REPRESENTATIONS AND WARRANTIES OF DMY AND MERGER SUB. 54 4.1 Organization; Authority; Enforceability 54 4.2 Capitalization 55 4.3 Brokerage 57 4.4 Trust Account 57 4.5 dMY SEC Documents; Controls 58 4.6 Absence of Certain Developments 60 4.7 Litigation 60 4.8 Listing 60 4.9 Investment Company 60 4.10 Noncontravention 60 4.11 Business Activities 61 4.12 Tax Matters 62 4.13 Affiliate Transactions 64 4.14 Compliance with Laws 64 4.15 Employees 64 4.16 PIPE Investment 64 4.17 No Foreign Person 65 4.18 Inspections; Company Representations 65 ARTICLE V INTERIM OPERATING COVENANTS 66 5.1 Interim Operating Covenants of the Company 66 5.2 Interim Operating Covenants of dMY 69 ARTICLE VI PRE-CLOSING AGREEMENTS 71 6.1 Commercially Reasonable Efforts; Further Assurances 71 6.2 Trust & Closing Funding 72 6.3 Listing; Public Filings 72 6.4 Employment Agreements 72 6.5 Confidential Information 73 6.6 Access to Information 73 6.7 Notification of Certain Matters 73 6.8 Regulatory Approvals; Efforts 74 6.9 Communications; Press Releases 75 6.10 Registration Statement 75 6.11 dMY Stockholder Meeting; Board Recommendation 78 6.12 Expenses 79 6.13 Directors and Officers 79 6.14 Equity Financing; Cooperation 80 6.15 Stock Transactions 81 6.16 Exclusivity 82 6.17 Intellectual Property Covenants 82 6.18 Tax Matters 83 6.19 Additional Support Agreements 84 6.20 Company Stockholder Approval 84 6.21 LTIP and ESPP 84 6.22 Delivery of Financial Statements 85 ARTICLE VII TERMINATION 85 7.1 Termination 85 7.2 Effect of Termination 87 ARTICLE VIII MISCELLANEOUS 87 8.1 Amendment and Waiver 87 8.2 Waiver of Remedies; Survival of Representations and Warranties 87 8.3 Notices 88 8.4 Assignment 89 8.5 Severability 89 8.6 Interpretation 89 8.7 Entire Agreement 90 8.8 Counterparts; Electronic Delivery 90 8.9 Governing Law; Waiver of Jury Trial; Jurisdiction 90 8.10 Trust Account Waiver 91 8.11 Specific Performance 92 8.12 No Third-Party Beneficiaries 92 8.13 Disclosure Letters and Exhibits 92 8.14 No Recourse 93 8.15 Legal Representation 94 8.16 Acknowledgements 95 8.17 Equitable Adjustments 96 AGREEMENT AND PLAN OF MERGER This Agreement and Plan of Merger (this “Agreement”) is made and entered into as of March 7, 2021, by and among (i) dMY Technology Group, Inc. III, a Delaware corporation (“dMY”), (ii) IonQ, Inc., a Delaware corporation (the “Company”) and (iii) Ion Trap Acquisition Inc., a Delaware corporation and a wholly owned subsidiary of dMY (“Merger Sub”). Each of dMY, the Company and Merger Sub is also referred to herein as a “Party” and...
REPRESENTATIONS AND WARRANTIES OF DMY AND MERGER SUB. Except as disclosed in (a) dMY’s Disclosure Letter (subject to Section 8.13) and (b) the dMY SEC Documents filed with or furnished to the SEC prior to the date of this Agreement (to the extent the qualifying nature of such disclosure is readily apparent from the content of such dMY SEC Documents and excluding any disclosures in the “Risk Factors” or “Forward Looking Statements” sections that do not constitute statements of fact, disclosures in any forward-looking statements disclaimer and other disclosures that are generally of a predictive or cautionary nature or related to forward-looking in nature (it being acknowledged that nothing disclosed in such a dMY SEC Document will be deemed to modify or qualify the representations and warranties set forth in Section 4.1 (Organization; Authority; Enforceability) and Section 4.2 (Capitalization)), dMY and Merger Sub hereby represent and warrant to the Company as follows:
