective Date and who acquires Registrable Securities after the Effective Date will not be a Holder until such Party gives PubCo a representation in writing of the number of Registrable Securities it holds.

“Holder Information” has the meaning set forth in Section 4.10(b).

“Initial Form S-1 Shelf” has the meaning set forth in Section 4.1(a).

“Laws” means all laws, acts, statutes, constitutions, treaties, ordinances, codes, rules, regulations, and rulings of a Governmental Entity, including common law. All references to “Laws” shall be deemed to include any amendments thereto, and any successor Law, unless the context otherwise requires.

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“LLC Agreement” has the meaning set forth in the Recitals.

“Lock-Up Period” has the meaning set forth in Section 5.1(a).

“Lock-Up Shares” has the meaning set forth in Section 5.1(a).

“Maximum Number of Securities” has the meaning set forth in Section 4.1(e).

“Minimum Takedown Threshold” has the meaning set forth in Section 4.1(c).

“Misstatement” means an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus, in the light of the circumstances under which they were made, not misleading.

“Necessary Action” means, with respect to any Party and a specified result, all actions (to the extent such actions are not prohibited by applicable Law and within such Party’s control, and in the case of any action that requires a vote or other action on the part of the Board to the extent such action is consistent with fiduciary duties that PubCo’s directors may have in such capacity) necessary to cause such result, including (a) calling special meetings of stockholders, (b) voting or providing a written consent or proxy, if applicable in each case, with respect to shares of Common Stock, (c) causing the adoption of stockholders’ resolutions and amendments to the Organizational Documents, (d) executing agreements and instruments, (e) making, or causing to be made, with Governmental Entities, all filings, registrations or similar actions that are required to achieve such result and (f) nominating certain Persons for election to the Board in connection with the annual or special meeting of stockholders of PubCo.

“Operating Company” has the meaning set forth in the Recitals.

“Organizational Documents” means the Certificate of Incorporation and the Bylaws.

“Original RRA” has the meaning set forth in the Recitals.

“Participation Conditions” has the meaning set forth in Section 4.1(d).

“Party” has the meaning set forth in the Preamble.

“Permitted Transferee” means with respect to any Person, (i) any Family Member of such Person and (ii) any Affiliate of such Person (including any partner, shareholder or member controlling or under common control with such Person and any Affiliated investment fund or vehicle of such Person).

“Person” means any natural person, sole proprietorship, partnership, trust, unincorporated association, corporation, limited liability company, entity or Governmental Entity.

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“Piggyback Registration” has the meaning set forth in Section 4.2(a).

“Potential Takedown Participant” has the meaning set forth in Section 4.1(d).

“Prospectus” means the prospectus included in any Registration Statement, all amendments (including post-effective amendments) and supplements to such prospectus, and all material incorporated by reference in such prospectus.

“PubCo” has the meaning set forth in the Preamble.

“Registrable Securities” means (a) any shares of Class A Common Stock, including Class A Common Stock to be issued pursuant to (i) the LLC Agreement upon exchange of Company Units (along with the cancelation of an equal number of shares of Class B Common Stock) and (ii) the Certificate of Incorporation upon conversion of Class C Common Stock, (b) any Warrants or any shares of Class A Common Stock issued or issuable upon the exercise thereof and (c) any Equity Securities of PubCo or any Subsidiary of PubCo that may be issued or distributed or be issuable with respect to the securities referred to in clauses (a) or (b) by way of conversion, dividend, stock split or other distribution, merger, consolidation, exchange, recapitalization or reclassification or similar transaction, in each case held by a Holder; provided, however, that any such Registrable Securities shall cease to be Registrable Securities to the extent (A) a Registration Statement with respect to the sale of such Registrable Securities has become effective under the Securities Act and such Registrable Securities have been sold, transferred, disposed of or exchanged in accordance with the plan of distribution set forth in such Registration Statement, (B) such Registrable Securities shall have ceased to be outstanding or (C) such Registrable Securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.

“Registration” means a registration, including any related Shelf Takedown, effected by preparing and filing a registration statement, prospectus or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.

“Registration Expenses” means the out-of-pocket expenses of a Registration, including the following:

(a) all registration and filing fees (including fees with respect to filings required to be made with FINRA) and any securities exchange on which the Class A Common Stock is then listed;

(b) fees and expenses of compliance with securities or blue sky Laws (including reasonable fees and disbursements of counsel for the Underwriters in connection with blue sky qualifications of Registrable Securities);

(c) printing, messenger, telephone and delivery expenses;

(d) fees and disbursements of counsel for PubCo;

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(e) reasonable fees and disbursements of all independent registered public accountants of PubCo incurred specifically in connection with such Registration; and

(f) reasonable fees and expenses of one (1) legal counsel selected by the majority-in-interest of the Demanding Holders in an Underwritten Offering in an amount not to exceed $75,000 for each Registration (including if such Underwitten Offering is in the form of a Block Trade).

“Registration Statement” means any registration statement that covers the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.

“Representatives” means, with respect to any Person, any of such Person’s officers, directors, employees, agents, attorneys, accountants, actuaries, consultants, equity financing partners or financial advisors or other Person acting on behalf of such Person.

“Requesting Holder” means any Equityholder requesting piggyback rights pursuant to Section 4.2 of this Agreement with respect to an Underwritten Shelf Takedown.

“Restricted Common Units” has the meaning set forth in the Recitals.

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

“Securities Act” means the Securities Act of 1933, as amended, and any successor thereto, as the same shall be in effect from time to time.

“Shelf” has the meaning set forth in Section 4.1(a).

“Shelf Registration” means a registration of securities pursuant to a Registration Statement filed with the SEC in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect).

“Shelf Takedown” means an Underwritten Shelf Takedown or any proposed transfer or sale using a Registration Statement, including a Piggyback Registration.

“Shelf Takedown Notice” has the meaning set forth in Section 4.1(d).

“Shelf Takedown Request” has the meaning set forth in Section 4.1(c).

“SilverBox” means SilverBox Engaged Merger Corp I, a Delaware corporation.

“Special Holder” means each of the Founder, the Sponsor, the Engaged Capital Investors, the Sterling Equityholder, Mathew Best, Jarred Taylor, Richard Ryan and Tom Davin, at such times as such Party is a Holder and any Permitted Transferee of the foregoing (except as set forth in Section 4.16 hereof).

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“Sponsor” has the meaning set forth in the Preamble.

“Sterling Equityholder” means New Coffee Holdings, LLC, a Delaware limited liability company.¹

“Subsequent Shelf Registration” has the meaning set forth in Section 4.1(b).

“Subsidiaries” means, of any Person, any corporation, association, partnership, limited liability company, joint venture or other business entity of which more than fifty percent (50%) of the voting power or equity is owned or controlled directly or indirectly by such Person, or one (1) or more of the Subsidiaries of such Person, or a combination thereof.

“Transfer” means, when used as a noun, any voluntary or involuntary, direct or indirect, transfer, sale, pledge, hedge, encumbrance, or hypothecation or other disposition, contract or legally binding agreement to undertake any of the foregoing, by the Transferor (whether by operation of law or otherwise) and, when used as a verb, the Transferor voluntarily or involuntarily, directly or indirectly, transfers, sells, pledges, hedges, encumbers or hypothecates or otherwise disposes of (whether by operation of law or otherwise), contracts or agrees (in a legally binding manner) to do any of the foregoing, including, in each case, (a) the establishment or increase of a put equivalent position or liquidation with respect to, or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any security or (b) entry into any swap or other arrangement that transfers to another Person, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise. The terms “Transferee,” “Transferor,” “Transferred,” and other forms of the word “Transfer” shall have the correlative meanings.

“Underwriter” means any investment banker(s) and manager(s) appointed to administer the offering of any Registrable Securities as principal in an Underwritten Offering.

“Underwritten Offering” means a Registration in which securities of PubCo are sold to an Underwriter for distribution to the public.

“Underwritten Shelf Takedown” has the meaning set forth in Section 4.1(f).

“Voting Party” means each of the Sponsor and the Engaged Capital Investors.

“Voting Securities” means Equity Securities of PubCo which are entitled to vote generally in the election of directors to the Board.

“Warrants” means the outstanding warrants of PubCo, each exercisable for one share of Class A Common Stock, issued to the Sponsor pursuant to that certain private placement warrants purchase agreement, dated February 25, 2021, by and among the Sponsor and SilverBox, for a purchase price of $11.50 per warrant.

¹ NTD: Definition to be updated prior to closing in the event of dissolution of New Coffee Holdings, LLC.

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“Well-Known Seasoned Issuer” has the meaning set forth in Rule 405 promulgated by the SEC pursuant to the Securities Act.

“Withdrawal Notice” has the meaning set forth in Section 4.1(f).

Section 1.2Interpretive Provisions. For all purposes of this Agreement, except as otherwise provided in this Agreement or unless the context otherwise requires:

(a)the meanings of defined terms are applicable to the singular as well as the plural forms of such terms.

(b)the words “hereof”, “herein”, “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement.

(c)references in this Agreement to any Law shall be deemed also to refer to such Law, and all rules and regulations promulgated thereunder.

(d)whenever the words “include”, “includes” or “including” are used in this Agreement, they shall mean “without limitation.”

(e)the captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.

(f)pronouns of any gender or neuter or, as appropriate, the other pronoun forms.

Article II
REPRESENTATIONS AND WARRANTIES

Each of the Parties to this Agreement hereby represents and warrants to each other Party to this Agreement that as of the date such Party executes this Agreement:

Section 2.1Existence; Authority; Enforceability. Such Party has the power and authority to enter into this Agreement and to carry out its obligations hereunder. Such Party who is not an individual is duly organized and validly existing under the laws of its respective jurisdiction of organization, and the execution of this Agreement, and the consummation of the transactions contemplated herein, have been authorized by all necessary action, and no other act or proceeding on its part is necessary to authorize the execution of this Agreement or the consummation of any of the transactions contemplated hereby. This Agreement has been duly executed by it and constitutes its legal, valid and binding obligations, enforceable against it in accordance with its terms.

Section 2.2Absence of Conflicts. The execution and delivery by such Party of this Agreement and the performance of its obligations hereunder does not and will not (a) conflict with, or result in the breach of any provision of the constitutive documents of such Party who is not an individual; (b) result in any violation, breach, conflict, default or event of default (or an event which with notice, lapse of time, or both, would constitute a default or event of default), or give rise to any right of acceleration or termination or any additional payment obligation, under the terms of any contract, agreement or permit to which such Party is a Party or by which such Party’s assets or operations are bound or affected; or (c) violate any law applicable to such Party.

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Section 2.3Consents. Other than any consents which have already been obtained, no consent, waiver, approval, authorization, exemption, registration, license or declaration is required to be made or obtained by such Party in connection with (a) the execution, delivery or performance of this Agreement or (b) the consummation of any of the transactions contemplated herein.

Article III
GOVERNANCE

Section 3.1Board of Directors.

(a)Composition of the Board. Each of the Equityholders severally and not jointly, agrees with PubCo to take all Necessary Action to cause (x) the Board to be comprised of seven (7) directors initially and (y) those individuals to be nominated in accordance with this Article III, initially (i) two (2) of whom have been or will be nominated by Engaged Capital (acting on behalf of the Engaged Capital Investors), initially Glenn Welling and [●], one of whom shall meet the independence requirements of the Exchange Act and the applicable stock exchange regulations, and thereafter designated pursuant to Section 3.1(b) or Section 3.1(e) of this Agreement (each, an “Engaged Capital Director”), (ii) two (2) of whom have been or will be nominated by the Founder, initially [●] and [●], both of whom shall meet the independence requirements of the Exchange Act and the applicable stock exchange regulations and thereafter designated pursuant to Section 3.1(c) or Section 3.1(e) of this Agreement (each, a “Founder Director”), which Founder Directors shall meet the independence requirements under the Exchange Act and applicable stock exchange regulations, and (iii) Evan Hafer, [●], [●], [●] and [●].The foregoing directors shall be divided into three classes of directors, with each class serving for staggered three year-terms as follows:

(i)the Class I directors shall include [●], initially, and up to one (1) Engaged Capital Director, initially [●];

(ii)the Class II directors shall include [●], initially, and up to one (1) Founder Director, initially [●]; and

(iii)the Class III directors shall include [●], initially, up to one (1) Engaged Capital Director, initially Glenn Welling, and up to one (1) Founder Director, initially [●].

Any vacancies existing on the Board as of the date hereof shall be filled in accordance with Section 3.1(e). The initial term of the Class I directors shall expire immediately following PubCo’s 2023 annual meeting of stockholders at which directors are elected. The initial term of the Class II directors shall expire immediately following PubCo’s 2024 annual meeting of stockholders at which directors are elected. The initial term of the Class III directors shall expire immediately following PubCo’s 2025 annual meeting at which directors are elected.

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(b) Engaged Capital Investors Representation. For so long as the Engaged Capital Investors and their Permitted Transferees Beneficially Own Economic Interests representing the percentage of the Economic Interests held by the Engaged Capital Investors immediately after the Closing shown below (or the percentage of Voting Securities shown below, if relevant), PubCo shall take all Necessary Action to include in the slate of nominees recommended by the Board and/or the applicable committee for election as directors at each applicable annual or special meeting of stockholders at which directors are to be elected, subject to Section 3.1(f) below, that number of individuals designated by Engaged Capital (acting on behalf of the Engaged Capital Investors) that, if elected, will result in the Engaged Capital Investors having the number of directors serving on the Board that is shown in the column labeled “Number of Engaged Capital Directors” below; provided, that after the number of Engaged Capital Directors is reduced because the percentage Beneficially Owned of such Economic Interests is reduced, the Engaged Capital Investors and their Permitted Transferees cannot subsequently increase the number of Engaged Capital Directors entitled to be designated as a result of their acquisition of Beneficial Ownership of additional Economic Interests (in PubCo and the Operating Company, without duplication); provided, further, that, at any time, at least one Engaged Capital Director shall be a veteran of the U.S. military and at least one Engaged Capital Director shall meet the independence requirements of the Exchange Act and the applicable stock exchange regulations.

Economic Interests Beneficially Owned by the Engaged Capital Investors (and their Permitted Transferees) as a Percentage of the Economic Interests Held by the Engaged Capital Investors immediately after the Closing	Number of Engaged Capital Directors
50% or greater	2
33% or greater, but less than 50%	1
Less than 33%	0

(c)Founder Representation. For so long as the Founder and its Permitted Transferees Beneficially Own Economic Interests representing at least the percentage, shown below, of the Economic Interests Beneficially Owned by the Founder immediately after the Closing shown below, PubCo shall take all Necessary Action to include in the slate of nominees recommended by the Board and/or the applicable committee for election as directors at each applicable annual or special meeting of stockholders at which directors are to be elected, subject to Section 3.1(f) below, that number of individuals designated by the Founder that, if elected, will result in the Founder having the number of directors serving on the Board that is shown below; provided, that after the number of Founder Directors is reduced because the percentage Beneficially Owned of such Economic Interests is reduced, the Founder and its Permitted Transferees cannot subsequently increase the number of Founder Directors entitled to be designated as a result of its acquisition of Beneficial Ownership of additional Economic Interests (in PubCo and the Operating Company, without duplication); provided, further, that, at any time, the Founder Directors (except the Founder) shall meet the independence requirements of the Exchange Act and the applicable stock exchange regulations.

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Economic Interests Beneficially Owned by the Founder (and its Permitted Transferees) as a Percentage of the Economic Interests Beneficially Owned by the Founder immediately after the Closing	Number of Founder Directors
35% or greater	2 plus the Founder
25% or greater, but less than 35%	2 (including the Founder)
15% or greater, but less than 25%	1 (including the Founder)
Less than 15%	0

(d)Decrease in Directors. Upon any decrease in the number of directors that the Engaged Capital Investors or the Founder, as applicable, is entitled to designate for nomination to the Board pursuant to Section 3.1(b), Section 3.1(c), Engaged Capital (acting on behalf of the Engaged Capital Investors) or the Founder, as applicable, shall take all Necessary Action to cause the appropriate number of Engaged Capital Directors or Founder Directors, as applicable, to offer to tender their resignation promptly, and no later than sixty (60) days prior to the expected date of PubCo’s next annual meeting of stockholders, provided, however, that the Board may, in its sole discretion, elect not to accept any such offer of resignation from an Engaged Capital Director or Founder Director, as applicable, and require that such director withdraw such offer of resignation in order to avoid the resulting vacancy. In furtherance and without limitation of the foregoing, the Nominating and Corporate Governance Committee may, in its sole discretion and with the express written consent of such individual, recommend for nomination an Engaged Capital Director or Founder Director that has tendered his or her resignation pursuant to this Section 3.1(d).

(e)Removal; Vacancies. Except as provided in Section 3.1(d), and subject to the Organizational Documents, Engaged Capital (acting on behalf of the Engaged Capital Investors) and the Founder, as applicable, shall have the exclusive right to (i) remove their nominees from the Board, and PubCo shall take all Necessary Action to cause the removal of any such nominee at the request of the applicable Party and (ii) designate directors for election to the Board to fill vacancies existing on the date hereof or created by reason of death, incapacity, removal or resignation of its nominees to the Board, and PubCo, the Sponsor, the Engaged Capital Investors, the Founder and the Legacy Equityholders shall take all Necessary Action to cause any such vacancies created pursuant to clause (i) or (ii) above to be filled by replacement directors designated by the applicable Party as promptly as practicable after such designation (and in any event prior to the next meeting or action of the Board or applicable committee). Notwithstanding anything to the contrary contained in this Section 3.1(e), no Party shall have the right to designate a replacement director, and PubCo shall not be required to take any action to cause any vacancy to be filled by any such designee, to the extent that election or appointment of such designee to the Board would result in a number of directors nominated by such Party in excess of the number of directors that such Party is then entitled to nominate for membership on the Board pursuant to this Agreement.

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(f)Nominee Background. Any nominee designated by Engaged Capital (on behalf of the Engaged Capital Investors) or the Founder pursuant to Section 3.1(b), Section 3.1(c) and Section 3.1(e), as applicable, will be subject to PubCo’s customary due diligence process, including its review of a completed questionnaire and a background check. Based on the foregoing, PubCo may reasonably object to any nominee (i) provided it does so in good faith and (ii) solely to the extent such objection is based upon any of the following: (1) such nominee was convicted in a criminal proceeding or is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses); (2) such nominee was the subject of any order, judgment, or decree not subsequently reversed, suspended or vacated of any court of competent jurisdiction, permanently or temporarily enjoining such proposed director from, or otherwise limiting, the following activities: (A) engaging in any type of business practice, or (B) engaging in any activity in connection with the purchase or sale of any security or in connection with any violation of federal or state securities laws; (3) such nominee was the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any federal or state authority barring, suspending or otherwise limiting for more than 60 days the right of such person to engage in any activity described in clause (2)(B), or to be associated with persons engaged in such activity; (4) such nominee was found by a court of competent jurisdiction in a civil action or by the SEC to have violated any federal or state securities law, and the judgment in such civil action or finding by the SEC has not been subsequently reversed, suspended or vacated; or (5) such nominee was the subject of, or a party to any federal or state judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to a violation of any federal or state securities laws or regulations. In the event the Board reasonably finds the nominee to be unsuitable based upon one or more of the foregoing clauses (1) through (5) and reasonably objects to the identified director, Engaged Capital (acting on behalf of the Engaged Capital Investors) or the Founder, as applicable, shall be entitled to propose a different nominee to the Board within thirty (30) days of PubCo’s notice to such person of its objection to the nominee and such replacement nominee shall be subject to the review process outlined above.

(g)Committees. In accordance with PubCo’s Organizational Documents, (i) the Board shall establish and maintain committees of the Board for (x) Audit, (y) Compensation and (z) Nominating and Corporate Governance, and (ii) the Board may from time to time by resolution establish and maintain other committees of the Board. For so long as the Founder is on the Board, the Founder shall chair the Nominating and Corporate Governance Committee, subject to applicable Laws and applicable stock exchange regulations, and subject to requisite independence requirements applicable to such committee.

(h)Reimbursement of Expenses. PubCo shall reimburse the directors for all reasonable out-of-pocket expenses incurred in connection with their attendance at meetings of the Board and any committees thereof, including travel, lodging and meal expenses.

(i)Indemnification. For so long as the Founder, any Engaged Capital Director or Founder Director serves as a director of PubCo, (i) PubCo shall provide the Founder, such Engaged Capital Director or Founder Director with the same expense reimbursement, benefits, indemnity, exculpation and other arrangements provided to the other directors of PubCo and (ii) PubCo shall not amend, alter or repeal any right to indemnification or exculpation covering or benefiting the Founder, any Engaged Capital Director or Founder Director nominated pursuant to this Agreement as and to the extent consistent with applicable Law, the last sentence of Section 10.1(G) of the Certificate of Incorporation, Article VIII of the Certificate of Incorporation, Article IV of the Bylaws and any indemnification agreements with directors (whether such right is contained in the Organizational Documents or another document) (except to the extent such amendment or alteration permits PubCo to provide broader indemnification or exculpation rights on a retroactive basis than permitted prior thereto).

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Section 3.2            Voting Agreement.

(a)Engaged Capital Directors and Founder Directors. From the Effective Date until, and including, [●], 2027² (such period, the “Voting Period”), each of the Equityholders, severally and not jointly, agrees with PubCo to cause all Equity Securities such Person has the right to vote as of the applicable record date, to be present in person or by proxy for quorum purposes and to be voted at any meeting of stockholders or at any adjournments or postponements thereof, and to consent in connection with any action by written consent in lieu of a meeting, in favor of each director nominated in accordance with Section 3.1(a), Section 3.1(b) and Section 3.1(c), and recommended by the Board for election at any such meeting or through any such written consent. Each of the Equityholders, severally and not jointly, agree with PubCo not to take action to remove any director (other than a director nominated by such person) from office unless such removal is for cause or if the applicable Party nominating such director is no longer entitled to nominate such director pursuant to Section 3.1.

(b)Agreement to Vote on Election of Directors. During the Voting Period and to the extent he or she is entitled under PubCo’s Organizational Documents to vote on such matter, each of the Voting Parties, severally and not jointly, agrees to vote all securities of PubCo that may vote in the election of PubCo’s directors on the Board that such Voting Party owns or controls from time to time (hereinafter referred to as the “Voting Shares”) in accordance with the provisions of Sections 3.2(c) and (d), whether at an annual or special meeting of stockholders or any class or series of stockholders or by written consent.

(c)Election of Board of Directors. During the Voting Period, and subject to PubCo’s Organizational Documents, each Voting Party agrees, severally and not jointly, to vote (or cause to be voted), or to act by written consent in respect of, all Voting Shares in the same manner (“for,” “against,” “withheld,” “abstain” or otherwise) (i) as directed by the Founder or (ii) solely in the event that no such direction is provided by the Founder after inquiry by such Voting Party, as recommended by the Board, in each case with respect to:

(i)the election to the Board at any meeting of stockholders at which directors are to be elected (other than the Engaged Capital Directors subject to Section 3.1(b));

(ii)the appointment to fill any vacancy created by the failure of any director to complete a term on the Board (other than the Engaged Capital Directors subject to Section 3.1(b)); and

(iii)any removal of directors from the Board (other than the Engaged Capital Directors subject to Section 3.1(e));

in each case, so long as the applicable nominee subject to election or appointment satisfies PubCo’s normal procedures regarding suitability of director nominees.

(d)Other Obligations. The obligations of the Voting Party pursuant to this Section 3.2(c) shall include any stockholder vote to amend the Organizational Documents of PubCo as required to effect the intent of Section 3.2(c). Each of the Voting Parties and PubCo agree not to take any actions that would materially and adversely affect the provisions of this Section 3.2(c) and the intention of the parties with respect to the composition of the Board as stated herein.

² NTD: To be the 5th anniversary of the Effective Date.

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(e)Successors in Interest of the Voting Parties and PubCo. The provisions of this Section 3.2 shall be binding upon the successors in interest of any Voting Party with respect to any of the Voting Party’s Voting Shares or any voting rights therein, unless (i) such Voting Shares are sold in the public markets or in a public offering (whether or not such offering is underwritten) (a “Sale”) or (ii) such Voting Shares are transferred as a bona fide charitable gift to an unrelated third party non-government or non-profit organizations (a “Gift”). Each Voting Party shall not, and PubCo shall not, permit the transfer of any Voting Party’s Voting Shares (except for Sales and Gifts), unless and until the person to whom such securities are to be transferred shall have executed a written agreement pursuant to which such person becomes a party to this Agreement with respect to Section 3.2 and agrees to be bound by all the provisions of Section 3.2 as if such person was a Voting Party hereunder. For the avoidance of doubt, (i) no such additional written agreement shall be required if Voting Shares that are transferred remain under the control of the relevant Voting Party, and (ii) the provisions of this Section 3.2(e) shall not be construed as restricting or otherwise prohibiting the Transfer of a Voting Party’s Voting Shares in the open market.

(f)Irrevocable Proxy and Power of Attorney. The Voting Party hereby grants a power of attorney to each Chief Executive Officer of PubCo, the Chief Financial Officer of PubCo, and the Secretary of PubCo, or any of them from time to time, or their designees, as the Voting Party’s true and lawful proxy and attorney, with the power to act alone and with full power of substitution (each a “Proxy Holder”), to vote (or consent pursuant to an action by written consent of the stockholders, if applicable) with respect to the matters set forth under Section 3.2(c) hereof, and hereby authorizes each Proxy Holder to represent and vote, if and only if the Voting Party (i) fails to vote, or (ii) attempts to vote (whether by proxy, in person or by written consent), in a manner which is inconsistent with the terms of this Section 3.2(c), all of such party’s Voting Shares in favor of election of persons as members of the Board determined pursuant to and in accordance with the terms and provisions of this Section 3.2(c) or to take any action necessary to effect this Section 3.2(c), respectively. Each of the proxy and power of attorney granted pursuant to the immediately preceding sentence is given in consideration of the agreements and covenants of PubCo and the parties in connection with the transactions contemplated by this Agreement and, as such, each is coupled with an interest and shall be irrevocable until the expiration of the Voting Period. The Voting Party hereto hereby revokes any and all previous proxies or powers of attorney with respect to the Voting Shares and shall not hereafter, until the expiration of the Voting Period, purport to grant any other proxy or power of attorney with respect to any of the Voting Shares, deposit any of the Voting Shares into a voting trust or enter into any agreement (other than this Agreement), arrangement or understanding with any Person, directly or indirectly, to vote, grant any proxy or give instructions with respect to the voting of any of the Voting Shares, in each case, with respect to any of the matters set forth herein.

(g)Manner of Voting. The voting of Voting Shares pursuant to this Section 3.2 may be effected in person, by proxy, by written consent or in any other manner permitted by applicable law.

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Section 3.3            Supermajority Board Approval. For so long as the Engaged Capital Investors are entitled to director representation pursuant to Section 3.1 hereof, prior to taking any of the following actions, PubCo shall be required to obtain the approval by an affirmative vote or consent of two-thirds of the directors then in office:

(a)approve a transaction resulting in a Change of Control (as defined in the LLC Agreement);

(b)alter, amend, repeal or rescind, in whole or in part, any provision of the Certificate of Incorporation or the Bylaws of PubCo;

(c)nominate, elect, remove or otherwise change the executive officers (within the meaning of Rule 3b-7 under the Exchange Act) and Chief Executive Officer of PubCo;

(d)pursue business activities of a type that are inconsistent with the purpose of PubCo and its subsidiaries taken as a whole as set forth in Article III of the Certificate of Incorporation and deviate materially from the type of business activities engaged in by PubCo and its subsidiaries immediately prior to the date on which approval by an affirmative vote of two-thirds of the directors then in office is obtained for any action requiring approval pursuant to this Section 3.3 (it being understood the merely expanding or contracting the scope of activities engaged in by PubCo and its subsidiaries shall not trigger application of this Section 3.3);

(e)decrease the aggregate amount expended by PubCo and its subsidiaries in respect of charitable activities (whether or not deductible for tax purposes) in any fiscal year of PubCo by more than 10% of the aggregate amount expended by PubCo and its subsidiaries in respect of charitable activities in the immediately preceding fiscal year; or

(f)change in any material respect the overall look and feel of the marketing materials and imagery used to market and promote PubCo and its products (it being understood that changes of individual advertisements, marketing images, promotional campaigns, product labeling and packaging and website content that occurs from time to time in the ordinary course and is consistent with the overall look and feel of the marketing materials and imagery used to market and promote PubCo and its products prior to the date on which approval by an affirmative vote of two-thirds of the directors then in office is obtained for any action requiring approval pursuant to this Section 3.3 shall not trigger application of this Section 3.3).

Article IV
REGISTRATION RIGHTS

Section 4.1Shelf Registration.

(a)Filing. PubCo shall file, within thirty (30) Business Days of the Closing Date, a Registration Statement for a Shelf Registration on Form S-1 (the “Form S-1 Shelf” and, together with any Registration Statement for a Shelf Registration on Form S-3 (the “Form S-3 Shelf”) and any Subsequent Shelf Registration, the “Shelf”) covering the resale of all Registrable Securities (including, for the avoidance of doubt, Registrable Securities of any distributees or contributees pursuant to Section 4.16 hereof). PubCo shall use its commercially reasonable efforts to cause the Form S-1 Shelf to become effective under the Securities Act as soon as practicable after the initial filing thereof. The Form S-1 Shelf shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination of methods legally available to, and requested by, any Special Holder. PubCo shall maintain the Form S-1 Shelf in accordance with the terms hereof, and shall prepare and file with the SEC such amendments, including post-effective amendments, and supplements as may be necessary to keep such Form S-1 Shelf continuously effective, available for use and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. PubCo shall use its commercially reasonable efforts to convert the Form S-1 Shelf (and any Subsequent Shelf Registration) to a Form S-3 Shelf as soon as practicable after PubCo is eligible to use Form S-3.

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(b)Subsequent Shelf Registration. If any Shelf ceases to be effective under the Securities Act for any reason at any time while there are any Registrable Securities, PubCo shall use its commercially reasonable efforts to as promptly as is reasonably practicable cause such Shelf to again become effective under the Securities Act (including obtaining the prompt withdrawal of any order suspending the effectiveness of such Shelf), and shall use its commercially reasonable efforts to as promptly as is reasonably practicable amend such Shelf in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf or file an additional Registration Statement as a Shelf Registration (a “Subsequent Shelf Registration”) registering the resale of all outstanding Registrable Securities from time to time, and pursuant to any method or combination of methods legally available to, and requested by, any Special Holder. If a Subsequent Shelf Registration is filed, PubCo shall use its commercially reasonable efforts to (i) cause such Subsequent Shelf Registration to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof (it being agreed that the Subsequent Shelf Registration shall be an Automatic Shelf Registration Statement if PubCo is then a Well-Known Seasoned Issuer at the time of filing) and (ii) keep such Subsequent Shelf Registration continuously effective, available for use and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. Any such Subsequent Shelf Registration shall be on Form S-3 to the extent that PubCo is eligible to use such form. Otherwise, such Subsequent Shelf Registration shall be on another appropriate form. In the event that any Holder holds Registrable Securities that are not registered for resale on a delayed or continuous basis, PubCo, upon request of a Holder, shall promptly use its commercially reasonable efforts to cause the resale of such Registrable Securities to be covered by either, at PubCo’s option, the Shelf (including by means of a post-effective amendment) or a Subsequent Shelf Registration and cause the same to become effective as soon as practicable after such filing and such Shelf or Subsequent Shelf Registration shall be subject to the terms hereof.

(c)Requests for Underwritten Shelf Takedowns. At any time and from time to time after the relevant Shelf has been declared effective by the SEC, the Special Holders may request (each, a “Shelf Takedown Request”) to sell all or any portion of their Registrable Securities in an underwritten offering that is registered pursuant to the Shelf (each, an “Underwritten Shelf Takedown”); provided that PubCo shall only be obligated to effect an Underwritten Shelf Takedown if such offering shall include securities with a total offering price (exclusive of piggyback securities and before deduction of underwriting discounts) reasonably expected to exceed, in the aggregate, $30.0 million (the “Minimum Takedown Threshold”). All requests for Underwritten Shelf Takedowns shall be made by giving written notice to PubCo, which shall specify the approximate number of Registrable Securities proposed to be sold in the Underwritten Shelf Takedown and the expected price range of such Underwritten Shelf Takedown, provided that each Holder agrees that the fact that such a notice has been delivered shall constitute Confidential Information. The Special Holders that requested such Underwritten Shelf Takedown (the “Demanding Holders”) shall have the right to select the Underwriters for such offering (which shall consist of one or more reputable nationally or regionally recognized investment banks), and to agree to the pricing and other terms of such offering; provided that such selection shall be subject to the consent of PubCo, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary herein, in no event shall any Special Holder or any Transferee thereof request an Underwritten Shelf Takedown during the Lock-Up Period. There shall be no limit to the number of Underwritten Shelf Takedowns that may be requested by any Special Holder, subject to the proviso in the first sentence of this Section 4.1(c) and provided, further, that, PubCo shall not be obligated to effect more than one (1) Underwritten Shelf Takedown in any six-month period.

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(d)Shelf Takedown Participation. Except in the case of a requested Underwritten Shelf Takedown in the form of a Block Trade, promptly upon receipt of a Shelf Takedown Request (but in no event more than two (2) Business Days thereafter) for any Underwritten Shelf Takedown, PubCo shall deliver a notice (a “Shelf Takedown Notice”) to each other Special Holder with Registrable Securities covered by the Shelf (each, a “Potential Takedown Participant”). The Shelf Takedown Notice shall offer each such Potential Takedown Participant the opportunity to include in any Underwritten Shelf Takedown such number of Registrable Securities as each such Potential Takedown Participant may request in writing (such requesting Potential Takedown Participant, a “Takedown Participant”). PubCo shall include in the Underwritten Shelf Takedown all such Registrable Securities with respect to which PubCo has received written requests for inclusion therein within three (3) Business Days after the date that the Shelf Takedown Notice has been delivered. Any Potential Takedown Participant’s request to participate in an Underwritten Shelf Takedown shall be binding on the Potential Takedown Participant; provided that each such Potential Takedown Participant that elects to participate may condition its participation on the Underwritten Shelf Takedown being completed within ten (10) Business Days of its acceptance at a price per share (after giving effect to any underwriters’ discounts or commissions) to such Potential Takedown Participant of not less than a percentage of the closing price for the shares on their principal trading market on the Business Day immediately prior to such Potential Takedown Participant’s election to participate, as specified in such Potential Takedown Participant’s request to participate in such Underwritten Shelf Takedown (the “Participation Conditions”). Notwithstanding the delivery of any Shelf Takedown Notice, but subject to the Participation Conditions (to the extent applicable), all determinations as to whether to complete any Underwritten Shelf Takedown and as to the timing, manner, price and other terms of any Underwritten Shelf Takedown contemplated by this Section 4.1(d) shall be determined by the Demanding Holder.

(e)Reduction of Underwritten Shelf Takedowns. If the managing Underwriter or Underwriters in an Underwritten Shelf Takedown, in good faith, advise PubCo, the Demanding Holders and the Takedown Participants (if any) in writing that the dollar amount or number of Registrable Securities that the Demanding Holders and the Takedown Participants (if any) desire to sell, taken together with all other shares of Common Stock or other Equity Securities that PubCo desires to sell and all other Common Stock or other Equity Securities, if any, that have been requested to be sold in such Underwritten Offering pursuant to separate written contractual piggyback registration rights held by any other stockholders, exceeds the maximum dollar amount or maximum number of Equity Securities that can be sold in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then PubCo shall include in such Underwritten Offering, as follows: at all times (i) first, the Registrable Securities of the Demanding Holders and the Takedown Participants (if any) (pro rata based on the respective number of Registrable Securities that each Demanding Holder and Takedown Participant (if any) has requested be included in such Underwritten Shelf Takedown) that can be sold without exceeding the Maximum Number of Securities; (ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), the Common Stock or other Equity Securities that PubCo desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the Common Stock or other Equity Securities of other Persons that PubCo is obligated to include in such Underwritten Offering pursuant to separate written contractual arrangements with such Persons and that can be sold without exceeding the Maximum Number of Securities.

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(f)Withdrawal. Any of the Demanding Holders initiating an Underwritten Shelf Takedown shall have the right to withdraw from such Underwritten Shelf Takedown for any or no reason whatsoever upon written notification (a “Withdrawal Notice”) to PubCo and the Underwriter or Underwriters (if any) of such Demanding Holder’s intention to withdraw from such Underwritten Shelf Takedown, prior to the public announcement of the Underwritten Shelf Takedown by PubCo; provided that a Special Holder may elect to have PubCo continue an Underwritten Shelf Takedown if the Minimum Takedown Threshold would still be satisfied or if the Underwritten Shelf Takedown would be made with respect to all of the Registrable Securities of such Special Holder. Following the receipt of any Withdrawal Notice, PubCo shall promptly forward such Withdrawal Notice to any other Special Holders that had elected to participate in such Underwritten Shelf Takedown. Notwithstanding anything to the contrary contained herein, PubCo shall be responsible for the Registration Expenses incurred in connection with the Underwritten Shelf Takedown prior to delivery of a Withdrawal Notice under this Section 4.1(f).

(g)Long-Form Demands. Upon the expiration of the applicable Lock-Up Period and during such times as no Shelf is effective, each Special Holder may demand that PubCo file a Registration Statement on Form S-1 for the purpose of conducting an Underwritten Offering of any or all of such Special Holder’s Registrable Securities. PubCo shall file such Registration Statement within thirty (30) days of receipt of such demand and use its commercially reasonable efforts to cause the same to be declared effective within sixty (60) days of filing. The provisions of Sections 4.1(c)-(f) shall apply to this Section 4.1(g) as if a demand under this Section 4.1(g) were an Underwritten Shelf Takedown, provided that in order to withdraw a demand under this Section 4.1(g), such withdrawal must be received by PubCo prior to PubCo having publicly filed a Registration Statement pursuant to this Section 4.1(g).

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(h)SEC Cutback. Notwithstanding the registration obligations set forth in this Section 4.1, in the event that the SEC informs PubCo that all of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, PubCo agrees to promptly (i) inform each of the Holders thereof and use its commercially reasonable efforts to file amendments to the Shelf Registration Statement as required by the SEC and/or (ii) withdraw the Shelf Registration Statement and file a new registration statement (a “New Registration Statement”) on Form S-3, or if Form S-3 is not then available to PubCp for such registration statement, on such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, PubCo shall use its commercially reasonable efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly available written or oral guidance, comments, requirements or requests of the SEC staff (the “SEC Guidance”). Notwithstanding any other provision of this Agreement, if any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that PubCo used diligent efforts to advocate with the SEC for the registration of all or a greater number of Registrable Securities), unless otherwise directed in writing by a Holder as to further limit its Registrable Securities to be included on the Registration Statement, the number of Registrable Securities to be registered on such Registration Statement will be reduced on a pro rata basis based on the total number of Registrable Securities held by the Holders, subject to a determination by the SEC that certain Holders must be reduced first based on the number of Registrable Securities held by such Holders. In the event PubCo amends the Shelf Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, PubCo will use its commercially reasonable efforts to file with the SEC, as promptly as allowed by the SEC or SEC Guidance provided to PubCo or to registrants of securities in general, one or more registration statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Shelf Registration Statement, as amended, or the New Registration Statement.

(i)Block Trades. If PubCo shall receive a request from a Special Holder of Registrable Securities with an estimated market value of at least $15,000,000 that PubCo effect the sale of all or any portion of such Registrable Securities in an Underwritten Shelf Takedown in the form of a Block Trade, then PubCo shall, as expeditiously as possible, cooperate and effect the offering in such Block Trade of the Registrable Securities for which such requesting Special Holder has requested such offering, without giving any effect to any required notice periods or delivery of notices to any other Holders.

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Section 4.2Piggyback Registration.

(a)Piggyback Rights. If PubCo proposes to conduct a registered offering of, or if PubCo proposes to file a Registration Statement under the Securities Act with respect to an offering of Equity Securities of PubCo, or securities or other obligations exercisable or exchangeable for, or convertible into Equity Securities of PubCo, for its own account or for the account of stockholders of PubCo, other than a Registration Statement (or any registered offering with respect thereto) (i) filed in connection with any employee stock option or other benefit plan, (ii) for an exchange offer or offering of securities solely to PubCo’s existing stockholders, (iii) for an offering of debt that is convertible into equity securities of PubCo, (iv) for a dividend reinvestment plan or (v) for any Underwritten Shelf Takedown, then PubCo shall give written notice of such proposed offering to all Special Holders as soon as practicable but not less than three (3) Business Days before the anticipated filing date of such Registration Statement or, in the case of an underwritten offering pursuant to a Shelf Registration, the launch date of such offering, which notice shall (A) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any and if known, in such offering, and (B) offer to all of the Special Holders the opportunity to include in such registered offering such number of Registrable Securities as such Special Holders may request in writing within five (5) Business Days after receipt of such written notice (such registered offering, a “Piggyback Registration”); provided that each Special Holder agrees with PubCo that the fact that such a notice has been delivered shall constitute Confidential Information subject to Section 3.3. PubCo shall cause such Registrable Securities to be included in such Piggyback Registration and shall use its reasonable best efforts to cause the managing Underwriter or Underwriters of a proposed Underwritten Offering to permit the Registrable Securities requested by the Special Holders pursuant to this Section 4.2(a) to be included in a Piggyback Registration on the same terms and conditions as any similar securities of PubCo included in such registered offering and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. The inclusion of any Special Holder’s Registrable Securities in a Piggyback Registration shall be subject to such Special Holder’s agreement to abide by the terms of Section 4.6 below.

(b)Reduction of Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten Offering that is to be a Piggyback Registration (other than an Underwritten Shelf Takedown), in good faith, advises PubCo and the Special Holders, in each case, participating in the Piggyback Registration in writing that the dollar amount or number of shares of Common Stock or other Equity Securities that PubCo desires to sell, taken together with (i) the Common Stock or other Equity Securities, if any, as to which Registration or a registered offering has been demanded pursuant to separate written contractual arrangements with Persons other than the Special Holders hereunder and (ii) the Common Stock or other Equity Securities, if any, as to which registration has been requested pursuant to this Section 4.2, exceeds the Maximum Number of Securities, then:

(i)If the Registration is initiated and undertaken for PubCo’s account, PubCo shall include in any such Registration (A) first, the Common Stock or other Equity Securities that PubCo desires to sell, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Special Holders exercising their rights to register their Registrable Securities pursuant to Section 4.2(a) (pro rata based on the respective number of Registrable Securities that each Special Holder has requested be included in such Registration), which can be sold without exceeding the Maximum Number of Securities; and (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the Common Stock or other Equity Securities, if any, as to which Registration has been requested pursuant to written contractual piggyback registration rights of other stockholders of PubCo, which can be sold without exceeding the Maximum Number of Securities; or

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(ii)If the Registration is pursuant to a request by Persons other than the Special Holders, then PubCo shall include in any such Registration (A) first, the Common Stock or other Equity Securities, if any, of such requesting Persons, other than the Special Holders, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Special Holders exercising their rights to register their Registrable Securities pursuant to Section 4.2(a) (pro rata based on the respective number of Registrable Securities that each Special Holder has requested be included in such Registration) which can be sold without exceeding the Maximum Number of Securities; (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the Common Stock or other Equity Securities that PubCo desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A), (B) and (C), the Common Stock or other Equity Securities, if any, for the account of other Persons that PubCo is obligated to register pursuant to separate written contractual piggyback registration rights of such Persons, which can be sold without exceeding the Maximum Number of Securities.

(c)Piggyback Registration Withdrawal. Any Special Holder shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to PubCo and the Underwriter or Underwriters (if any) of such Special Holder’s intention to withdraw from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the SEC with respect to such Piggyback Registration or, in the case of a Piggyback Registration pursuant to a Shelf Registration, the filing of the applicable “red herring” prospectus or prospectus supplement with respect to such Piggyback Registration used for marketing such transaction. PubCo (whether on its own good faith determination or as the result of a request for withdrawal by Persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the SEC in connection with a Piggyback Registration (which, in no circumstance, shall include the Shelf) at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary set forth herein, PubCo shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this Section 4.2(c).

Section 4.3Restriction on Transfer. In connection with any Underwritten Offering of Equity Securities of PubCo, (i) each Holder that holds more than 1.0% of the issued and outstanding Common Stock (after giving effect to the exchange of all outstanding Company Units), agrees that it shall not Transfer any Common Stock (other than those included in such offering pursuant to this Agreement), without the prior written consent of PubCo, during the seven (7) days prior to and the 90-day period beginning on the date of pricing of such offering, except in the event the Underwriter managing the offering otherwise agrees by written consent, and further agrees to execute a customary lock-up agreement in favor of the Underwriter or Underwriters to such effect (in each case on substantially the same terms and conditions as all such Holders) and (ii) PubCo will cause each of its directors and officers to execute a lock-up on terms at least as restrictive as that contemplated by the preceding clause (i). Notwithstanding the foregoing, a Holder shall not be subject to this Section 4.3 with respect to an Underwritten Offering unless each Holder that holds at least 1.0% of the issued and outstanding Common Stock (after giving effect to the exchange of all outstanding Company Units) and each of PubCo’s directors and officers have executed a lock-up on terms at least as restrictive with respect to such Underwritten Offering as requested of the Holders.

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Section 4.4General Procedures. In connection with effecting any Registration and/or Shelf Takedown, subject to applicable Law and any regulations promulgated by any securities exchange on which PubCo’s Equity Securities are then listed, each as interpreted by PubCo with the advice of its counsel, PubCo shall use its commercially reasonable efforts to effect such Registration to permit the sale of the Registrable Securities included in such Registration in accordance with the intended plan of distribution thereof, and pursuant thereto PubCo shall, as expeditiously as possible:

(a)prepare and file with the SEC as soon as practicable a Registration Statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;

(b)prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by any Special Holder or as may be required by the rules, regulations or instructions applicable to the registration form used by PubCo or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;

(c)prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Special Holders that are Holders of Registrable Securities included in such Registration, and such Special Holders’ respective legal counsel, if any, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters or the Special Holders that are Holders of Registrable Securities included in such Registration or the respective legal counsel for any such Special Holders, if any, may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Special Holders;

(d)prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” Laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other Governmental Entities as may be necessary by virtue of the business and operations of PubCo and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that PubCo shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;

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(e) cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by PubCo are then listed;

(f)provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;

(g)advise each Holder of Registrable Securities covered by a Registration Statement, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the SEC suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;

(h)advise each Holder of Registrable Securities covered by a Registration Statement promptly after PubCo receives notice thereof, of the time when such Registration Statement has been declared effective or a supplement to any Prospectus forming a part of such Registration Statement has been filed;

(i)at least three (3) calendar days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus furnish a draft copy thereof to each Special Holder that is a Holder of Registrable Securities included in such Registration Statement, or its counsel, if any (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein);

(j)notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 4.7 hereof;

(k)permit Representatives of the Special Holders, the Underwriters, if any, and any attorney, consultant or accountant retained by such Special Holders or Underwriter to participate, at each such Person’s own expense except to the extent such expenses constitute Registration Expenses, in the preparation of the Registration Statement, and cause PubCo’s officers, directors and employees to supply all information reasonably requested by any such Representative, Underwriter, attorney, consultant or accountant in connection with the Registration; provided, however, that such Persons agree to confidentiality arrangements in form and substance reasonably satisfactory to PubCo, prior to the release or disclosure of any such information;

(l)obtain a “cold comfort” letter, and a bring-down thereof, from PubCo’s independent registered public accountants in the event of an Underwritten Offering which the participating Special Holders may rely on, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request, and reasonably satisfactory to the participating Special Holders;

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(m) on the date the Registrable Securities are delivered for sale pursuant to such Registration, if requested by the Underwriter(s), if any, obtain an opinion and negative assurance letter, dated such date, of counsel representing PubCo for the purposes of such Registration, addressed to the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion and negative assurance letter are being given as are customarily included in such opinions and negative assurance letters;

(n)in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;

(o)make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of PubCo’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the SEC);

(p)if an Underwritten Offering involves Registrable Securities with a total offering price (including piggyback securities and before deduction of underwriting discounts) reasonably expected to exceed, in the aggregate, $50.0 million, use its commercially reasonable efforts to make available senior executives of PubCo to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and

(q)otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested, by the Special Holders, in connection with such Registration.

Section 4.5Registration Expenses. The Registration Expenses of all Registrations shall be borne by PubCo. It is acknowledged by the Holders that the Holders selling any Registrable Securities in an offering shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing such Holders, in each case pro rata based on the number of Registrable Securities that such Holders have sold in such Registration.

Section 4.6Requirements for Participating in Underwritten Offerings. Notwithstanding anything to the contrary contained herein, if any Holder does not provide PubCo with its requested Holder Information, PubCo may exclude such Holder’s Registrable Securities from the applicable Registration Statement or Prospectus if PubCo determines, based on the advice of counsel, that such information is necessary to effect the registration and such Holder continues thereafter to withhold such information. No Person may participate in any Underwritten Offering of Equity Securities of PubCo pursuant to a Registration hereunder unless such Person (a) agrees to sell such Person’s Registrable Securities on the basis provided in any underwriting and other arrangements approved by PubCo in the case of an Underwritten Offering initiated by PubCo, and approved by the Demanding Holders in the case of an Underwritten Offering initiated by the Demanding Holders and (b) completes and executes all customary questionnaires, custody agreements, powers of attorney, indemnities, lock-up agreements, underwriting agreements and other customary documents as may be reasonably required under the terms of such underwriting arrangements. Subject to the minimum thresholds set forth in Section 4.1(c) and Section 4.4(p) of this Agreement, the exclusion of a Holder’s Registrable Securities as a result of this Section 4.6 shall not affect the registration of the other Registrable Securities to be included in such Registration.

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Section 4.7Suspension of Sales; Adverse Disclosure. Upon receipt of written notice from PubCo that a Registration Statement or Prospectus contains a Misstatement, each of the Holders shall forthwith discontinue disposition of Registrable Securities until it has received copies of a supplemented or amended Prospectus correcting the Misstatement (and PubCo hereby covenants to prepare and file such supplement or amendment as soon as practicable after giving such notice), or until it is advised in writing by PubCo that the use of the Prospectus may be resumed. If the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would require PubCo to make an Adverse Disclosure or would require the inclusion in such Registration Statement of financial statements that are unavailable to PubCo for reasons beyond PubCo’s control, PubCo may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time, but in no event more than one hundred twenty (120) days in any 12-month period, determined in good faith by PubCo to be necessary for such purpose. In the event PubCo exercises its rights under the preceding sentence, the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to such Registration in connection with any sale or offer to sell Registrable Securities. PubCo shall immediately notify the Holders of the expiration of any period during which it exercised its rights under this Section 4.7.

Section 4.8Reporting Obligations. As long as any Holder shall own Registrable Securities, PubCo, at all times while it shall be a reporting company under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by PubCo after the Effective Date pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holders with true and complete copies of all such filings; provided, that any documents publicly filed or furnished with the SEC pursuant to the Electronic Data Gathering, Analysis and Retrieval System shall be deemed to have been furnished to the Holders pursuant to this Section 4.8.

Section 4.9Other Obligations. (i) In connection with a Transfer of Registrable Securities exempt from Section 5 of the Securities Act or through any broker-dealer transactions described in the plan of distribution set forth within the Prospectus and pursuant to the Registration Statement of which such Prospectus forms a part and (ii) at any time following the Registrable Securities being eligible for resale under Rule 144 promulgated under the Securities Act without restriction, upon a Holder’s request, subject to applicable Law, as interpreted by PubCo with the advice of counsel, and the receipt of any customary documentation required from the applicable Holders in connection therewith (including a representation that a Holder will only sell the Registrable Securities in accordance with such Registration Statement or Rule 144 promulgated under the Securities Act, as applicable), PubCo shall (a) promptly instruct its transfer agent to remove any restrictive legends applicable to the Registrable Securities being Transferred and (b) cause its legal counsel (which may be internal counsel to PubCo) to deliver the necessary legal opinions, if any, to the transfer agent in connection with the instruction under clause (a). In addition, PubCo shall cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with the aforementioned Transfers; provided, however, that PubCo shall have no obligation to participate in any “road shows” or assist with the preparation of any offering memoranda or related documentation with respect to any Transfer of Registrable Securities in any transaction that does not constitute an Underwritten Offering. PubCo agrees to indemnify the transfer agent for the Registrable Securities as reasonably necessary and requested by the transfer agent to avoid a Holder of Registrable Securities having to provide a stock power with medallion guarantee in connection with a Transfer of Registrable Securities.

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Section 4.10Indemnification and Contribution.

(a)PubCo agrees to indemnify, to the extent permitted by Law, each Holder of Registrable Securities, its officers, managers, directors and Representatives and each Person who controls such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses (including attorneys’ fees) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information furnished in writing to PubCo by or on behalf of such Holder expressly for use therein. PubCo shall indemnify the Underwriters, their officers and directors and each Person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing sentence with respect to the indemnification of each Holder.

(b)In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to PubCo in writing such information and affidavits as PubCo reasonably requests for use in connection with any such Registration Statement or Prospectus (the “Holder Information”) and, to the extent permitted by Law, such Holder shall indemnify PubCo, its directors and officers and each Person who controls PubCo (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses (including without limitation reasonable attorneys’ fees) resulting from any untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by or on behalf of such Holder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds actually received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each Person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing sentence with respect to indemnification of PubCo.

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(c) Any Person entitled to indemnification under this Section 4.10 shall (i) give prompt written notice to the indemnifying party of any claim with respect to which such Person seeks indemnification (provided that the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld, conditioned or delayed). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

(d)The indemnification provided hereunder shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, manager, director, Representative or controlling Person of such indemnified party and shall survive the Transfer of securities. PubCo and each Holder of Registrable Securities participating in an offering also agrees to make such provisions as are reasonably requested by any indemnified party for contribution (pursuant to Section 4.10(e) below) to such party in the event PubCo’s or such Holder’s indemnification is unavailable for any reason.

(e)If the indemnification provided in this Section 4.10 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder under this Section 4.10(e) shall be limited to the amount of the net proceeds actually received by such Holder in such offering giving rise to such liability. The amount paid or payable by a Party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in Sections 4.10(a), 4.10(b) and 4.10(c), any legal or other fees, charges or expenses reasonably incurred by such Party in connection with any investigation or proceeding. The Parties agree that it would not be just and equitable if contribution pursuant to this Section 4.10(e) were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section 4.10(e). No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 4.10(e) from any Person who was not guilty of such fraudulent misrepresentation.

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(f)Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in any underwriting agreement entered into in connection with an underwritten public offering are in conflict with the foregoing provisions, the provision in the underwriting agreement shall control.

Section 4.11Other Registration Rights. Other than the registration rights set forth in the Subscription Agreements and the Transaction Support Agreements (each as defined in the BCA), PubCo represents and warrants that no Person, other than a Holder of Registrable Securities pursuant hereto, has any right to require PubCo to register any securities of PubCo for sale or to include such securities of PubCo in any Registration Statement filed by PubCo for the sale of securities for its own account or for the account of any other Person. Further, each of PubCo, the Sponsor and the Engaged Capital Investors represents and warrants that this Agreement supersedes any other registration rights agreement or other similar agreement, other than the registration rights set forth in the Forward Purchase Agreement and the Subscription Agreements.

Section 4.12Rule 144. With a view to making available to the Holders the benefits of Rule 144 promulgated under the Securities Act, PubCo covenants that it will (a) make available at all times information necessary to comply with Rule 144, if such Rule is available with respect to resales of the Registrable Securities under the Securities Act, and (b) take such further action as the Holders may reasonably request, all to the extent required from time to time to enable them to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act (if available with respect to resales of the Registrable Securities), as such rule may be amended from time to time.

Section 4.13 Term. Article IV shall terminate with respect to any Holder on the date that such Holder no longer holds any Registrable Securities. The provisions of Section 4.8 and Section 4.10 shall survive any such termination with respect to such Holder.

Section 4.14Holder Information. Each Holder agrees, if requested in writing by PubCo, to represent to PubCo the total number of Registrable Securities held by such Holder in order for PubCo to make determinations hereunder, including for purposes of Section 4.12 hereof.

Section 4.15Termination of Original RRA. Upon the Closing, SilverBox, the Sponsor and Engaged Capital terminated the Original RRA, and the Original RRA and all of the respective rights and obligations of the parties thereunder, as and from the Closing, were and are of no further force or effect.

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Section 4.16Distributions.

(a) In the event that the Sponsor or an Engaged Capital Investor, as applicable, (i) distributes its Registrable Securities to its direct equity holders or (ii) contributes its Registrable Securities to a controlled Affiliate, which Affiliate must be a Permitted Transferee, the distributees or contributees, as applicable, shall be treated as “Holders” hereunder (whether or not any such distributees would be a Permitted Transferee); provided, however, that any distributees or contributees, as applicable, holding 10.0% or more of all of the Registrable Securities of the Sponsor or the Engaged Capital Investors, as applicable, immediately following such distribution or contribution shall each be “Special Holder”; provided, further, that (x) such distributees or contributees, taken as a whole, shall not be entitled to rights in excess of those conferred on the Sponsor or the Engaged Capital Investors, as applicable, as if they each remained a single party to this Agreement and (y) such distributees or contributees shall be required, at the time of and as a condition to such distribution or contribution, to become a party to this Agreement.

(b)In the event that the Sterling Equityholder (i) distributes its Registrable Securities to its direct equity holders or (ii) contributes its Registrable Securities to a controlled Affiliate, which Affiliate must be a Permitted Transferee, the distributees or contributees, as applicable, shall be treated as “Holders” hereunder (whether or not any such distributees would be a Permitted Transferee); provided, however, that any distributees or contributees, as applicable, holding 10.0% or more of all of the Registrable Securities of the Sterling Equityholder immediately following such distribution or contribution shall each be “Special Holder”; provided, further, that (x) such distributees or contributees, taken as a whole, shall not be entitled to rights in excess of those conferred on the Sterling Equityholder, as if they remained a single party to this Agreement and (y) such distributees or contributees shall be required, at the time of and as a condition to such distribution or contribution, to become a party to this Agreement.

Section 4.17Adjustments. If there are any changes in the Common Stock as a result of stock split, stock dividend, combination or reclassification, or through merger, consolidation, recapitalization or other similar event, appropriate adjustment shall be made in the provisions of this Agreement, as may be required, so that the rights, privileges, duties and obligations hereunder shall continue with respect to the Common Stock as so changed.

Article V
LOCK-UP

Section 5.1Lock-Up.

(a)Other than pursuant to the LLC Agreement, no Equityholder shall Transfer, or make a public announcement of any intention to effect such Transfer, of any Lock-Up Shares (as defined below) Beneficially Owned or otherwise held by such Person during the Lock-Up Period (as defined below); provided, that such prohibition shall not apply to Transfers permitted pursuant to Section 5.2. The “Lock-Up Period” shall be the period commencing on the Closing Date and ending on the date that is six (6) months following the Closing Date. The “Lock-Up Shares” means (i) the Class A Common Stock, Class B Common Stock, Class C Common Stock, Common Units, Restricted Common Units, Warrants and Class A Common Stock issuable upon exercise of Warrants held by the the Equityholders and (ii) shares of Class A Common Stock issued pursuant to (i) the LLC Agreement upon exchange of Company Units held as of the Closing Date, along with an equal number of Class B Common Stock, for Class A Common Stock and (ii) the Certificate of Incorporation upon conversion of Class C Common Stock into Class A Common Stock; provided, however, that (x) any Equity Securities purchased by the Engaged Capital Investors pursuant to the Forward Purchase Agreement, and (y) any Equity Securities purchased by the Sponsor or any members of the Sponsor, any Affiliates of a member of the Sponsor or any employees of a member of the Sponsor or a member’s Affiliates pursuant to any Subscription Agreement entered into with SilverBox and/or PubCo in connection with the entry into the BCA shall not be “Lock-Up Shares” under this Agreement.

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(b)During the Lock-Up Period, any purported Transfer of Lock-Up Shares other than in accordance with this Agreement shall be null and void, and PubCo shall refuse to recognize any such Transfer for any purpose.

(c)The Equityholders acknowledge and agree that, notwithstanding anything to the contrary herein, the Equity Securities in the Operating Company (including Common Units and Restricted Common Units), shares of Class B Common Stock and shares of Class A Common Stock, in each case, Beneficially Owned by such Person, if any, shall remain subject to any restrictions on Transfer under applicable securities Laws of any Governmental Entity, including all applicable holding periods under the Securities Act and other rules of the SEC, and under the LLC Agreement.

Section 5.2Permitted Transfers. Notwithstanding anything to the contrary contained in this Agreement, during the Lock-Up Period the Equityholders may Transfer, without the consent of PubCo, any of such Person’s Lock-Up Shares to (i) any of such Person’s Permitted Transferees, upon written notice to PubCo, (ii) any members of such Person, any Affiliates of a member of such Person or any employees of a member of such Person or a member’s Affiliates or (iii) (a) a charitable organization, upon written notice to PubCo; (b) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual; (c) in the case of an individual, pursuant to a qualified domestic relations order; or (d) pursuant to any liquidation, merger, stock exchange or other similar transaction which results in all of PubCo’s stockholders having the right to exchange their shares of Common Stock for cash, securities or other property subsequent to the Business Combination; provided, that in connection with any Transfer of such Lock-Up Shares pursuant to clause (i) above, (x) the restrictions and obligations contained in Section 5.1 and this Section 5.2 will continue to apply to such Lock-Up Shares after any Transfer of such Lock-Up Shares, and (y) the Transferee of such Lock-Up Shares shall have no rights under this Agreement, unless as otherwise set forth herein. Any Transferee of Lock-Up Shares shall be required, at the time of and as a condition to such Transfer, to become a party to this Agreement by executing and delivering a joinder in the form attached to this Agreement as Exhibit A, whereupon such Transferee will be treated as a Party (with the same rights and obligations as the Transferor) for all purposes of this Agreement.

Article VI
GENERAL PROVISIONS

Section 6.1Assignment; Successors and Assigns; No Third Party Beneficiaries.

(a)Except as otherwise permitted hereunder, no Party may assign such Party’s rights and obligations under this Agreement, in whole or in part, without the prior written consent of PubCo. Any such assignee may not again assign those rights, other than in accordance with this Article VI. Any attempted assignment of rights or obligations in violation of this Article VI shall be null and void.

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(b)Notwithstanding anything to the contrary herein (other than the succeeding sentence of this Section 6.1(b) and subject to Section 3.2(e) and Section 4.16), no Holder may Transfer such Holder’s rights or obligations under this Agreement, in whole or in part, except in connection with a Transfer of such Holder’s Registrable Securities, in whole or in part, to (a) any Person with the prior written consent of PubCo or (b) any of such Holder’s Permitted Transferees. In no event can the Engaged Capital Investors or the Founder assign any of such Person’s rights under Sections 3.1. Any Transferee of Registrable Securities pursuant to this Section 6.1(b) shall be required, at the time of and as a condition to such Transfer, to become a party to this Agreement, whereupon such Transferee will be treated as a Party (with the same rights and obligations as the Transferor unless as otherwise set forth herein) for all purposes of this Agreement, as applicable and to the extent in accordance with this Section 6.1(b).

(c)All of the terms and provisions of this Agreement shall be binding upon the Parties and their respective successors, assigns, heirs and representatives, but shall inure to the benefit of and be enforceable by the successors, assigns, heirs and representatives of any Party only to the extent that they are permitted successors, assigns, heirs and representatives pursuant to the terms hereof; provided, however, notwithstanding anything to the contrary herein, Section 3.1, Section 3.2, Section 3.3, Section 4.3 and Section 5.1 shall only inure to the benefit of and be enforceable by (i) PubCo (with respect to each other Party) and (ii) each other Party (with respect to PubCo’s obligations to such other Party, as applicable).

(d)Nothing in this Agreement, express or implied, is intended to confer upon any Party, other than the Parties and their respective permitted successors, assigns, heirs and representatives, any rights or remedies under this Agreement or otherwise create any third party beneficiary hereto (provided, that, Engaged Capital shall be an intended third-party beneficiary for purposes of exercising the rights of the Engaged Capital Investors hereunder).

Section 6.2Termination. Section 3.1 shall terminate in accordance with its terms. Sections 3.2 shall terminate at the end of the Voting Period. Article IV of this Agreement shall terminate as set forth in Section 4.13. The remainder of this Agreement shall terminate automatically (without any action by any Party) as to each Holder when such Holder ceases to hold any Registrable Securities; provided, that, a Party may elect to terminate all of its rights and obligations under this Agreement prior to such time (which termination shall terminate such Party’s rights under Section 6.4(b), but shall not, for the avoidance of doubt, terminate such Party’s obligations under Section 3.1, Section 3.2, Section 3.3, Article V and Article VI).

Section 6.3Severability. If any provision of this Agreement is determined to be invalid, illegal or unenforceable by any Governmental Entity, the remaining provisions hereof, to the extent permitted by Law shall remain in full force and effect.

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Section 6.4Entire Agreement; Amendments; No Waiver.

(a) This Agreement, together with Exhibit A to this Agreement, the LLC Agreement, the Sponsor Letter Agreement (as such term is defined in the BCA) and, solely with respect to the terms defined therein and incorporated herein by reference, the BCA constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, understandings and discussions, whether oral or written, relating to such subject matter in any way and there are no warranties, representations or other agreements among the Parties in connection with such subject matter except as set forth in this Agreement and therein.

(b)No provision of this Agreement may be amended or modified in whole or in part at any time without the express written consent of (i) PubCo, (ii) for so long as the Sponsor and its Permitted Transferees Beneficially Own Economic Interests (in the Operating Company and PubCo, without duplication) representing 33.0% or more of the Economic Interests held by the Sponsor after the Closing, the Sponsor, (iii) for so long as the Engaged Capital Investors and their Permitted Transferees Beneficially Own Economic Interests (in the Operating Company and PubCo, without duplication) representing 33.0% or more of the Economic Interests held by the Engaged Capital Investors after the Closing, Engaged Capital, (iv) for so long as the Founder and its Permitted Transferees collectively Beneficially Own Economic Interests (in the Operating Company and PubCo, without duplication) representing 15% or more of the Economic Interests held by the Founder immediately after the Closing, the Founder, and (v) for so long as the Sterling Equityholder and its Permitted Transferees collectively Beneficially Own Economic Interests (in the Operating Company and PubCo, without duplication) representing 15% or more of the Economic Interests held by the Sterling Equityholder immediately after the Closing, the Sterling Equityholder; provided that any such amendment or modification that would be materially adverse in any respect to any Holder shall require the prior written consent of such Holder; provided, further that a provision that has terminated with respect to a Party shall not require any consent of such Party (and such Party’s Economic Interests shall not be considered in computing any percentages) with respect to amending or modifying such provision.

(c)No waiver of any provision or default under, nor consent to any exception to, the terms of this Agreement shall be effective unless in writing and signed by the Party to be bound and then only to the specific purpose, extent and instance so provided.

Section 6.5Counterparts; Electronic Delivery. This Agreement and any other agreements, certificates, instruments and documents delivered pursuant to this Agreement may be executed and delivered in one or more counterparts and by fax, email or other electronic transmission, each of which shall be deemed an original and all of which shall be considered one and the same agreement. No Party shall raise the use of a fax machine or email to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a fax machine or email as a defense to the formation or enforceability of a contract and each Party forever waives any such defense.

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Section 6.6Notices. All notices, demands and other communications to be given or delivered under this Agreement shall be in writing and shall be deemed to have been given (a) when personally delivered (or, if delivery is refused, upon presentment) or received by email (with confirmation of transmission) prior to 5:00 p.m. eastern time on a Business Day and, if otherwise, on the next Business Day, (b) one (1) Business Day following sending by reputable overnight express courier (charges prepaid) or (c) three (3) calendar days following mailing by certified or registered mail, postage prepaid and return receipt requested. Unless another address is specified in writing pursuant to the provisions of this Section 6.6, notices, demands and other communications shall be sent to the addresses indicated below.

if to PubCo, to:

BRC Inc.

1144 S 500 W

Salt Lake City, UT 84101

Attention: Tom Davin, Co-CEO and Andrew McCormick, General Counsel

Email: tom.davin@blackriflecoffee.com

           andrew.mccormick@blackriflecoffee.com

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

Kirkland & Ellis LLP

601 Lexington Avenue

New York, NY 10022

Attention:	Steven V. Napolitano, P.C.
	Joshua N. Korff, P.C.
	Peter Seligson
Email:	steven.napolitano@kirkland.com
	joshua.korff@kirkland.com
	peter.seligson@kirkland.com

if to the Sponsor, to:

SilverBox Engaged Sponsor LLC
1250 S. Capital of Texas Highway

Building 2, Suite 285

Austin, TX 78746

Attention:	Joseph Reece
	Stephen Kadenacy
Email:	jr@sbcap.com
	sk@sbcap.com

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

Paul Hastings LLP

1999 Avenue of the Stars, 27th Floor

Los Angeles, CA 90067

Attention:	David M. Hernand
	Jonathan Ko
Email:	davidhernand@paulhastings.com
	jonathanko@paulhastings.com

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if to any Engaged Capital Investor, to:

c/o Engaged Capital, LLC

610 Newport Center Drive, Suite 250

Newport Beach, California 92660

Attention: Glenn Welling

Email: glenn@engagedcapital.com

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

[●]

Attention: [●]

Email: [●]

if to the Founder, to:

Evan Hafer

c/o BRC Inc.

1144 S 500 W

Salt Lake City, UT 84101

Email: evan.hafer@blackriflecoffee.com

if to the Sterling Equityholder, to:

New Coffee Holdings, LLC

c/o Sterling Partners

401 N. Michigan Avenue, 33rd Floor

Chicago, Illinois 60601-1003

Attention: Office of the General Counsel

Email: aepstein@sterlingpartners.com

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Section 6.7Governing Law; Waiver of Jury Trial; Jurisdiction. The Law of the State of Delaware shall govern (a) all Actions, claims or matters related to or arising from this Agreement (including any tort or non-contractual claims) and (b) any questions concerning the construction, interpretation, validity and enforceability of this Agreement, and the performance of the obligations imposed by this Agreement, in each case without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND/OR THE RELATIONSHIPS ESTABLISHED AMONG THE PARTIES UNDER THIS AGREEMENT. EACH OF THE PARTIES FURTHER WARRANTS AND REPRESENTS THAT EACH HAS REVIEWED THIS WAIVER WITH SUCH PARTY’S LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES SUCH PARTY’S JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. Each of the Parties submits to the exclusive jurisdiction of first, the Chancery Court of the State of Delaware or if such court declines jurisdiction, then to the Federal District Court for the District of Delaware, in any Action arising out of or relating to this Agreement, agrees that all claims in respect of the Action shall be heard and determined in any such court and agrees not to bring any Action arising out of or relating to this Agreement in any other courts. Nothing in this Section 6.7, however, shall affect the right of any Party to serve legal process in any other manner permitted by Law or at equity. Each Party agrees that a final judgment in any Action so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by Law or at equity.

Section 6.8Specific Performance. Each Party hereby agrees and acknowledges that it will be impossible to measure in money the damages that would be suffered if the Parties fail to comply with any of the obligations imposed on them by this Agreement and that, in the event of any such failure, an aggrieved Party will be irreparably damaged and will not have an adequate remedy at Law. Any such Party shall, therefore, be entitled (in addition to any other remedy to which such Party may be entitled at Law or in equity) to injunctive relief, including specific performance, to enforce such obligations, without the posting of any bond, and if any Action should be brought in equity to enforce any of the provisions of this Agreement, none of the Parties shall raise the defense that there is an adequate remedy at Law.

Section 6.9Subsequent Acquisition of Shares. Any Equity Securities of PubCo or Operating Company acquired subsequent to the Effective Date by a Holder shall be subject to the terms and conditions of this Agreement and such shares shall be considered to be “Registrable Securities” as such term is used in this Agreement.

[Signature Pages Follow]

37

IN WITNESS WHEREOF, each of the Parties has duly executed this Agreement as of the Effective Date.

PUBCO:
[●]
By:
Name:	[●]
Title:	[●]
FOUNDER
Evan Hafer
SPONSOR:
SILVERBOX ENGAGED SPONSOR LLC
By:
Name:	[●]
Title:	[●]

[Signature Page - Investor Rights Agreement]

ENGAGED CAPITAL INVESTORS:

[●]

By:

Name: [●]

Title:   [●]

[●]

By:

Name: [●]

Title:   [●]

[●]

By:

Name: [●]

Title:   [●]

STERLING EQUITYHOLDER:

[●]

By:

Name: [●]

Title:   [●]

[Signature Page - Investor Rights Agreement]

OTHER SPECIAL HOLDERS:

Mathew Best

Jarred Taylor

Rich Ryan

Tom Davin

LEGACY EQUITYHOLDERS:

[●]

By:

Name: [●]

Title:   [●]

[Signature Page - Investor Rights Agreement]

[Signature Page - Investor Rights Agreement - Joinder]

EX-10.6

Exhibit 10.6

Final Form

FORM OF

TAX RECEIVABLE AGREEMENT

by and among

BRC INC.,

AUTHENTIC BRANDS LLC,

and

THE AGENT

DATED AS OF

[●]

Table of Contents

		Page
		2
Article I DEFINITIONS		2
Section 1.1	Definitions	11
Section 1.2	Other Definitional and Interpretative Provisions
Article II DETERMINATION OF CERTAIN REALIZED TAX BENEFITS		9
Section 2.1	Exchange Schedule	9
Section 2.2	Blocker Basis Schedule	9
Section 2.3	Tax Benefit Schedule	10
Section 2.4	Procedure: Amendments	11
Article III TAX BENEFIT PAYMENTS		12
Section 3.1	Payments	12
Section 3.2	No Duplicative Payments	12
Section 3.3	Pro Rata Payments	13
Section 3.4	Coordination of Benefits	13
Article IV TERMINATION		13
Section 4.1	Early Termination by the Corporation	13
Section 4.2	Early Termination upon Change of Control	14
Section 4.3	Breach of Agreement	14
Section 4.4	Early Termination Notice	15
Section 4.5	Payment upon Early Termination	16
Article V SUBORDINATION AND LATE PAYMENTS		16
Section 5.1	Subordination	16
Section 5.2	Late Payments by the Corporation	16
Article VI PARTICIPATION IN TAX MATTERS; CONSISTENCY; COOPERATION		17
Section 6.1	Participation in the Corporation’s Tax Matters	17
Section 6.2	Consistency	17
Section 6.3	Cooperation	17
Article VII MISCELLANEOUS		18
Section 7.1	Notices	18
Section 7.2	Counterparts	19
Section 7.3	Entire Agreement; No Third Party Beneficiaries	19
Section 7.4	Governing Law	19
Section 7.5	Severability	19
Section 7.6	Successors: Assignment	19
Section 7.7	Amendments: Waivers	19
Section 7.8	Titles and Subtitles	20
Section 7.9	Reconciliation	20
Section 7.10	Consent to Jurisdiction	21

i

	TABLE OF CONTENTS (cont’d)
		Page
Section 7.11	Waiver of Jury Trial	21
Section 7.12	Withholding	21
Section 7.13	Admission of the Corporation into a Consolidated Group; Transfers of Corporate Assets	22
Section 7.14	Confidentiality	23
Section 7.15	No Similar Agreements	23
Section 7.16	Change in Law	23
Section 7.17	Agent	24

ii

TAX RECEIVABLE AGREEMENT

This TAX RECEIVABLE AGREEMENT (this “Agreement”), dated as of [●], is hereby entered into by and among BRC Inc., a Delaware public benefit corporation (the “Corporation”), Authentic Brands LLC, a Delaware limited liability company (the “Company”), and the Agent.

RECITALS

WHEREAS, the Company, which is classified as a partnership for U.S. federal income tax purposes, has issued (and may after the Closing Date issue) limited liability company interests (“Units”) to certain Persons, providing such Persons an interest in the profits and/or losses of and distributions from the Company;

WHEREAS, the Corporation is the managing member of the Company;

WHEREAS, as a result of the Blocker Merger and the Business Combination, the Corporation is expected to obtain or be entitled to certain Tax benefits as further described herein;

WHEREAS, from and after the Closing, under certain circumstances, (i) each TRA Holder will have the right from time to time to require the Company to redeem all or a portion of such member’s Units (together with any corresponding shares of Class B Common Stock) for shares of Class A Common Stock or, at the election of the Corporation, cash, which may be effected by the Corporation effecting a direct exchange of shares of Class A Common Stock or cash for such Units (together with any such corresponding shares of Class B Common Stock), and (ii) the Company may make one or more distributions (including deemed distributions) to its members in respect of their Units that result in a Basis Adjustment (in each case, an “Exchange”), and as a result of any such Exchange, the Corporation is expected to obtain or be entitled to certain Tax benefits as further described herein;

WHEREAS, the Company and each of its direct and indirect Subsidiaries that is treated as a partnership for U.S. federal income tax purposes will have in effect an election under Section 754 of the Internal Revenue Code of 1986, as amended (the “Code”), and any corresponding provisions of state and local Tax law for the Taxable Year that includes the Closing Date and each Taxable Year in which an Exchange (as defined below) occurs, which election is expected to result, with respect to the Corporation, in an adjustment to the Tax basis of the assets owned by the Company and such Subsidiaries in connection with the Business Combination and each Exchange;

WHEREAS, this Agreement is intended to set forth the agreements among the parties hereto regarding the sharing of the Tax benefits realized by the Corporation as a result of (i) the Business Combination, (ii) the Exchanges, and (iii) certain of the payments made pursuant to this Agreement;

NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements set forth herein, and intending to be legally bound hereby, the parties hereto agree as follows:

Article I
DEFINITIONS

Section 1.1Definitions. As used in this Agreement, the terms set forth in this Article I shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined).

“Accrued Amount” has the meaning set forth in Section 3.1(b).

“Actual Tax Liability” means, with respect to any Taxable Year, the sum of (a) the actual liability for U.S. federal income Taxes for such Taxable Year of (i) the Corporation and (ii) without duplication, the Company, but only with respect to U.S. federal income Taxes imposed on the taxable income of the Company that is allocable to the Corporation and (b) the product of (i) the actual amount of taxable income for U.S. federal income Tax purposes for such Taxable Year of (A) the Corporation and (B) without duplication, the Company, but only with respect to the taxable income of the Company that is allocable to the Corporation for U.S. federal income Tax purposes multiplied by (ii) the Assumed State and Local Tax Rate for such Taxable Year; provided that, to avoid duplication with the calculation of the Assumed State and Local Tax Rate, the foregoing shall be determined assuming deductions of (and other impacts of) state and local Taxes are excluded.

“Affiliate” means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such first Person. For purposes of this Agreement, no TRA Holder shall be considered to be an Affiliate of the Corporation or the Company.

“Agent” means [Sterling Partners] or such other Person designated as the Agent pursuant to Section 7.6 or Section 7.17.

“Agreed Rate” means a per annum rate of SOFR plus 100 basis points.

“Agreement” has the meaning set forth in the preamble to this Agreement.

“Amended Schedule” has the meaning set forth in Section 2.4(b).

“Assumed State and Local Tax Rate” means, with respect to any Taxable Year, the tax rate equal to the sum of the product of (x) the Company’s income and franchise Tax apportionment factor(s) for each state and local jurisdiction in which the Company files income or franchise Tax Returns for the relevant Taxable Year and (y) the highest corporate income and franchise Tax rate(s) for each such state and local jurisdiction in which the Company files income or franchise Tax Returns for such Taxable Year; provided, that the Assumed State and Local Tax Rate calculated pursuant to the foregoing shall be reduced by the assumed federal income Tax benefit received by the Corporation with respect to state and local jurisdiction income and franchise Taxes (with such benefit calculated as the product of (a) the Corporation’s marginal U.S. federal income tax rate for the relevant Taxable Year and (b) the Assumed State and Local Tax Rate (without regard to this proviso)); provided, further, that if there is a change in applicable Tax law that impacts the federal income Tax benefit received by the Corporation with respect to state and local Taxes, then the Corporation may modify the calculation of the assumed federal income Tax benefit using reasonable estimation methodologies for calculating the portion of any Realized Tax Benefit or Realized Tax Detriment attributable to U.S. state or local Taxes.

“Attributable” has the meaning set forth on Exhibit A.

“Authorized Recipients” has the meaning set forth in Section 7.14.

“Bankruptcy Code” means Title 11 of the United States Code or any other insolvency statute.

2 

“Basis Adjustment” means any adjustment to the Tax basis of a Reference Asset as a result of (a) the Business Combination, (b) an Exchange or (c) the payments made pursuant to this Agreement with respect to the Business Combination or such Exchange (other than to the extent treated as Imputed Interest) (as calculated under Article II), including:

(i)under Sections 734(b), 743(b), 754 and 755 of the Code (in situations where, following an Exchange, the Company remains classified as a partnership for U.S. federal income tax purposes); and

(ii)under Sections 732(b), 734(b) and 1012 of the Code and, without duplication, as a result of any basis adjustment to which the Company succeeds, including pursuant to proposed Treasury Regulations Section 1.743-1(g) and any subsequent similar guidance and comparable sections of U.S. state and local income and franchise tax law (in situations where, as a result of one or more Exchanges, the Company or any of the Company’s Subsidiaries becomes an entity that is disregarded as separate from its owner for U.S. federal income tax purposes), and in the case of each of clauses (i) and (ii), comparable sections of state and local Tax laws.

The amount of any Basis Adjustment resulting from the Business Combination shall include any adjustment under Section 734(b) or Section 743(b) of the Code attributable to the applicable Units prior to the Business Combination, and the amount of any Basis Adjustment resulting from an Exchange of Units shall include any adjustment under Section 734(b) or Section 743(b) of the Code attributable to such Units prior to such Exchange (in each case, including comparable sections of state and local Tax laws). For the avoidance of doubt, payments made under this Agreement shall not be treated as resulting in a Basis Adjustment to the extent such payments are treated as Imputed Interest. The amount of any Basis Adjustment shall be determined using the Market Value at the time of the Exchange except, for the avoidance of doubt, to the extent otherwise required by a Determination.

“Beneficial Owner” means, with respect to a security, a Person who directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares:

(i)voting power, which includes the power to vote, or to direct the voting of, such security and/or

(ii)investment power, which includes the power to dispose of, or to direct the disposition of, such security.

The terms “Beneficially Own” and “Beneficial Ownership” shall have correlative meanings.

“Blocker Basis” means the existing Tax basis in the Reference Assets (including under Sections 734(b), 743(b) and 754 of the Code, including for the avoidance of doubt, Section 1.743-1(h) of the Treasury Regulations and, in each case, the comparable sections of U.S. state and local tax law) determined as of immediately prior to the Blocker Merger that is attributable to Units owned (directly or indirectly) by the Blocker as of immediately prior to the Blocker Merger and directly or indirectly acquired by the Corporation.

“Blocker Basis Schedule” has the meaning set forth in Section 2.2.

“Blocker Corp” means Grand Opal Investment Holdings, Inc., a Delaware corporation.

“Blocker Merger” has the meaning ascribed thereto in the Business Combination Agreement.

“Board” means the board of directors of the Corporation.

“Business Combination” has the meaning ascribed thereto in the Business Combination Agreement.

“Business Combination Agreement” means that certain Business Combination Agreement, dated as of November [●], 2021, by and among SilverBox Engaged Merger Corp I, a Delaware corporation, the Corporation, SBEA Merger Sub LLC, a Delaware limited liability company, Merger Sub 2, Blocker Corp and the Company.

“Business Day” has the meaning ascribed thereto in the Business Combination Agreement.

3 

“Change of Control” means the occurrence of any of the following events:

(i)any “person” or “group” (within the meaning of Sections 13(d) of the Exchange Act (excluding any “person” or “group” who, on the Closing Date, is the Beneficial Owner of securities of the Corporation representing more than 50% of the combined voting power of the Corporation’s then outstanding voting securities)) becomes the Beneficial Owner of securities of the Corporation representing more than 50% of the combined voting power of the Corporation’s then outstanding voting securities;

(ii)(A) the shareholders of the Corporation approve a plan of complete liquidation or dissolution of Corporation or (B) there is consummated an agreement or series of related agreements for the sale or other disposition, directly or indirectly, by the Corporation of all or substantially all of the Corporation’s assets, other than such sale or other disposition by the Corporation of all or substantially all of the Corporation’s assets to an entity at least 50% of the combined voting power of the voting securities of which are owned by shareholders of the Corporation in substantially the same proportions as their ownership of the Corporation immediately prior to such sale or other disposition;

(iii) there is consummated a merger or consolidation of the Corporation with any other corporation or other entity, and, immediately after the consummation of such merger or consolidation, either (A) the board of directors of the Corporation immediately prior to the merger or consolidation does not constitute at least a majority of the board of directors of the company surviving the merger or consolidation or, if the surviving company is a Subsidiary, the ultimate parent thereof, or (B) all of the Persons who were the respective Beneficial Owners of the voting securities of the Corporation immediately prior to such merger or consolidation do not Beneficially Own, directly or indirectly, more than 50% of the combined voting power of the then outstanding voting securities of the Person resulting from such merger or consolidation; or

(iv)the following individuals cease for any reason to constitute a majority of the number of directors of the Corporation then serving: individuals who were directors of the Corporation on the Closing Date or any new director whose appointment or election to the Board or nomination for election by the Corporation’s shareholders was approved or recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors of the Corporation on the Closing Date or whose appointment, election or nomination for election was previously so approved or recommended by the directors referred to in this clause (iv).

Notwithstanding the foregoing, a “Change of Control” shall not be deemed to have occurred by virtue of the consummation of any transaction or series of integrated transactions immediately following which the record holders of the Class A Common Stock and Class B Common Stock of the Corporation immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in and voting control over, and own substantially all of the shares of, an entity which owns all or substantially all of the assets of the Corporation immediately following such transaction or series of transactions.

“Change of Control Date” means the date on which a Change of Control occurs.

“Class A Common Stock” has the meaning ascribed to “Pubco Class A Share” in the Business Combination Agreement.

“Class B Common Stock” has the meaning ascribed to “Pubco Class B Share” in the Business Combination Agreement.

“Closing” has the meaning ascribed thereto in the Business Combination Agreement.

“Closing Date” has the meaning ascribed thereto in the Business Combination Agreement.

“Code” has the meaning set forth in the recitals of this Agreement.

“Company” has the meaning set forth in the recitals of this Agreement.

“Confidential Information” has the meaning set forth in Section 7.14.

4 

“Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise. The terms “Controlled” and “Controlling” shall have correlative meanings.

“Corporation” has the meaning set forth in the preamble to this Agreement.

“Corporation Letter” means a letter prepared by the Corporation in connection with the performance of its obligations under this Agreement, which states that the relevant Schedules, notices or other information to be provided by the Corporation to the Agent, along with all supporting schedules and work papers, were prepared in a manner that is consistent with the terms of this Agreement and, to the extent not expressly provided in this Agreement, on a reasonable basis in light of the facts and law in existence on the date such Schedules, notices or other information were delivered by the Corporation to the Agent. Such letter shall identify any material assumptions or operating procedures or principles that were used for purposes of the underlying calculations.

“Corporation Return” means the U.S. federal and/or state and/or local Tax Return of the Corporation (including any consolidated group of which the Corporation is a member, as further described in Section 7.13(a)) filed with respect to any Taxable Year.

“Cumulative Net Realized Tax Benefit” for a Taxable Year means the cumulative amount (but not less than zero) of Realized Tax Benefits for all Taxable Years of the Corporation, up to and including such Taxable Year, net of the cumulative amount of Realized Tax Detriments for the same period. The Realized Tax Benefit and Realized Tax Detriment for each Taxable Year shall be determined based on the most recent Tax Benefit Schedule or Amended Schedule, if any, in existence at the time of such determination; provided, that, for the avoidance of doubt, the computation of the Cumulative Net Realized Tax Benefit shall be adjusted to reflect any applicable Determination with respect to any Realized Tax Benefits and/or Realized Tax Detriments.

“Default Rate” means a per annum rate of SOFR plus 500 basis points.

“Determination” shall have the meaning ascribed to such term in Section 1313(a) of the Code or similar provision of any state or local Tax law or any other event (including the execution of IRS Form 870-AD) that finally and conclusively establishes the amount of any liability for Tax.

“Disinterested Majority” means a majority of the directors of the Board who are disinterested as determined by the Board in accordance with the General Corporation Law of the State of Delaware with respect to the matter being considered by the Board; provided that to the extent a matter being considered by the Board is required to be considered by disinterested directors under the rules of the national securities exchange on which the Class A Common Stock is then listed, the Securities Act or the Exchange Act, such rules with respect to the definition of disinterested director shall apply solely with respect to such matter.

“Disputing Party” has the meaning set forth in Section 7.9.

“Early Termination” has the meaning set forth in Section 4.1.

“Early Termination Date” means the date of an Early Termination Notice for purposes of determining the Early Termination Payment.

“Early Termination Effective Date” means the date on which an Early Termination Schedule becomes binding pursuant to Section 4.4.

“Early Termination Notice” has the meaning set forth in Section 4.4.

“Early Termination Payment” has the meaning set forth in Section 4.5(b).

“Early Termination Rate” means a per annum rate of SOFR plus 100 basis points.

5 

“Early Termination Schedule” has the meaning set forth in Section 4.4.

“Exchange” has the meaning set forth in the recitals in this Agreement, and “Exchanged” has a correlative meaning.

“Exchange Act” has the meaning ascribed thereto in the LLC Agreement.

“Exchange Date” means the effective date of any Exchange.

“Exchange Schedule” has the meaning set forth in Section 2.1.

“Expert” has the meaning set forth in Section 7.9.

“Hypothetical Tax Liability” means, with respect to any Taxable Year, the liability for Taxes of the Corporation and, without duplication, the Company, but only with respect to Taxes imposed on the taxable income of the Company that is allocable to the Corporation, for such Taxable Year (in each case, using the same methods, elections, conventions, and similar practices used on the relevant Corporation Return), but without taking into account any Tax Attributes. The Hypothetical Tax Liability shall be determined (A) without taking into account the carryover or carryback of any Tax item (or portions thereof) that is attributable to any Tax Attribute, (B) using the Assumed State and Local Tax Rate, solely for purposes of calculating the state and local Hypothetical Tax Liability of the Corporation, (C) to avoid duplication with the calculation of the Assumed State and Local Tax Rate, assuming deductions of (and other impacts of) state and local Taxes are excluded, and (D) to the extent not addressed in clause (B) or (C) of this sentence, using reasonable estimation methodologies for calculating the portion of any of the foregoing items attributable to U.S. state or local Taxes.

“Imputed Interest” means any interest imputed under Section 1272, 1274 or 483 or other provision of the Code and any similar provision of any state and local Tax law with respect to the Corporation’s payment obligations under this Agreement.

“IRS” means the U.S. Internal Revenue Service.

“LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of the Company dated as of the date hereof, as the same may be amended, amended and restated, replaced, supplemented or otherwise modified from time to time.

“Market Value” shall mean, with respect to a Unit, the Common Unit Redemption Price (as defined in the LLC Agreement) on the applicable Exchange Date for such Unit (determined as if such Unit were subject to a Redemption (as defined in the LLC Agreement) effective on the Exchange Date); provided that, to the extent property is exchanged for cash in a transaction, the Market Value shall be determined by reference to the amount of cash transferred in such transaction.

“Material Objection Notice” has the meaning set forth in Section 4.4.

“Merger Sub 2” means BRCC Blocker Merger Sub LLC, a Delaware limited liability company.

“Net Tax Benefit” has the meaning set forth in Section 3.1(b).

“Objection Notice” has the meaning set forth in Section 2.4(a).

“Payment Date” means any date on which a payment is required to be made pursuant to this Agreement.

“Person” has the meaning ascribed thereto in the Business Combination Agreement.

6 

“Realized Tax Benefit” means, for a Taxable Year, the excess, if any, of the Hypothetical Tax Liability over the Actual Tax Liability. If all or a portion of the Actual Tax Liability for the Taxable Year arises as a result of an audit by a Taxing Authority for any Taxable Year, such liability shall not be included in determining the Realized Tax Benefit unless and until there has been a Determination.

“Realized Tax Detriment” means, for a Taxable Year, the excess, if any, of the Actual Tax Liability over the Hypothetical Tax Liability. If all or a portion of the Actual Tax Liability for the Taxable Year arises as a result of an audit by a Taxing Authority for any Taxable Year, such liability shall not be included in determining the Realized Tax Detriment unless and until there has been a Determination.

“Reconciliation Dispute” has the meaning set forth in Section 7.9.

“Reconciliation Procedures” means the procedures described in Section 7.9.

“Reference Asset” means any asset that is held by the Company, or any Person in which the Company owns a direct or indirect interest that is treated as a partnership or disregarded entity for purposes of the applicable Tax (but only to the extent such Person is not held through any entity treated as a corporation for purposes of the applicable Tax), immediately prior to the Business Combination or at the time of an Exchange, as applicable. A Reference Asset also includes any asset the Tax basis of which is determined, in whole or in part, for purposes of the applicable Tax, by reference to the Tax basis of an asset that is described in the immediately preceding sentence, including, for U.S. federal income Tax purposes, any asset that is “substituted basis property” under Section 7701(a)(42) of the Code with respect to a Reference Asset.

“Schedule” means any of the following: (i) an Exchange Schedule, (ii) a Blocker Basis Schedule, (iii) a Tax Benefit Schedule or (iv) the Early Termination Schedule, including, in each case, any amendments thereto pursuant to this Agreement.

“Securities Act” has the meaning ascribed thereto in the LLC Agreement.

“Senior Obligations” has the meaning set forth in Section 5.1.

“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.

“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.

“Subsidiaries” means, with respect to any Person, as of the date of any determination, any other Person as to which such Person, owns, directly or indirectly, or otherwise controls more than 50% of the voting power or other similar interests or the sole general partner interest or managing member or similar interest of such Person.

“Tax Attributes” means (a) Basis Adjustments, (b) Blocker Basis and (c) deductions attributable to any Imputed Interest.

“Tax Benefit Payment” has the meaning set forth in Section 3.1(b).

“Tax Benefit Schedule” has the meaning set forth in Section 2.3(a).

“Tax Proceeding” has the meaning set forth in Section 6.1.

7 

“Tax Return” means any return, declaration, report or similar statement filed or required to be filed with respect to Taxes (including any attached schedules), including any information return, claim for refund, amended return and declaration of estimated Tax.

“Taxable Year” means a taxable year of the Corporation as defined in Section 441(b) of the Code or comparable section of state or local Tax law, as applicable (which, for the avoidance of doubt, may include a period of less than twelve (12) months for which a Tax Return is made), ending on or after the date hereof.

“Taxes” means any and all U.S. federal, state and local taxes, assessments or similar charges that are based on or measured with respect to net income or profits, and any interest related to such Tax.

“Taxing Authority” means any federal, national, state, county or municipal or other local government, any subdivision, agency, commission or authority thereof, or any quasi- governmental body, in each case, exercising any taxing authority or any other authority exercising Tax regulatory authority.

“TRA Holders” means the Persons holding Units other than the Corporation, Blocker Corp, Merger Sub 2 or any Subsidiary, successor, or transferee of any of the foregoing.

“Treasury Regulations” means the final, temporary and proposed regulations under the Code promulgated from time to time (including corresponding provisions and succeeding provisions) as in effect for the relevant Taxable Year.

“Units” has the meaning set forth in the recitals of this Agreement.

“Valuation Assumptions” means, as of an Early Termination Date, the assumptions that in each Taxable Year ending on or after such Early Termination Date, (i) the Corporation will have taxable income sufficient to fully utilize the Tax items, including deductions, arising from all Tax Attributes during such Taxable Year or future Taxable Years (including, for the avoidance of doubt, Basis Adjustments and Imputed Interest that would result from future Tax Benefit Payments that would be paid in accordance with the Valuation Assumptions, further assuming that such future Tax Benefit Payments would be paid on the due date, without extensions, for filing the U.S. federal Corporation Return for the applicable Taxable Year) in which such deductions or other Tax items would become available, (ii) any loss or credit carryovers generated by deductions or losses arising from any Tax Attributes that are available in the Taxable Year that includes the Early Termination Date will be utilized by the Corporation in the earliest possible Taxable Year permitted by the Code and the Treasury Regulations, (iii) the U.S. federal income tax rates that will be in effect for each Taxable Year ending on or after such Early Termination Date will be those specified for each such Taxable Year by the Code and the tax rates for U.S. state and local income taxes shall be the Assumed State and Local Tax Rate, in each case as in effect on the Early Termination Date, except to the extent any change to such tax rates for such Taxable Years have already been enacted into law, in which case such enacted changes to tax rates for such Taxable Years shall apply to such Taxable Years (and, in the case of the tax rate for the latest Taxable Year for which there is any such enacted change, to all future Taxable Years), (iv) any non-amortizable, non-depreciable Reference Assets to which any Basis Adjustment or Blocker Basis is attributable will be disposed of for cash at their fair market value in a fully taxable transaction for Tax purposes on the later of (A) the fifteenth anniversary of (x) the Business Combination or Exchange which gave rise to such Basis Adjustment or (y) the Business Combination in the case of the Blocker Basis and (B) the Early Termination Date, provided, that in the event of a Change of Control, such non-amortizable, non-depreciable assets shall be deemed disposed of at the time of sale (if applicable) of the relevant asset in the Change of Control (if earlier than the applicable fifteenth (15th) anniversary), and (v) if, on the Early Termination Date, there are Units (other than Units directly or indirectly owned by the Corporation) that have not been transferred in an Exchange, then all such Units and (if applicable) shares of Class B Common Stock shall be deemed to be transferred in exchange for the Market Value per Unit that would be transferred in an Exchange effective on the Early Termination Date.

Section 1.2Other Definitional and Interpretative Provisions. The words “hereof,” “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise specified. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words or words of like import. “Writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms thereof. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively.

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Article II
DETERMINATION OF CERTAIN REALIZED TAX BENEFITS

Section 2.1Exchange Schedule. Within ninety (90) calendar days after the extended due date of the U.S. federal Corporation Return for each Taxable Year in which the Business Combination occurs or any Exchange has been effected by a TRA Holder, the Corporation shall deliver to the Agent a schedule (an “Exchange Schedule”) that shows, in reasonable detail necessary to perform the calculations required by this Agreement, including with respect to each TRA Holder participating in the Business Combination or any Exchange during such Taxable Year, (i) the Basis Adjustments with respect to the Reference Assets as a result of the Business Combination and the Exchanges effected by such TRA Holder in such Taxable Year and (ii) the period (or periods) over which such Basis Adjustments are amortizable and/or depreciable.

Section 2.2Blocker Basis Schedule. Within ninety (90) calendar days after the extended due date of the U.S. federal Corporation Return for each Taxable Year that ends on or after the Closing Date, the Corporation shall deliver to the Agent a schedule (a “Blocker Basis Schedule”) that shows, in reasonable detail necessary to perform the calculations required by this Agreement, (i) the Tax attributes comprising Blocker Basis that remain available for use by the Corporation with respect to such Taxable Year and future Taxable Years, and (ii) any applicable limitations on the use of such attributes for Tax purposes.

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Section 2.3Tax Benefit Schedule.

(a)Tax Benefit Schedule. Within ninety (90) calendar days after the extended due date of the U.S. federal Corporation Return for any Taxable Year in which there is a Realized Tax Benefit or Realized Tax Detriment that is Attributable to a TRA Holder, the Corporation shall provide to the Agent: (i) a schedule showing, in reasonable detail, (A) the calculation of the Realized Tax Benefit or Realized Tax Detriment and the components thereof for such Taxable Year, (B) the Accrued Amount with respect to any related Net Tax Benefit, (C) the Tax Benefit Payment determined pursuant to Section 3.1(b) due to each such TRA Holder, and (D) the portion of such Tax Benefit Payment and Accrued Amount that the Corporation intends to treat as Imputed Interest (a “Tax Benefit Schedule”), (ii) a reasonably detailed calculation by the Corporation of the Hypothetical Tax Liability (the “without” calculation), (iii) a reasonably detailed calculation by the Corporation of the Actual Tax Liability (the “with” calculation), (iv) a copy of the Corporation Return for such Taxable Year, (v) a Corporation Letter supporting such Tax Benefit Schedule and (vi) any other work papers relating to the items in the foregoing clauses (i) through (v) as are reasonably requested by the Agent. All costs and expenses incurred in connection with the provision and preparation of any Schedules, calculations, other work papers, or the Corporation Letter to the Agent or any TRA Holder in connection with this Article II shall be borne by the Company. In addition, the Corporation shall allow the Agent reasonable access at no cost to the appropriate representatives of the Corporation in connection with a review of any of the foregoing. The Tax Benefit Schedule will become final as provided in Section 2.4(a) and may be amended as provided in Section 2.4(b) (subject to the procedures set forth in Section 2.4(b)).

(b)Applicable Principles. The Realized Tax Benefit or Realized Tax Detriment for each Taxable Year is intended to measure the decrease or increase in the Corporation’s actual liability for Taxes for such Taxable Year that is attributable to the Tax Attributes, determined using a “with and without” methodology. For the avoidance of doubt, (i) such actual liability for Taxes will take into account any Imputed Interest based upon the characterization of Tax Benefit Payments and Accrued Amounts as additional consideration payable by the Corporation, and (ii) in addition to using the Assumed State and Local Tax Rate for purposes of determining the state and local Hypothetical Tax Liability, the Corporation may use reasonable estimation methodologies for calculating the portion of any Realized Tax Benefit or Realized Tax Detriment attributable to U.S. state or local Taxes. For purposes of calculating the Realized Tax Benefit or Realized Tax Detriment for any Taxable Year, carryforwards or carrybacks of any Tax item (such as a net operating loss) attributable to any of the Tax Attributes shall be considered to be subject to the rules of the Code and the Treasury Regulations and the corresponding provisions of state and local Tax laws, as applicable, governing the use, limitation, and expiration of carryforwards or carrybacks of the relevant type. If a carryforward or carryback of any Tax item includes a portion that is attributable to any Tax Attribute (a “TRA Portion”) and another portion that is not so attributable (a “Non-TRA Portion”), such respective portions shall be considered to be used in accordance with the “with and without” methodology so that: (x) the amount of any Non-TRA Portion is deemed utilized first, followed by the amount of any TRA Portion; and (y) in the case of a carryback of a Non-TRA Portion, such carryback shall not affect the original “with and without” calculation made in the applicable prior Taxable Year. For the avoidance of doubt, the TRA Portion of any Tax item when such item is incurred shall be determined using a marginal “with and without” methodology by calculating (A) the amount of such Tax item for all Tax purposes taking into account the Tax Attributes and (B) the amount of such Tax item for all Tax purposes without taking into account the Tax Attributes, with the TRA Portion equal to the excess of the amount specified in clause (A) over the amount specified in clause (B) (but only if such excess is greater than zero). The parties agree that (I) except to the extent otherwise required by law, any payment under this Agreement to the TRA Holders, including the Accrued Amount (but other than amounts accounted for as Imputed Interest), will be treated as a subsequent upward adjustment to the purchase price of Units surrendered in the Business Combination or an Exchange, as applicable, and will have the effect of creating additional Basis Adjustments to Reference Assets for the Corporation in the year of payment, and (II) as a result, such additional Basis Adjustments will be incorporated into the calculation for the year of payment and into future year calculations, as appropriate.

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Section 2.4Procedure: Amendments.

(a)Whenever the Corporation delivers to the Agent (or any TRA Holder) a Schedule under this Agreement, including any Amended Schedule delivered pursuant to Section 2.4(b), and any Early Termination Schedule or amended Early Termination Schedule, the Corporation shall also (x) deliver to the Agent schedules, valuation reports, if any, and work papers, as determined by the Corporation or reasonably requested by the Agent, providing reasonable detail regarding the preparation of the Schedule, and (y) allow the Agent reasonable access at no cost to the appropriate representatives of the Corporation, as determined by the Corporation or requested by the Agent, in connection with the review of such Schedule. Subject to Section 2.4(b), an applicable Schedule or amendment thereto shall become final and binding on all parties thirty (30) calendar days from the first date on which the Agent has received the applicable Schedule or amendment thereto unless (i) the Agent, within thirty (30) calendar days after receiving an applicable Schedule or amendment thereto, provides the Corporation with notice of a material objection to such Schedule or amendment thereto (“Objection Notice”) made in good faith or (ii) the Agent provides a written waiver of such right of any Objection Notice within the period described in clause (i) above, in which case such Schedule or amendment thereto becomes binding on the date a waiver from the Agent has been received by the Corporation. If the Corporation and Agent, for any reason, are unable to successfully resolve the issues raised in an Objection Notice within thirty (30) calendar days after receipt by the Corporation of such Objection Notice, the Corporation and Agent shall employ the Reconciliation Procedures under Section 7.9.

(b)The applicable Schedule for any Taxable Year may be amended from time to time by the Corporation (i) in connection with a Determination affecting such Schedule, (ii) to correct inaccuracies in the Schedule identified as a result of the receipt of additional factual information relating to a Taxable Year after the date the Schedule was provided to the Agent, (iii) to comply with the Expert’s determination under the Reconciliation Procedures, (iv) to reflect a change in the Realized Tax Benefit or Realized Tax Detriment for such Taxable Year attributable to a carryback or carryforward of a loss or other Tax item to such Taxable Year, (v) to reflect a change in the Realized Tax Benefit or Realized Tax Detriment for such Taxable Year attributable to an amended Corporation Return filed for such Taxable Year or (vi) to adjust an Exchange Schedule to take into account payments made pursuant to this Agreement (any such Schedule, an “Amended Schedule”). Unless otherwise agreed to in writing by the Agent, the Corporation shall provide an Amended Schedule to the Agent (A) within sixty (60) calendar days of the occurrence of an event referenced in clauses (i) through (v) of the immediately preceding sentence and (B) in connection with the delivery of the Tax Benefit Schedule for the year of the applicable payment in the event of an adjustment pursuant to clause (vi) of the immediately preceding sentence. For the avoidance of doubt, in the event a Schedule is amended after such Schedule becomes final pursuant to Section 2.4(a), or, if applicable, the Reconciliation Procedures, the Amended Schedule shall not be taken into account in calculating any Tax Benefit Payment in the Taxable Year to which the amendment relates but instead shall be taken into account in calculating the Cumulative Net Realized Tax Benefit for the Taxable Year in which the amendment actually occurs.

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Article III
TAX BENEFIT PAYMENTS

Section 3.1Payments.

(a)Subject to Exhibit A, within five (5) calendar days after a Tax Benefit Schedule delivered to the Agent becomes final in accordance with Section 2.4(a), or, if applicable, the Reconciliation Procedures, the Corporation shall pay to each TRA Holder the Tax Benefit Payment in respect of such TRA Holder for such Taxable Year. Each such payment shall be made by check, by wire transfer of immediately available funds to the bank account previously designated by the TRA Holder to the Corporation, or as otherwise agreed by the Corporation and the TRA Holder. For the avoidance of doubt, no Tax Benefit Payment shall be made in respect of estimated Tax payments, including U.S. federal or state estimated income Tax payments.

(b)A “Tax Benefit Payment” in respect of a TRA Holder for a Taxable Year means an amount, not less than zero, equal to the sum of the portion of the Net Tax Benefit that is Attributable to such TRA Holder and the Accrued Amount with respect thereto for such Taxable Year. Subject to Section 3.3, the “Net Tax Benefit” for a Taxable Year shall be an amount equal to the excess, if any, of (i) eighty-five percent (85%) of the Cumulative Net Realized Tax Benefit as of the end of such Taxable Year over (ii) the total amount of payments previously made under this Section 3.1 (excluding payments attributable to Accrued Amounts); provided, for the avoidance of doubt, that no TRA Holder shall be required to return any portion of any previously made Tax Benefit Payment. The “Accrued Amount” with respect to any portion of a Net Tax Benefit for a Taxable Year shall equal the amount of interest on such portion calculated at the Agreed Rate from the due date (without extensions) for filing the U.S. federal Corporation Return for such Taxable Year until the date of payment of such portion of such Net Tax Benefit under this Section 3.1. Notwithstanding the foregoing, for each Taxable Year ending on or after the date of a Change of Control that occurs after the Closing Date, all Tax Benefit Payments shall be calculated by utilizing Valuation Assumptions (i), (ii), and (iv), substituting in each case the terms “date of a Change of Control” for an “Early Termination Date.”

Section 3.2No Duplicative Payments. It is intended that the provisions of this Agreement will not result in duplicative payment of any amount (including interest) required under this Agreement. It is also intended that the provisions of this Agreement will result in eighty-five percent (85%) of the Cumulative Net Realized Tax Benefit, and the Accrued Amount thereon, being paid to the TRA Holders. The provisions of this Agreement shall be construed in the appropriate manner to achieve these fundamental results.

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Section 3.3Pro Rata Payments. Notwithstanding anything in Section 3.1 to the contrary, to the extent that the aggregate Realized Tax Benefit of the Corporation is limited in a particular Taxable Year because the Corporation does not have sufficient taxable income, the aggregate Net Tax Benefit for such Taxable Year shall be deemed Attributable to each TRA Holder for purposes of Section 3.1(b) in accordance with Exhibit A.

Section 3.4Coordination of Benefits. (a) If for any reason the Corporation does not fully satisfy its payment obligations to make all Tax Benefit Payments due under this Agreement in respect of a particular Taxable Year, then (i) the Corporation will pay the same proportion of each Tax Benefit Payment due to each TRA Holder in respect of such Taxable Year, without favoring one obligation over the other, and (ii) no Tax Benefit Payment shall be considered to have been made in respect of any Taxable Year until all Tax Benefit Payments in respect of prior Taxable Years have been made in full.

(b)To the extent the Corporation makes a payment to a TRA Holder in respect of a particular Taxable Year under Section 3.1(a) (taking into account Section 3.3 and Section 3.4(a)) in an amount in excess of the amount of such payment that should have been made to such TRA Holder in respect of such Taxable Year, then (i) such TRA Holder shall not receive further payments under Section 3.1(a) until such TRA Holder has foregone an amount of payments equal to such excess and (ii) the Corporation will pay the amount of such TRA Holder’s foregone payments to the other Persons to whom a payment is due under this Agreement in a manner such that each such Person to whom a payment is due under this Agreement, to the maximum extent possible, receives aggregate payments under Section 3.1(a) (taking into account Section 3.3 and Section 3.4(a), but excluding payments attributable to Accrued Amounts) in the amount it would have received if there had been no excess payment to such TRA Holder.

Article IV
TERMINATION

Section 4.1Early Termination by the Corporation. With the written approval of the Disinterested Majority and the Agent, the Corporation may terminate this Agreement at any time by paying to each TRA Holder the Early Termination Payment due to such TRA Holder pursuant to Section 4.5, provided, however, that this Agreement shall only terminate upon the receipt of the applicable Early Termination Payment by each TRA Holder (such termination, an “Early Termination”) and payments described in the immediately succeeding sentence, if any. Upon payment of the Early Termination Payment by the Corporation, the Corporation shall not have any further payment obligations under this Agreement, other than for any (i) Tax Benefit Payments previously due and payable but unpaid as of the date of the Early Termination Notice (which Tax Benefit Payments, for the avoidance of doubt, shall not be included in the Early Termination Payment) and that remain unpaid and (ii) any Tax Benefit Payment due for any Taxable Year ending prior to, with or including the Early Termination Date (except to the extent that the amount described in this clause (ii) is included in the Early Termination Payment or is included in clause (i)).

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Section 4.2Early Termination upon Change of Control. In the event of a Change of Control, unless otherwise waived in writing by the Agent, all obligations hereunder shall be accelerated and such obligations shall be calculated as if an Early Termination Notice had been delivered on the Change of Control Date and shall include the following: (a) payment of the Early Termination Payment calculated as if an Early Termination Notice had been delivered on such Change of Control Date, (b) any Tax Benefit Payments due and payable and that remain unpaid as of the Change of Control Date (which Tax Benefit Payments, for the avoidance of doubt, shall not be included in the Early Termination Payment described in clause (a)), and (c) any Tax Benefit Payments due for any Taxable Year ending prior to, with or including such Change of Control Date (except to the extent that the amount described in this clause (c) is included in the Early Termination Payment or is included in clause (b)). In the event of a Change of Control, the Early Termination Payment shall be calculated utilizing the Valuation Assumptions and by substituting in each case the term “Change of Control Date” for the term “Early Termination Date.”

Section 4.3Breach of Agreement.

(a)In the event that the Corporation (1) breaches any of its material obligations under this Agreement, whether as a result of failure to make any payment when due, as a result of failure to honor any other material obligation required hereunder or by operation of law as a result of the rejection of this Agreement in a case commenced under the Bankruptcy Code or otherwise or (2)(A) shall commence any case, proceeding or other action (x) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate a bankruptcy or insolvency, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to its debts or (y) seeking an appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or it shall make a general assignment for the benefit of creditors or (B) shall have commenced against it any case, proceeding or other action of the nature referred to in clause (A) above that remains undismissed or undischarged for a period of sixty (60) calendar days, then, in each case of clause (1) or (2), unless otherwise waived or directed in writing by the Agent (which may be retroactive), all obligations hereunder shall be automatically accelerated and shall be immediately due and payable and such obligations shall be calculated as if an Early Termination Notice had been delivered on the date of such event (a “Breach”) and shall include (i) the Early Termination Payment calculated as if an Early Termination Notice had been delivered on the date of such Breach, (ii) any Tax Benefit Payment previously due and payable but unpaid as of the date of such Breach (which Tax Benefit Payments, for the avoidance of doubt, shall not be included in the Early Termination Payment described in clause (i)), and (iii) any Tax Benefit Payment due for any Taxable Year ending prior to, with or including the date of such Breach (except to the extent that the amount described in this clause (iii) is included in the Early Termination Payment or is included in clause (ii)). Notwithstanding the foregoing, in the event of a Breach, then, unless otherwise waived in writing by the Agent, the TRA Holders shall be entitled to elect to receive the amounts set forth in clauses (i), (ii), and (iii) above or to seek specific performance of the terms hereof.

(b)The parties agree that the failure to make any payment due pursuant to this Agreement within three (3) months of the date such payment is due shall be deemed to be a breach of a material obligation under this Agreement for all purposes of this Agreement, and that it shall not be considered to be a breach of a material obligation under this Agreement to make a payment due pursuant to this Agreement within three (3) months of the date such payment is due. The Corporation shall use its commercially reasonable efforts to maintain sufficient available funds for the purpose of making required payments under this Agreement and shall use its commercially reasonable efforts to avoid entering into agreements that could reasonably be anticipated to materially delay the timing of any payments under this Agreement. Notwithstanding anything in this Agreement to the contrary, it shall not be a breach of this Agreement if the Corporation fails to make any payment due pursuant to this Agreement as a result of and to the extent the Corporation has insufficient funds to make such payment despite using commercially reasonable efforts to obtain funds to make such payment (including by causing the Company or any of its Subsidiaries to distribute or lend funds to facilitate such payment, and by accessing any revolving credit facilities or other sources of available credit to fund any such amounts); provided that the interest provisions of Section 5.2 shall apply to such late payment; provided, further, that the Corporation shall promptly (and in any event, within two (2) Business Days), pay all such unpaid payments, together with accrued and unpaid interest thereon, immediately following such time that the Corporation has, and to the extent the Corporation has, sufficient funds to make such payment, and the failure of the Corporation to do so shall constitute a breach of this Agreement; provided, further, for the avoidance of doubt, the penultimate sentence of this Section 4.3(b) shall not apply to any payments due pursuant to Section 4.2. For the avoidance of doubt, all cash and cash equivalents used or to be used to pay dividends by, or repurchase equity securities of, the Corporation shall be deemed to be funds sufficient and available to pay such unpaid payments, together with any accrued and unpaid interest thereon.

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Section 4.4Early Termination Notice. If the Corporation chooses to exercise its right of early termination under Section 4.1 above, the Corporation shall deliver to the Agent notice of such intention to exercise such right (the “Early Termination Notice”). Upon delivery of the Early Termination Notice or the occurrence of an event described in Section 4.2 or a Breach described in Section 4.3(a), the Corporation shall deliver to the Agent (i) a schedule showing in reasonable detail the calculation of the Early Termination Payment and the amount due to each TRA Holder (the “Early Termination Schedule”), (ii) any other work papers reasonably requested by the Agent. In addition, the Corporation shall allow the Agent reasonable access at no cost to the appropriate representatives of the Corporation in connection with a review of such Early Termination Schedule, and (iii) a Corporation Letter supporting such Early Termination Schedule. The Early Termination Schedule shall become final and binding on all parties thirty (30) calendar days from the first date on which the Agent has received such Schedule or amendment thereto unless (x) the Agent, within thirty (30) calendar days after receiving the Early Termination Schedule, provides the Corporation with notice of a material objection to such Schedule made in good faith (“Material Objection Notice”) or (y) the Agent provides a written waiver of such right of a Material Objection Notice within the period described in clause (x) above, in which case such Schedule becomes binding on the date a waiver from the Agent has been received by the Corporation. If the Corporation and Agent, for any reason, are unable to successfully resolve the issues raised in such notice within thirty (30) calendar days after receipt by the Corporation of the Material Objection Notice, the Corporation and Agent shall employ the Reconciliation Procedures under Section 7.9.

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Section 4.5Payment upon Early Termination.

(a)Except as otherwise provided in Section 4.3(a), within three (3) calendar days after the Early Termination Effective Date, the Corporation shall pay to each TRA Holder its Early Termination Payment. Each such payment shall be made by check, by wire transfer of immediately available funds to a bank account or accounts designated by the TRA Holder, or as otherwise agreed by the Corporation and the TRA Holder.

(b)The “Early Termination Payment” shall equal, with respect to each TRA Holder, the present value, discounted at the Early Termination Rate as of the Early Termination Date, of all Tax Benefit Payments that would be required to be paid by the Corporation to such TRA Holder beginning from the Early Termination Date and assuming that the Valuation Assumptions are applied and that each Tax Benefit Payment for the relevant Taxable Year would be due and payable on the due date (without extensions) under applicable law as of the Early Termination Effective Date for filing the U.S. federal Corporation Return for such relevant Taxable Year.

Article V
SUBORDINATION AND LATE PAYMENTS

Section 5.1Subordination. Notwithstanding any other provision of this Agreement to the contrary, any Tax Benefit Payment, Early Termination Payment or any other payment required to be made by the Corporation to any TRA Holder under this Agreement shall rank subordinate and junior in right of payment to any principal, interest or other amounts due and payable in respect of any obligations in respect of indebtedness for borrowed money of the Corporation and its Subsidiaries (such obligations, “Senior Obligations”) and shall rank pari passu with all current or future unsecured obligations of the Corporation that are not Senior Obligations. Notwithstanding any other provision of this Agreement to the contrary, to the extent that the Corporation or any of its Affiliates enters into future Tax receivable or other similar agreements (“Future TRAs”), the Corporation shall ensure that the terms of any such Future TRA shall provide that the Tax Attributes subject to this Agreement shall be senior in priority in all respects to any Tax attributes subject to any such Future TRA for purposes of calculating the amount and timing of payments under any such Future TRA. For the avoidance of doubt, notwithstanding the above, the determination of whether it is a breach of this Agreement if the Corporation fails to make any payment when due is governed by Section 4.3.

Section 5.2Late Payments by the Corporation. The amount of all or any portion of any Tax Benefit Payment, Early Termination Payment or any other payment under this Agreement not made to any TRA Holder when due under the terms of this Agreement shall be payable together with any interest thereon, computed at the Default Rate and commencing from the date on which such Tax Benefit Payment, Early Termination Payment or any other payment under this Agreement was due and payable.

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Article VI  

PARTICIPATION IN TAX MATTERS; CONSISTENCY; COOPERATION

Section 6.1Participation in the Corporation’s Tax Matters. Except as otherwise provided herein, the Corporation shall have full responsibility for, and sole discretion over, all Tax matters concerning the Corporation, including preparing, filing or amending any Tax Return and defending, contesting or settling any issue pertaining to Taxes of the Corporation. Notwithstanding the foregoing, the Corporation (i) shall notify the Agent of, and keep the Agent reasonably informed with respect to, the portion of any audit, examination, or any other administrative or judicial proceeding of the Corporation, the Company, or any of their respective Affiliates by a Taxing Authority (a “Tax Proceeding”) the outcome of which is reasonably expected to affect the rights and obligations of the TRA Holders under this Agreement, (ii) shall provide the Agent with reasonable opportunity to provide information and other input to the Corporation and its advisors concerning the conduct of any such portion of a Tax Proceeding, and (iii) shall not enter into any settlement with respect to any such portion of a Tax Proceeding that could have a material effect on the TRA Holders’ rights (including the right to receive payments) under this Agreement without the written consent of the Agent, such consent not to be unreasonably withheld, conditioned or delayed; provided, however, that the Corporation shall not be required to take any action, or refrain from taking any action, that is inconsistent with any provision of the LLC Agreement; provided, further, that, notwithstanding anything to the contrary contained herein, the Corporation shall prepare, file, and/or amend all Tax Returns in accordance with applicable law (including with respect to the calculation of taxable income and any calculations required to be made under this Agreement) and nothing in this Agreement shall prevent the Agent or any TRA Holder from disputing such Tax matters in accordance with Section 7.9.

Section 6.2Consistency. The Corporation and the TRA Holders agree to report and cause their respective Affiliates to report for all purposes, including U.S. federal, state and local Tax purposes and financial reporting purposes, all Tax-related items (including the Tax Attributes and each Tax Benefit Payment) in a manner consistent with that set forth in this Agreement and in any Schedule that has become final and binding pursuant to the terms of this Agreement, in each case, except to the extent otherwise required by applicable law. If the Corporation and any TRA Holder, for any reason, are unable to successfully resolve any disagreement concerning such treatment within thirty (30) calendar days, the Corporation and such TRA Holder shall employ the Reconciliation Procedures under Section 7.9. The Corporation shall (and shall cause the Company and its other Affiliates to) use commercially reasonable efforts (for the avoidance of doubt, taking into account the interests and entitlements of all TRA Holders under this Agreement) to defend the Tax treatment contemplated by this Agreement and any Schedule that has become final and binding pursuant to the terms of this Agreement in any Tax Proceeding.

Section 6.3Cooperation. The Agent shall (i) furnish to the Corporation in a timely manner such information, documents and other materials in the Agent’s possession as the Corporation may reasonably request for purposes of making any determination or computation necessary or appropriate under this Agreement, preparing any Tax Return or contesting or defending any Tax Proceeding, (ii) make itself available to the Corporation and its representatives to provide explanations of documents and materials and such other information as the Corporation or its representatives may reasonably request in connection with any of the matters described in clause (i) above, and (iii) reasonably cooperate in connection with any such matter. The Corporation shall reimburse the Agent for any reasonable third-party costs and expenses incurred pursuant to this Section 6.3.

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Article VII
MISCELLANEOUS

Section 7.1Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given or made when (a) delivered personally to the recipient, (b) delivered by means of electronic mail (with hard copy sent to the recipient by reputable overnight courier service (charges prepaid) that same day) if emailed before 5:00 p.m. [●] time on a Business Day, and otherwise on the next Business Day, or (c) one (1) Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid). All notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice:

If to the Corporation or the Company, to:

[ ]
Attention: [ ]
E-mail: [ ]

with a copy (which shall not constitute notice to the Corporation or the Company) to:

[ ]
Attention: [ ]
E-mail: [ ]

If to the Agent, to:

[ ]
Attention: [ ]
E-mail: [ ]

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

[ ]
Attention: [ ]
E-mail: [ ]

If to a TRA Holder other than the Agent, to the address set forth in the records of the Company.

Any party may change its address or fax number by giving the other party written notice of its new address or fax number in the manner set forth above.

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Section 7.2Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. Delivery of an executed signature page to this Agreement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.

Section 7.3Entire Agreement; No Third Party Beneficiaries. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. This Agreement shall be binding upon and inure solely to the benefit of each party hereto and their respective successors, permitted assigns, heirs, executors, administrators and legal representatives. The parties to this Agreement agree that the TRA Holders are expressly made third party beneficiaries to this Agreement. Other than as provided in the immediately preceding sentence, nothing in this Agreement, express or implied, is intended to, or shall, confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Section 7.4Governing Law. This Agreement shall be governed by, and construed in accordance with, the law of the State of Delaware, without regard to the conflicts of laws principles thereof that would mandate the application of the laws of another jurisdiction.

Section 7.5Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

Section 7.6Successors: Assignment. Each party agrees that Agent and each TRA Holder may assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily or involuntarily, or by operation of law, any of its rights or obligations under this Agreement to any Person. The Corporation may not assign any of its rights or obligations under this Agreement to any Person without the prior written consent of the Agent; provided that, without the prior written consent of the Agent, the Corporation shall be permitted to cause such an assignment to any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Corporation, so long as the Corporation requires and causes such successor, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Corporation would be required to perform if no such succession had taken place. Any purported assignment in violation of the terms of this Section 7.6 shall be null and void.

Section 7.7Amendments: Waivers. No provision of this Agreement may be amended unless such amendment is approved in writing by each of the Disinterested Majority, the Company and the Agent; provided, that no such amendment shall be effective if such amendment would have a disproportionate effect on the payments one or more TRA Holders would be entitled to receive under this Agreement unless such amendment is consented to in writing by such TRA Holders disproportionately affected.

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Section 7.8Titles and Subtitles. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.

Section 7.9Reconciliation. In the event that the Corporation and the Agent or any TRA Holder (as applicable, the “Disputing Party”) are unable to resolve a disagreement with respect to any Schedule, including the calculations required to produce the schedules described in Section 2.4 and Section 4.4, or Section 6.2, within the relevant period designated in this Agreement (“Reconciliation Dispute”), the Reconciliation Dispute shall be submitted for determination to a nationally recognized expert in the particular area of disagreement, acting as an expert and not as an arbitrator (the “Expert”), mutually acceptable to the Corporation and the Disputing Party. Unless the Corporation and the Disputing Party agree otherwise, the Expert shall not, and the firm that employs the Expert shall not, have any material relationship with the Corporation or the Disputing Party or other actual or potential conflict of interest. If the Corporation and the Disputing Party are unable to agree on an Expert within fifteen (15) calendar days of receipt by the respondents of written notice of a Reconciliation Dispute, then the Expert shall be appointed by the International Chamber of Commerce Centre for Expertise (the “ICC”) in accordance with the criteria set forth above in this Section 7.9. The Expert shall resolve (a) any matter relating to the Exchange Schedule or an amendment thereto, a Blocker Basis Schedule or an amendment thereto, or the Early Termination Schedule or an amendment thereto within thirty (30) calendar days, (b) any matter relating to a Tax Benefit Schedule or an amendment thereto within fifteen (15) calendar days, and (c) any matter related to treatment of any tax-related item as contemplated in Section 6.2 within fifteen (15) calendar days or, in each case, as soon thereafter as is reasonably practicable after such matter has been submitted to the Expert for resolution. Notwithstanding the immediately preceding sentence, if the matter is not resolved before any payment that is the subject of a disagreement would be due (in the absence of such disagreement) or any Tax Return reflecting the subject of a disagreement is due, any portion of such payment that is not under dispute shall be paid on the date prescribed by this Agreement and such Tax Return may be filed as prepared by the Corporation, subject to adjustment or amendment upon resolution. The sum of (i) the costs and expenses relating to the engagement (and, if applicable, selection by the ICC) of such Expert and (ii) the reasonable out-of-pocket costs and expenses of the Corporation and the Disputing Party incurred in the conduct of such proceeding shall be allocated between the Corporation, on the one hand, and the Disputing Party (on behalf of all TRA Holders if the Disputing Party is the Agent), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Expert that is unsuccessfully disputed by each such party (as finally determined by the Expert) bears to the total amount of such disputed items so submitted, and each such party shall promptly reimburse the other party for the excess that such other party has paid in respect of such costs and expenses over the amount it has been so allocated. Any dispute as to the allocation of expenses pursuant to the immediately preceding sentence or whether a dispute is a Reconciliation Dispute within the meaning of this Section 7.9 shall be decided by the Expert. The Expert shall finally determine any Reconciliation Dispute and the determinations of the Expert pursuant to this Section 7.9 shall be binding on the Corporation and its Subsidiaries and the Disputing Party (including all TRA Holders if the Disputing Party is the Agent) and may be entered and enforced in any court having jurisdiction.

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Section 7.10Consent to Jurisdiction. Each party hereto irrevocably submits to the exclusive jurisdiction of the United States District Court for the State of Delaware and the state courts of the State of Delaware for the purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby. Each party hereto further agrees that service of any process, summons, notice or document by United States certified or registered mail (in each such case, prepaid return receipt requested) to such party’s respective address set forth in the Company’s books and records or such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party shall be effective service of process in any action, suit or proceeding in Delaware with respect to any matters to which it has submitted to jurisdiction as set forth above in the immediately preceding sentence. Each party hereto irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby in the United States District Court for the State of Delaware or the state courts of the State of Delaware and hereby irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in such court has been brought in an inconvenient forum.

Section 7.11Waiver of Jury Trial. Because disputes arising in connection with complex transactions are most quickly and economically resolved by an experienced and expert person and the parties wish applicable state and federal laws to apply (rather than arbitration rules), the parties desire that their disputes be resolved by a judge applying such applicable laws. Therefore, to achieve the best combination of the benefits of the judicial system and of arbitration, each party to this agreement (including the Company) hereby waives all rights to trial by jury in any action or proceeding brought to resolve any dispute between or among any of the parties hereto, whether arising in contract, tort, or otherwise, arising out of, connected with, related or incidental to this agreement, the transactions contemplated hereby and/or the relationships established among the parties hereunder.

Section 7.12Withholding. The Corporation shall be entitled to deduct and withhold from any payment payable pursuant to this Agreement such amounts as the Corporation is required to deduct and withhold with respect to the making of such payment under the Code or any provision of U.S. federal, state, local or non-U.S. Tax law; provided, however, that, prior to deducting or withholding any such amounts, the Corporation shall notify the Agent and the applicable TRA Holder and shall reasonably cooperate therewith regarding the basis for such deduction or withholding and in obtaining any available exemption or reduction of, or otherwise minimizing to the extent permitted by applicable law, such deduction and withholding. To the extent that amounts are so withheld and paid over to the appropriate Taxing Authority by the Corporation, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of whom such withholding was made. To the extent that any payment pursuant to this Agreement is not reduced by such required deductions or withholdings applicable to the recipient of such payment, such recipient shall indemnify the applicable withholding agent for any amounts imposed by any Taxing Authority with respect to such deductions or withholdings, together with any reasonable and documented out-of-pocket costs and expenses related thereto. Prior to the date of any payment under this Agreement and from time to time as reasonably requested by the Corporation, the Agent and each TRA Holder shall promptly provide the Corporation with any applicable Tax forms and certifications (including IRS Form W-9 or the applicable version of IRS Form W-8) reasonably requested and shall promptly provide an update of any such Tax form or certificate previously delivered if the same has become incorrect or has expired.

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Section 7.13Admission of the Corporation into a Consolidated Group; Transfers of Corporate Assets.

(a)If the Corporation is or becomes a member of an affiliated, consolidated, combined, or unitary group of corporations that files a consolidated, combined, or unitary income Tax Return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of U.S. state or local Tax law, or would be eligible to become a member of such a group at the election of one of the members of that group, then, subject to the application of the Valuation Assumptions upon a Change of Control: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole.

(b)If any entity that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder or the Company or any Subsidiary of the Company (or any member of a group described in Section 7.13(a)) transfers or is deemed to transfer one or more assets to a corporation (or a Person classified as a corporation for Tax purposes) with which the Corporation does not file a consolidated Tax Return pursuant to Section 1501 of the Code or any provisions of state or local Tax law, such entity, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g. calculating the gross income of the entity and determining the Realized Tax Benefit or Realized Tax Detriment of such entity) due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such transfer. The consideration deemed to be received by such entity shall be equal to the fair market value of the transferred asset, plus (i) the amount of debt to which such asset is subject, in the case of a transfer of an encumbered asset or (ii) the amount of debt allocated to such asset, in the case of a transfer of a partnership interest. Thus, for example, in determining the Hypothetical Tax Liability of the entity, the taxable income of the entity shall be determined by treating the entity as having sold the asset for the consideration described above, recovering any basis applicable to such asset (using the Tax basis that such asset would have had at such time if there were no Tax Attributes), while the Actual Tax Liability of the entity would be determined by recovering the actual Tax basis of the asset that reflects any Tax Attributes. If any member of a group described in Section 7.13(a) that owns any Reference Asset (or is deemed to own such Reference Asset for Tax purposes) deconsolidates from such group (or the Corporation deconsolidates from a group described in Section 7.13(a)), then the Corporation shall cause such member (or the parent of the consolidated group in a case where the Corporation deconsolidates from the group and such parent or any of its remaining consolidated Subsidiaries owns any Reference Asset (or is deemed to own such Reference Asset for Tax purposes)) to assume the obligation to make payments hereunder with respect to the applicable Tax Attributes associated with any Reference Asset it owns (directly or indirectly) in a manner consistent with the terms of this Agreement as such entity (or one of its Affiliates) actually realizes Tax benefits as a result of such Tax Attributes in a manner consistent with the terms of this Agreement, and the Corporation shall guarantee such obligation assumed. For purposes of this Section 7.13, a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s share of each of the assets and liabilities of that partnership and ownership of a partnership interest shall be treated as ownership of such partner’s share of each of the assets and liabilities of that partnership.

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Section 7.14Confidentiality. Each TRA Holder and the Agent agrees to hold, and to use its reasonable efforts to cause its authorized representatives to hold, in strict confidence, the books and records of the Corporation and all information relating to the Corporation’s properties, operations, financial condition or affairs, in each case, which are furnished to it pursuant to the terms of this Agreement (collectively, the “Confidential Information”). Notwithstanding anything herein to the contrary, Confidential Information shall not include any information that (i) is or becomes generally available to the public other than as a result of an unauthorized disclosure by a TRA Holder or the Agent, (ii) is or becomes available to a TRA Holder, the Agent, or any of their respective Authorized Recipients (as defined below) on a nonconfidential basis from a third-party source, which source, to the knowledge of such TRA Holder or the Agent, as applicable, is not bound by a legal duty of confidentiality to the Corporation in respect of such Confidential Information, or (iii) is independently developed by a TRA Holder, the Agent or their Authorized Recipients. Notwithstanding anything herein to the contrary, a TRA Holder or the Agent may disclose any Confidential Information to (x) any of its representatives, (y) any Affiliates or (z) in the case of a TRA Holder, any bona fide prospective assignee of such TRA Holder’s rights under this Agreement, or prospective merger or other business combination partner of such TRA Holder (the persons in clauses (x), (y) and (z), collectively, the “Authorized Recipients”). If a TRA Holder, the Agent or any of their respective Authorized Recipients is required or requested by law or regulation or any legal or judicial process to disclose any Confidential Information, if disclosure of Confidential Information is required by any entity or body exercising executive, legislative, judicial, regulatory or administrative functions of government with authority over such TRA Holder, Agent or Authorized Recipient, or if disclosure of Confidential Information is required in connection with the tax affairs of such TRA Holder, Agent or Authorized Recipient, such TRA Holder, the Agent or Authorized Recipient, as the case may be, may disclose only such portion of such Confidential Information as may be required or requested without liability hereunder.

Section 7.15No Similar Agreements. Neither the Corporation nor any of its Subsidiaries shall enter into any additional agreement providing rights similar to this Agreement to any Person (including any agreement pursuant to which the Corporation is obligated to pay amounts with respect to tax benefits resulting from any net operating losses or other tax attributes to which the Corporation becomes entitled as a result of a transaction) without the prior written consent of the Agent.

Section 7.16Change in Law. Notwithstanding anything herein to the contrary, if, in connection with an actual or proposed change in law, a TRA Holder reasonably believes that the existence of this Agreement could cause income (other than income arising from receipt of a payment under this Agreement) recognized by such TRA Holder upon any Exchange to be treated as ordinary income rather than capital gain (or otherwise taxed at ordinary income rates) for U.S. federal income or applicable state or local Tax purposes or would have other material adverse Tax consequences to the TRA Holder and/or its direct or indirect owners, then at the election of the TRA Holder (with the prior written consent of the Agent) and to the extent specified by the TRA Holder, this Agreement (i) shall cease to have further effect with respect to such TRA Holder, or (ii) shall otherwise be amended in a manner determined by the TRA Holder to waive any benefits to which such TRA Holder would otherwise be entitled under this Agreement, provided that such amendment shall not result in (I) an increase in or acceleration of payments by the Corporation, or (II) a decrease or delay in the amounts payable to other TRA Holders, in each case, under this Agreement at any time as compared to the amounts and times of payments that would have been due in the absence of such amendment.

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Section 7.17Agent.

(a)Appointment. Without further action of any party hereto or any TRA Holder, and as partial consideration of the benefits conferred by this Agreement, the Agent is hereby irrevocably constituted and appointed to act as the sole representative, agent and attorney-in-fact for the TRA Holders and their successors and assigns with respect to the taking by the Agent of any and all actions and the making of any decisions required or permitted to be taken by the Agent under this Agreement. The power of attorney granted herein is coupled with an interest and is irrevocable and may be delegated by the Agent. No bond shall be required of the Agent, and the Agent shall receive no compensation for its services.

(b)Expenses. If at any time the Agent shall incur out-of-pocket expenses in connection with the exercise of its duties hereunder, upon written notice to the Corporation from the Agent of documented costs and expenses (including fees and disbursements of counsel and accountants) incurred by the Agent in connection with the performance of its rights or obligations under this Agreement and the taking of any and all actions in connection therewith, the Corporation shall reduce any future payments (if any) due to the TRA Holders hereunder, proportionately, by the amount of such expenses which it shall instead remit directly to the Agent. In connection with the performance of its rights and obligations under this Agreement and the taking of any and all actions in connection therewith, the Agent shall not be required to expend any of its own funds (though, for the avoidance of doubt, it may do so at any time and from time to time in its sole discretion).

(c)Limitation on Liability. The Agent shall not be liable to any TRA Holder for any act of the Agent arising out of or in connection with the acceptance or administration of its duties under this Agreement, except to the extent any liability, loss, damage, penalty, fine, cost or expense is actually incurred by such TRA Holder as a proximate result of the gross negligence, bad faith or willful misconduct of the Agent (it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of such good faith and reasonable judgment). The Agent shall not be liable for, and shall be indemnified by the TRA Holders (on a several but not joint basis) for, any liability, loss, damage, penalty or fine incurred by the Agent (and any cost or expense incurred by the Agent in connection therewith and herewith and not previously reimbursed pursuant to subsection (b) above) arising out of or in connection with the acceptance or administration of its duties under this Agreement, except to the extent that any such liability, loss, damage, penalty, fine, cost or expense is the proximate result of the gross negligence, bad faith or willful misconduct of the Agent (it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of such good faith and reasonable judgment); provided, however, in no event shall any TRA Holder be obligated to indemnify the Agent hereunder for any liability, loss, damage, penalty, fine, cost or expense to the extent (and only to the extent) that the aggregate amount of all liabilities, losses, damages, penalties, fines, costs and expenses indemnified by such TRA Holder hereunder is or would be in excess of the aggregate payments under this Agreement actually remitted to such TRA Holder. Each TRA Holder’s receipt of any and all benefits to which such TRA Holder is entitled under this Agreement, if any, is conditioned upon and subject to such TRA Holder’s acceptance of all obligations, including the obligations of this Section 7.17(c), applicable to such TRA Holder under this Agreement.

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(d)Actions of the Agent. Any decision, act, consent or instruction of the Agent shall constitute a decision of all TRA Holders and shall be final, binding and conclusive upon each TRA Holder, and the Corporation may rely upon any decision, act, consent or instruction of the Agent as being the decision, act, consent or instruction of each TRA Holder. The Corporation is hereby relieved from any liability to any Person for any acts done by the Corporation in accordance with any such decision, act, consent or instruction of the Agent. 

(e)Approved Assignment. Each TRA Holder hereby agrees that the Agent may, at any time and in its sole discretion, elect to make an assignment, in whole or in part, of this Agreement to a Person (upon such election, an “Approved Assignment”), and each such TRA Holder will raise no objections against such Approved Assignment, regardless of the consideration (if any) being paid in such Approved Assignment, so long as such Approved Assignment does not materially and adversely impact such TRA Holders in a manner materially disproportionate to the other TRA Holders. Each TRA Holder will take all actions requested by the Agent in connection with the consummation of an Approved Assignment, including the execution of all agreements, documents and instruments in connection therewith requested by the Agent of such TRA Holder. If at any time the Agent becomes unable or unwilling to continue in its capacity as Agent or resigns as Agent without making an Approved Assignment, then in each case the TRA Holders may, by a plurality vote of such Persons ratably in accordance with their respective rights to receive Early Termination Payments under this Agreement, appoint a new representative to replace the then serving Agent. Notice of such appointment must be delivered to the Corporation. Such appointment will be effective upon the later of the date indicated in such notice or the date such notice is received by the Corporation. The Agent may resign upon thirty (30) calendar days’ written notice to the Corporation.

[Signature Pages Follow]

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IN WITNESS WHEREOF, the Corporation, the Company, and the Agent have duly executed this Agreement as of the date first written above.