FORWARD SHARE PURCHASE AGREEMENT

Exhibit 10.1

This Forward Share Purchase Agreement (this “Agreement”) is entered into as of October 25, 2022, by and among Ignyte Acquisition Corp., a Delaware corporation (“Ignyte”) and Frost Gamma Investments Trust (the “Investor”). Each of Ignyte and the Investor are individually referred to herein as a “Party” and collectively as the “Parties”.

Recitals

WHEREAS, Ignyte is a special purpose acquisition company, also known as a blank check company, 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;

WHEREAS, Ignyte has entered into a Business Combination Agreement, dated as of April 28, 2022 (the “Business Combination Agreement”), by and among Ignyte, Ignyte Korea Co., Ltd., a corporation organized under the laws of the Republic of Korea (“Korean Sub”) and Peak Bio Co., Ltd., a corporation organized under the laws of the Republic of Korea (“Peak Bio”), pursuant to which (i) the stockholders of Peak Bio will transfer their respective shares of common stock to Korean Sub in exchange for shares of Ignyte common stock held by Korean Sub, and (ii) in the course of such share swap, Korean Sub will distribute the shares of Peak Bio common stock to Ignyte in consideration of Ignyte common stock (which will in-turn be delivered to the stockholders of Peak Bio as described in (i) above (such share swap and the other transactions contemplated by the Business Combination Agreement, collectively, the “Business Combination”), and Ignyte will be re-named “Peak Bio, Inc.” upon the consummation of the Business Combination (Peak Bio, Inc., as the post-combination company shall be referred to herein as the “Company”), and Ignyte has filed a definitive proxy statement (the “Proxy Statement”) with the U.S. Securities and Exchange Commission (the “Commission”) in connection with the Business Combination; and

WHEREAS, the Parties wish to enter into this Agreement prior to the consummation of the Business Combination (the “Business Combination Closing Date”), pursuant to which the Company shall purchase from the Investor, and the Investor may sell and transfer to the Company, in each case, subject to the conditions set forth herein, certain shares of Common Stock (as defined herein) of Ignyte held by the Investor prior to the date hereof (the “Shares”) on the terms set forth herein.

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 agree as follows:

Agreement

1. Sale of Shares; Shares Purchase and Sale; Closing; Fees.

(a) Forward Share Purchase. Subject to the conditions set forth in Section 4, on the date that is sixty (60) days after the closing date of the Business Combination (the “Put Date”), the Investor may elect to sell and transfer to the Company, and the Company shall purchase from the Investor, up to that number of Shares that are then held by the Investor, but not to exceed 450,000 Shares in the aggregate unless otherwise agreed to in writing by all Parties, at a price per Share equal to $10.115 per Share (the “Shares Purchase Price”). The Investor shall notify the Company and the Escrow Agent (as defined herein) in writing three (3) Business Days (as defined herein) prior to the Put Date whether or not such Investor is exercising such Investor’s right to sell any of the Shares held by such Investor to the Company pursuant to this Agreement (each, a “Put Shares Sale Notice”).

(b) Shares Closing. If a Put Shares Sale Notice is delivered by any Investor to the Company and Escrow Agent, the closing of the sale of the Shares contemplated in each such delivered Put Share Sales Notice (the “Shares Closing”) shall occur no later than the Business Day after the Put Date. On the Put Date, each selling Investor shall deliver, or cause to be delivered, the Shares subject to the applicable Put Shares Sale Notice free and clear of all liens and encumbrances to Escrow Agent and, in exchange therefor, the

Escrow Agent shall deliver to each such selling Investor(s) an amount equal to (i) the Shares Purchase Price multiplied by (ii) the number of Shares being sold by such selling Investor to the Company (with respect to any particular selling Investor, the “Investor Shares Purchase Price”), which shall be paid by wire transfer of immediately available funds from the Escrow Account. The Escrow Agent shall, (i) without delay, release from the Escrow Account to each selling Investor on the Put Date, for such selling Investor’s use without restriction, an amount equal to the applicable Investor Shares Purchase Price, and (ii) promptly deliver such sold Shares to the Company.

2. Representations and Warranties of the Investor. The Investor represents and warrants to Ignyte and the Company, severally and not jointly, as of the date hereof:

(a) Organization and Power. Such Investor is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation and has all requisite power and authority to carry on its business as presently conducted and as proposed to be conducted.

(b) Authorization. Such Investor has full power and authority to enter into this Agreement. This Agreement, when executed and delivered by such Investor will constitute the valid and legally binding obligation of such Investor enforceable against it in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors’ rights generally, or (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies ((i) and (ii) collectively, the “Enforceability Exceptions”).

(c) Governmental Consents and Filings. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the part of such Investor in connection with the consummation of the transactions contemplated by this Agreement (collectively, the “Transactions”) other than disclosure reports regarding such transactions that such Investor is required to file in accordance with the terms of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”).

(d) Compliance with Other Instruments. The execution, delivery and performance by such Investor of this Agreement and the consummation by such Investor of the Transactions will not result in any violation or default (i) of any provisions of its organizational documents, (ii) of any instrument, judgment, order, writ or decree to which it is a party or by which it is bound, (iii) under any note, indenture or mortgage to which it is a party or by which it is bound, (iv) under any lease, agreement, contract or purchase order to which it is a party or by which it is bound, or (v) of any provision of federal or state statute, rule or regulation applicable to it, in each case (other than clause (i)), which would have a material adverse effect on such Investor or its ability to consummate the Transactions.

(e) Disclosure of Information. Such Investor has had an opportunity to discuss Xxxxxx’s and the Company’s business, management and financial affairs, and the terms and conditions of this Agreement, as well as the terms of the Business Combination, with Ignyte’s management.

(f) No Other Representations and Warranties; Non-Reliance. Except for the specific representations and warranties contained in this Section 2 and in any certificate or written agreement delivered pursuant hereto, neither any Investor nor any person acting on behalf of such Investor nor any of such Investor’s affiliates (collectively, the “Investor Parties”) has made, makes or shall be deemed to make any other express or implied representation or warranty with respect to such Investor, and the Investor Parties disclaim any such representation or warranty. Except for the specific representations and warranties expressly made by Ignyte in Section 3 of this Agreement, in any certificate or written agreement delivered pursuant hereto and in any public filings, the Investor Parties specifically disclaim that they are relying upon any other representations or warranties that may have been made by the Ignyte Parties (as defined below).

3. Representations and Warranties of Ignyte. Xxxxxx represents and warrants to each Investor as follows:

(a) Organization and Corporate Power. Ignyte is a corporation duly formed, validly existing and in good standing under the laws of Delaware and has all requisite corporate power and authority to carry on its business as presently conducted and as proposed to be conducted.

(b) Authorization. All corporate action required to be taken in order for Ignyte to execute, deliver and perform its obligations under this Agreement and to consummate the Transactions has been taken. This Agreement, when executed and delivered by Xxxxxx, shall constitute the valid and legally binding obligation of Ignyte, enforceable against Ignyte in accordance with its term, subject to the effect of the Enforceability Exceptions. No vote of the holders of any class or series of capital stock of Ignyte is necessary to approve and adopt this Agreement or consummate the Transactions.

(c) Disclosure. Ignyte has not disclosed to either Investor material non-public information with respect to Ignyte or the Business Combination, other than any such information that shall be publicly disclosed by Ignyte either by the issuance of a press release or the filing with the Commission a Current Report on Form 8-K, in each case, by 9:00 a.m., Eastern Time on the first Business Day immediately following the date that the Parties enter into this Agreement. Such public disclosure shall disclose the name of the Investor as having entered into the Agreement.

(d) Governmental Consents and Filings. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the part of Ignyte in connection with the consummation of the Transactions, other than disclosure reports regarding such transactions Ignyte is required to file in accordance with the terms of the Exchange Act.

(e) Compliance with Other Instruments. The execution, delivery and performance by Ignyte of this Agreement and the consummation by Ignyte of the Transactions will not result in any violation or default (i) of any provisions of its organizational documents, (ii) of any instrument, judgment, order, writ or decree to which it is a party or by which it is bound, (iii) under any note, indenture or mortgage to which it is a party or by which it is bound, (iv) under any lease, agreement, contract or purchase order to which it is a party or by which it is bound, or (v) of any provision of federal or state statute, rule or regulation applicable to it, in each case (other than clause (i)), which would have a material adverse effect on Ignyte or its ability to consummate the Transactions.

(f) Adequacy of Funds. The Company will have available to it sufficient funds to satisfy its obligations under this Agreement. The Company will be solvent after giving effect to the Transactions, will be able to pay its debts and liabilities, contingent or otherwise, as they become due and will not be left with unreasonably small capital with which to operate its business as conducted and as proposed to be conducted as outlined in its public filings

(g) SEC Filings. None of Xxxxxx’s reports and other filings with the Commission, as of their respective dates, contained 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 light of the circumstances under which they were made, not misleading. There are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of Ignyte’s reports filed with the Commission.

(h) No Other Representations and Warranties; Non-Reliance. Except for the specific representations and warranties contained in this Section 3 and in any certificate or written agreement delivered pursuant hereto or in any public filings, neither Ignyte or any person on behalf of Ignyte nor any of Ignyte’s affiliates (collectively, the “Ignyte Parties”) has made, makes or shall be deemed to make any other express or implied representation or warranty with respect to Ignyte, the Company, the Transactions or the Business Combination, and the Ignyte Parties disclaim any such representation or warranty. Except for the specific representations and warranties expressly made by the Investor in Section 2 of this Agreement and in any certificate or agreement delivered pursuant hereto, the Ignyte Parties specifically disclaim that they are relying upon any other representations or warranties that may have been made by the Investor Parties.

4. Additional Agreements.

(a) No Redemptions; No Tenders. Each Investor agrees not to, with respect to the Shares, (i) request redemption of any of the Shares in conjunction with the closing of the Business Combination, or (ii) tender the Shares to Ignyte in response to any redemption or tender offer that Ignyte may commence for its shares of common stock, par value $0.0001 per share (the “Common Stock”).

(i) Simultaneously with the closing of the Business Combination, Ignyte shall deposit, for good and valuable consideration, the receipt, sufficiency and adequacy of which Ignyte hereby acknowledges, into an escrow account (the “Escrow Account”) with Continental Stock Transfer & Trust Company (the “Escrow Agent”), subject to the terms of a written escrow agreement (the “Escrow Agreement”) substantially in the form attached as Exhibit A hereto (with any customary changes as reasonably requested by the Escrow Agent) and to be entered into on or prior to the Business Combination Closing Date, an amount equal to the Shares Purchase Price multiplied by the number of Shares held by the Investor as of the closing of the Business Combination (the “Escrowed Funds”). The payments to be made by the Escrow Agent to the Investor in accordance with Section 1 or to the Company in accordance with this Section 4(c), as applicable, will be made solely with the Escrowed Funds.

(ii) In the event that the Investor elects not to sell on the Put Date to the Company any Shares then held by such Investor, the Company may promptly issue instructions to the Escrow Agent to release from the Escrow Account to the Company for the Company’s use without restriction an amount equal to (x) the Shares Purchase Price multiplied by (y) the number of Shares such Investor so elects not to sell to the Company.

(e) Notification. Ignyte shall promptly notify the Investor of the occurrence of any event that would make any of the representations and warranties of Ignyte set forth in Section 3 untrue or incorrect at any time between the date of this Agreement and the Put Date.

(f) Security Agreement in Escrow Account. To secure the obligations of Ignyte and the Company under this Agreement, Ignyte and the Company each grant to the Investor a security interest in, and lien on, all right, title, and interest of Ignyte and the Company in and to the Escrow Account in respect of all funds required to satisfy Ignyte’s and the Company’s obligations hereunder, the Escrow Agreement, all rights related thereto, and all proceeds, products, and profits of the foregoing. In the event of a default by Ignyte or the Company under this Agreement or the Escrow Agreement, then, in addition to any other rights the Investor may have under this Agreement, the Escrow Agreement, and applicable law, the Investor shall also have the rights and remedies of a secured party under the Uniform Commercial Code as enacted in the State of New York.

(g) Indemnification. Xxxxxx (referred to as the “Indemnitor”) agrees to indemnify the Investor and its officers, directors, employees, agents and shareholders (collectively referred to as the “Indemnitees”) against, and hold them harmless of and from, any and all loss, liability, cost, damage and expense, including without limitation, reasonable and documented out-of-pocket outside counsel fees, which the Indemnitees may suffer or incur by reason of any action, claim or proceeding, in each case, brought by a securities holder, subscriber for securities or third party creditor of Ignyte, the Company or any of their respective subsidiaries asserting that the Investor are not entitled to receive the aggregate Share Purchase Price or such portion thereof as they are entitled to receive pursuant to Section 1(a) of this Agreement, in each case unless such action, claim or proceeding is the result of the fraud, bad faith, willful misconduct or gross negligence of any Indemnitee.

5. Closing Conditions. The obligation of the Company to purchase the Shares at the Shares Closing under this Agreement shall be subject in all respects to the consummation of the Business Combination and such Shares being free and clear of all liens and other encumbrances as of the Put Date.

6. Termination. This Agreement may be terminated as follows:

(a) at any time by mutual written consent of all Parties;

(b) at the election of the Investor if the stockholders of Ignyte fail to approve the Business Combination before November 1, 2022;

(c) by the Investor if all of the Parties and Continental Stock Transfer & Trust Company have not executed the Escrow Agreement prior to the Business Combination Closing Date.

In the event of termination in accordance with this Section 6, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of the Investor, Ignyte or the Company and their respective directors, officers, employees, partners, managers, members, or stockholders and, except as otherwise provided in this Agreement, all rights and obligations of each Party shall immediately cease; provided, however, that nothing contained in this Section 6 shall relieve any Party from liabilities or damages arising out of any actual fraud or willful breach by such party of any of its representations, warranties, covenants or agreements contained in this Agreement prior to termination of this Agreement.

7. General Provisions.

(a) Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt, or (i) personal delivery to the Party to be notified, (ii) when sent, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next Business Day, (iii) five (5) Business Days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) Business Day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next Business Day delivery, with written verification of receipt. All notices and other communications sent to a Party shall be sent to the e-mail address or address as set forth on the signature page of such Party hereto, or to such e-mail address or address as subsequently modified by written notice given by such Party in accordance with this Section 7(a).

(b) No Finder’s Fees. Except as provided in Section 2 of this Agreement, each Party represents that it neither is nor will be obligated for any finder’s fee or commission in connection with the Transactions. Each Investor agrees to indemnify and to hold harmless Ignyte from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of the Transactions (and the costs and expenses of defending against such liability or asserted liability) for which the Investor, or any of its officers, employees or representatives is responsible or arising out of any agreement entered into by any such person or entity. Xxxxxx agrees to indemnify and hold harmless the Investor from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of the Transactions (and the costs and expenses of defending against such liability or asserted liability) for which Ignyte or any of its officers, employees or representatives is responsible or arising out of any agreement entered into by any such person or entity.

(c) Survival of Representations and Warranties. All of the representations and warranties contained herein shall survive the Shares Closing.

(d) Entire Agreement. This Agreement, together with any documents, instruments and writings that are delivered pursuant hereto or referenced herein, constitute the entire agreement and understanding of the Parties in respect of its subject matter and supersedes all prior understandings, agreements, or representations by or among the Parties, written or oral, to the extent they relate in any way to the subject matter hereof or to the Transactions.

(e) Successors. All of the terms, agreements, covenants, representations, warranties, and conditions of this Agreement are binding upon, and inure to the benefit of and are enforceable by, the Parties and their respective successors. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the Parties or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

(f) Assignments. Except as otherwise specifically provided herein, no Party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the each of the other Parties.

(g) Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. Signatures sent by facsimile transmission or in PDF format shall be deemed to be originals for all purposes of this Agreement.

(h) Headings. The section headings contained in this Agreement are inserted for convenience only and will not affect in any way the meaning or interpretation of this Agreement.

(i) Governing Law; Jurisdiction. This Agreement, the entire relationship of the Parties, and any litigation among the Parties (whether grounded in contract, tort, statute, law or equity) shall be governed by, construed in accordance with, and interpreted pursuant to the laws of the State of Delaware, without giving effect to its choice of laws or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. Any dispute arising from or relating to the relative rights of the parties hereto and all other questions concerning the construction, validity and interpretation of this Agreement, shall be brought exclusively in the Court of Chancery of the State of Delaware (the “Court of Chancery”) or, to the extent the Court of Chancery does not have subject matter jurisdiction, the United States District Court for the District of Delaware and the appellate courts having jurisdiction of appeals in such courts (the “Delaware Federal Court”) or, to the extent neither the Court of Chancery nor the Delaware Federal Court has subject matter jurisdiction, the Superior Court of the State of Delaware (the “Chosen Courts”), and, solely with respect to any such action (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action in the Chosen Courts, and (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto.

(j) MUTUAL WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, 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 AND/OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(k) Amendments. This Agreement may not be amended, modified or waived as to any particular provision, except with the prior written consent of all Parties.

(l) Severability. The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof; provided that if any provision of this Agreement, as applied to any Party or to any circumstance, is adjudged by a governmental authority, arbitrator, or mediator not to be enforceable in accordance with its terms, the Parties agree that the governmental authority, arbitrator, or mediator making such determination will have the power to modify the provision in a manner consistent with its objectives such that it is enforceable, and/or to delete specific words or phrases, and in its reduced form, such provision will then be enforceable and will be enforced.

(m) Expenses. Ignyte shall pay the reasonable and documented out-of-pocket fees and expenses of the Investor, including but not limited to expenses of legal counsel to the Investor, as agreed by the Parties via written agreement and the Company shall be responsible for all fees associated with the Escrow Account. For the avoidance of doubt, Xxxxxx shall reimburse all reasonable and necessary brokerage commission incurred with the Investor acquisition of Shares, in an amount not to exceed $0.03 per Share.

(n) Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If 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 because of the authorship of any provision of this Agreement. For purposes of this Agreement, “Business Day” means any day other than Saturday, Sunday, or a day on which commercial banks in New York are obligated by any applicable law to close. Any reference to any federal, state, local, or foreign law will be deemed also to refer to law as amended and all rules and regulations promulgated thereunder, unless the context requires otherwise. 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 intend that each representation, warranty, and covenant contained herein will have independent significance. If a Party 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 has not breached will not detract from or mitigate the fact that such party is in breach of the first representation, warranty, or covenant.

(o) Waiver. No waiver by a Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, may be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising because of any prior or subsequent occurrence.

(p) Specific Performance. Each Party agrees that irreparable damage may occur in the event any provision of this Agreement was not performed by any other Party in accordance with the terms hereof and that the other Parties shall be entitled to seek specific performance of the terms hereof, in addition to any other remedy at law or equity.

(q) Rule 10b5-1.

i. The Company represents and warrants to the Investor that Company is not entering into this Agreement to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) for the purpose of inducing the purchase or sale of such securities or otherwise in violation of the Exchange Act, and the Company represents and warrants to the Investor that the Company has not entered into or altered, and agrees that the Company will not enter into or alter, any corresponding or hedging transaction or position with respect to the Shares. The Company acknowledges that it is the intent of the parties that this Agreement comply with the requirements of paragraphs (c)(1)(i)(A) and (B) of Rule 10b5-1 under the Exchange Act (“Rule 10b5-1”) and this Agreement shall be interpreted to comply with the requirements of Rule 10b5-1(c).

ii. The Company agrees that it will not seek to control or influence the Investor’s decision to make any “purchases or sales” (within the meaning of Rule 10b5-1(c)(1)(i)(B)(3)) under this Agreement, including, without limitation, the Investor decision to enter into any hedging transactions. The Investor represents and warrants that it has consulted with its own advisors as to the legal aspects of its adoption and implementation of this Agreement under Rule 10b5-1.

iii. The Company acknowledges and agrees that any amendment, modification, waiver or termination of this Agreement must be effected in accordance with the requirements for the amendment or termination of a “plan” as defined in Rule 10b5-1(c). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any such amendment, modification, waiver or termination shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5, and no such amendment, modification or waiver shall be made at any time at which the Company or any officer, director, manager or similar person of the Company is aware of any material non-public information regarding the Company or the Shares.

[Signature page follows]

IN WITNESS WHEREOF, the undersigned have executed this Agreement to be effective as of the date first set forth above.


INVESTOR: Frost Gamma Investments Trust

By:		/s/ Xxxxxxx Xxxxx, M.D.
Name:		Xxxxxxx Xxxxx, M.D.
Title:		Trustee

Address for Notices:

0000 Xxxxxxxx Xxxx,

Xxxxx, XX 00000


IGNYTE:

Ignyte Acquisition Corp.

By:		/s/ Xxxxxx Xxxxxx
Name:		Xxxxxx Xxxxxx
Title:		Chief Financial Officer

Address for Notices:

000 Xxxxx Xxxxxx, 0xx Xxxxx

Xxx Xxxx, XX 00000

Email: xxxxxxx@xxxxxxxxxx.xxx

Exhibit A

Form of Escrow Agreement

(attached hereto)

FORM OF ESCROW AGREEMENT

This ESCROW AGREEMENT (this “Agreement”) made as of October [ ], 2022, by and among Ignyte Acquisition Corp., a Delaware corporation (“Ignyte”), Continental Stock Transfer & Trust Company, 0 Xxxxx Xxxxxx, 00^xx Xxxxx, Xxx Xxxx, XX 00000 (the “Escrow Agent”) and Frost Gamma Investments Trust (the “Investor”).

WITNESSETH:

WHEREAS, by and among Ignyte, Ignyte Korea Co., Ltd., a corporation organized under the laws of the Republic of Korea (“Korean Sub”) and Peak Bio Co., Ltd., a corporation organized under the laws of the Republic of Korea (“Peak Bio”), pursuant to which (i) the stockholders of Peak Bio will transfer their respective shares of common stock to Korean Sub in exchange for shares of Ignyte common stock held by Korean Sub, and (ii) in the course of such share swap, Korean Sub will distribute the shares of Peak Bio common stock to Ignyte in consideration of Ignyte common stock (which will in-turn be delivered to the stockholders of Peak Bio as described in (i) above (such share swap and the other transactions contemplated by the Business Combination Agreement, collectively, the “Business Combination”), and Ignyte will be re-named “Peak Bio, Inc.” upon the consummation of the Business Combination (Peak Bio, Inc., as the post-combination company shall be referred to herein as the “Company”), and Ignyte has filed a definitive proxy statement (the “Proxy Statement”) with the U.S. Securities and Exchange Commission (the “Commission”) in connection with the Business Combination;

WHEREAS, Xxxxxx has entered into that certain Forward Share Purchase Agreement, dated as of October 25, 2022 (as amended from time to time, the “Purchase Agreement”), with the Investor, pursuant to which the Investor may elect to sell and transfer to the Company shares of Common Stock, par value $0.0001 per share, of Ignyte (the “Shares”) that are held by the Investor on the date that is sixty (60) days after the closing date of the Business Combination (the “Put Date”), at a price per share of $10.115 (the “Shares Purchase Price”) and may otherwise be entitled to payments from the Company, all on the terms and conditions set forth in the Purchase Agreement;

WHEREAS, Ignyte desires to establish an escrow account (the “Escrow Account”), into which, on the Business Combination Closing Date (as defined in the Purchase Agreement), Ignyte II shall deposit, or cause to be deposited, for good and valuable consideration, the receipt, sufficiency and adequacy of which Ignyte hereby acknowledges, an amount equal to $4,551,750 (or such lesser amount as is provided for by Section 4(c) of the Purchase Agreement) (the “Escrowed Funds”), and the Escrow Agent is willing to establish the Escrow Account on the terms and subject to the conditions hereinafter set forth;

WHEREAS, the Escrowed Funds deposited into the Escrow Account are the funds of the Investor, and the parties hereto intend that, until the Escrowed Funds are released pursuant to this Agreement and the Purchase Agreement, the Escrowed Funds are not, and shall not become under any circumstances, property of the Company or Ignyte, it being understood and acknowledged that the Escrowed Funds are to be held by the Escrow Agent in trust for the exclusive benefit of the Investor; and

WHEREAS, the Escrow Agent has agreed to establish a bank account (the “Bank Account”) at [ ] (the “Bank”) and an investment account (the “Investment Account”) at a brokerage institution (the “Broker”) selected by the Escrow Agent and bearing the designation set forth on the Information Sheet (as defined herein), into which the Escrowed Funds are to be deposited.

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:

1. Information Sheet. The recitals to this Agreement and the information set forth on the information sheet which is attached to this Agreement as Exhibit A (the “Information Sheet”) are incorporated by reference herein and made a part hereof.

2. Establishment of the Bank Account. The Escrow Agent shall establish the Bank Account at the branch of the Bank and an Investment Account at the Broker selected by the Escrow Agent. The Escrow Agent, in a timely manner shall invest and reinvest the Escrowed Funds in any open ended investment company registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”) that holds itself out as a money market fund selected by the Company and meeting the conditions of paragraphs (d)(2), (d)(3) and (d)(4) of Rule 2a-7 promulgated under the Investment Company Act or any successor rule, which invests only in direct U.S. government treasury obligations, as determined by the Company. The Escrow Agent may not invest in any other securities or assets, and while the Escrow Funds are invested or uninvested, the Escrow Agent may earn bank credits or other consideration. The purpose of the Bank Account and the Investment Account is for (a) the deposit of the Escrowed Funds for the exclusive benefit of the Investor, and (b) the disbursement of the Escrowed Funds, all as described herein.

3. Deposits to the Bank Account. Simultaneously with the closing of the Business Combination, Ignyte shall deposit an amount equal to the Escrowed Funds, from Ignyte’s Trust Account (as defined in the Trust Agreement (defined below), the “Trust Account”) with the Escrow Agent as designated in the Ignyte’s Trust Account closing funds flow statement into the Escrow Account, in accordance with the terms of the Purchase Agreement and the Investment Management Trust Agreement, dated January 27, 2021, by and between Ignyte and the Escrow Agent, as trustee thereunder (“Trust Agreement”). If the amount of money in the Trust Account remaining after paying redemptions to Ignyte public stockholders is less than the Escrowed Funds, the Company shall transfer to the Escrow Agent an amount equal to the Escrowed Funds minus the funds remaining in the Trust Account after paying redemptions. For the avoidance of doubt, the amount transferred pursuant to this section was property of Ignyte and upon transfer will be for the exclusive benefit of the Investor, subject to the terms and conditions of this Agreement and the Purchase Agreement.

4. Disbursement from the Escrow Account.

4.1 Concurrently with an Investor’s electronic delivery of Shares to the Escrow Agent by Deposit/Withdrawal at Custodian (DWAC) and the delivery of written instructions confirming the delivery of Shares to the Escrow Agent on the Put Date pursuant to Section 1(b) of the Purchase Agreement, the Escrow Agent shall (a) release to the Investor from the Escrowed Funds an amount equal to the Shares Purchase Price multiplied by the number of Shares delivered by such Investor to the Escrow Agent on the Put Date, (b) promptly disburse such amount without any fees or setoffs and (c) promptly deliver to the Company all such Shares delivered by the Investor to the Escrow Agent. If the Investor fails to deliver a Put Share Sales Notice (as defined in the Purchase Agreement) to the Company and the Escrow Agent three (3) Business Days prior to the Put Date in accordance with Section 1(a) of the Purchase Agreement, the Escrow Agent shall on the Put Date release to the Company from the Escrowed Funds an aggregate amount equal to the Shares Purchase Price multiplied by the number of Shares held by such Investor on the Put Date. In the event that the Investor notifies the Escrow Agent that an Investor does not intend to exercise such Investor’s right to sell any of its Shares to the Company pursuant to Section 1(b) of the Purchase Agreement, then, the Escrow Agent shall release to the Company for the Company’s use without restriction an amount equal to the number of Shares held by such non-selling Investor multiplied by the Shares Purchase Price, and the Escrow Agent shall promptly disburse such Escrowed Funds in accordance with the payment instructions provided by the Company. The Escrow Agent shall have no duty to look beyond the instructions provided by the Investor in order to confirm the number of Shares held or sold. At any time after the date that is three (3) Business Days prior to the Put Date, the Company may deliver written instructions to the Escrow Agent to release to the Company all remaining Escrowed Funds in the Escrow Account after release to the Investor of the Investor Shares Purchase Price (as such term is defined in the Purchase Agreement) in respect of all Shares (x) identified in the Put Shares Sale Notice and (y) that are timely delivered to the Company in accordance with Section 1(a) of the Purchase Agreement and that are properly delivered to the Company on the Put Date in accordance with Section 1(b) of the Purchase Agreement.

4.2 Upon disbursement of the total of the Escrowed Funds pursuant to the terms of this Section 4, the Escrow Agent shall be relieved of further obligations and released from all liability under this Agreement. It is expressly agreed and understood that in no event shall the aggregate amount of payments made by the Escrow Agent exceed the amount of the Escrowed Funds.

5. Rights, Duties and Responsibilities of Escrow Agent. It is understood and agreed that the duties of the Escrow Agent are purely ministerial in nature, and that:

5.1 The Escrow Agent shall not be responsible for or be required to enforce any of the terms or conditions of the Purchase Agreement or any other agreement between the Investor and Ignyte (or the Company), nor shall the Escrow Agent be responsible for the performance by Xxxxxx, the Company, or the Investor of their respective obligations under this Agreement.

5.2 The Escrow Agent shall be entitled to rely upon the accuracy, and act in reliance upon the contents, of any notice, instruction, certificate, signature, instrument or other document which is given to the Escrow Agent pursuant to this Agreement that is believed by the Escrow Agent to be genuine, without the necessity of the Escrow Agent verifying the truth or accuracy thereof. The Escrow Agent shall not be obligated to make any inquiry as to the authority, capacity, existence or identity of any person purporting to give any such notice or instructions or to execute any such certificate, instrument or other document. For the avoidance of doubt, this Section shall not prevent any liability of the Escrow Agent for acts of willful misconduct or gross negligence as described in Section 5.4 herein.

5.3 If the Escrow Agent is uncertain as to its duties or rights hereunder or shall receive instructions with respect to the Bank Account or the Escrowed Funds which, in its sole determination, are in conflict either with other instructions received by it or with any provision of this Agreement, it shall be entitled to hold the Escrowed Funds, or a portion thereof, in the Bank Account pending the resolution of such uncertainty to the Escrow Agent’s reasonable satisfaction.

5.4 The Escrow Agent shall not be liable for any action taken or omitted hereunder, or for the misconduct of any employee, agent or attorney appointed by it, except in the case of willful misconduct or gross negligence. The Escrow Agent shall be entitled to consult with counsel of its own choosing and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.

5.5 The Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Escrowed Funds or any part thereof.

6. Amendment; Resignation or Removal of Escrow Agent. This Agreement may be altered or amended only pursuant to a written instrument, referencing this Section 6, signed by all parties hereto. The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving written notice of such resignation to (i) Ignyte (if the resignation occurs prior to the closing of the Business Combination) or the Company (if the resignation occurs after the closing of the Business Combination) and (ii) the Investor specifying a date when such resignation shall take effect and upon delivery of the Escrowed Funds to the successor escrow agent designated by the Investor in writing. Such successor Xxxxxx Agent shall become the Escrow Agent hereunder upon the resignation date specified in such notice. The Escrow Agent shall continue to serve until its successor accepts the escrow and receives the Escrowed Funds. The Investor shall have the right at any time to remove the Escrow Agent and substitute a new escrow agent by giving written notice thereof to the Escrow Agent then acting, and Ignyte or the Company, as applicable. Upon its resignation and delivery of the Escrowed Funds as set forth in this Section 6, the Escrow Agent shall be discharged of and from any and all further obligations arising in connection with the escrow contemplated by this Agreement. Without limiting the provisions of Section 8 hereof, the resigning Escrow Agent shall be entitled to be reimbursed by Xxxxxx or the Company, as applicable, for any expenses incurred in connection with its resignation, transfer of the Escrowed Funds to a successor escrow agent or distribution of the Escrowed Funds pursuant to this Section 6.

7. Representations and Warranties. Ignyte hereby represents and warrants to the Escrow Agent and the Investor that:

7.1 No party other than the parties hereto have or shall have, any lien, claim or security interest in the Escrowed Funds or any part thereof.

7.2 To Ignyte’s knowledge, no financing statement under the Uniform Commercial Code or otherwise is on file in any jurisdiction claiming a lien on, security interest in or describing (whether specifically or generally) the Escrowed Funds or any part thereof.

7.3 All of the information contained in the Information Sheet is, as of the date hereof, and will be, at the time of any disbursement of the Escrowed Funds, true and correct.

7.4 Reasonable controls have been established and required due diligence performed to comply with “Know Your Customer” regulations, USA Patriot Act, Office of Foreign Asset Control (OFAC) regulations and the Bank Secrecy Act.

8. Fees and Expenses. The Escrow Agent shall be entitled to the Escrow Agent Fees set forth on the Information Sheet, payable as and when stated therein by Ignyte (or the Company). For the avoidance of doubt, under no circumstances shall the Investor be responsible to pay any portion of such Escrow Agent Fees.

9. Indemnification and Contribution.

9.1 Subject to Section 18, Ignyte (referred to solely for purposes of this Section 9.1 as the “Indemnitor”) agrees to indemnify the Escrow Agent and its officers, directors, employees, agents and shareholders (collectively referred to solely for purposes of this Section 9.1 as the “Indemnitees”) against, and hold them harmless of and from, any and all loss, liability, cost, damage and expense, including without limitation, reasonable counsel fees, which the Indemnitees may suffer or incur by reason of any action, claim or proceeding brought against the Indemnitees arising out of or relating in any way to this Agreement or any transaction to which this Agreement relates, unless such action, claim or proceeding is the result of the fraud, willful misconduct or gross negligence of the Indemnitees.

9.2 Subject to Section 18, Ignyte and the Company (collectively referred to solely for purposes of this Section 9.2 as the “Indemnitor”) agrees to indemnify the Investor and its respective officers, directors, employees, agents and shareholders (collectively referred to solely for purposes of this Section 9.2 as the “Indemnitees”) against, and hold them harmless of and from, any and all loss, liability, cost, damage and expense, including without limitation, reasonable and documented out-of-pocket outside counsel fees, which the Indemnitees may suffer or incur by reason of any action, claim or proceeding, in each case, brought by a third party creditor of Ignyte, the Company or any of their respective subsidiaries against the Indemnitees arising out of or relating in any way to the disbursement of any portion of the Escrowed Funds to the Investor in accordance with the terms of this Agreement, unless such action, claim or proceeding is the result of the fraud, willful misconduct or gross negligence of any Indemnitee.

9.3 If the indemnification provided for in Section 9.1 or Section 9.2 is applicable, but for any reason is held to be unavailable, the Indemnitor, alone, shall contribute such amounts as are just and equitable to pay, or to reimburse the Indemnitees for, the aggregate of any and all losses, liabilities, costs, damages and expenses, including counsel fees, actually incurred by the Indemnitees (as defined in such applicable Section) as a result of or in connection with, and any amount paid in settlement of, any action, claim or proceeding arising out of or relating in any way to any actions or omissions of the Indemnitors.

9.4 The provisions of this Section 9 shall survive any termination of this Agreement, whether by disbursement of the Escrowed Funds, resignation of the Escrow Agent or otherwise.

10. In the event that Ignyte (or the Company) file a petition with any bankruptcy court or be the subject of any petition (a “Bankruptcy Event”) filed under 11 U.S.C. § 101 et seq. (the “Bankruptcy Code”), Ignyte (or the Company) acknowledges and agrees that the Escrowed Funds in the Escrow Account are the exclusive property of the Investor and shall not constitute property of the bankruptcy estate of Ignyte (or the Company), within the meaning of § 541 of the Bankruptcy Code. In the event that, notwithstanding the foregoing, a bankruptcy court shall determine that Ignyte (or the Company) has a continuing right, title or interest in or to the Escrow Fund in the Escrow Account, and that all or any portion of the Escrowed Funds are property of the bankruptcy estate, Ignyte (or the Company) hereby, for itself and on behalf of the Company, acknowledges and agrees that all such Escrowed Funds in the Escrow Account shall constitute the Investor’s “cash collateral” within the meaning of §§ 361 and 363 of the Bankruptcy

Code. Ignyte (or the Company) further acknowledges that in such event, the Investor does not consent to Ignyte’s (or the Company’s) use of such cash collateral, and that Ignyte (or the Company) shall have no right to use or apply any amount of such cash collateral unless and until (i) Ignyte (or the Company) shall have received a bankruptcy court order authorizing use of the same and (ii) the Investor shall have been provided with “adequate protection” of their interests in the Escrowed Funds in the Escrow Account, within the meaning of §§ 361 and 363 of the Bankruptcy Code. Ignyte (or the Company), for itself and on behalf of the Company, hereby releases all power of dominion and control over the Escrowed Funds in the Escrow Account and acknowledges that it shall not have access to the Escrowed Funds in the Escrow Account, except as specifically provided in this Agreement. Ignyte (or the Company), for itself and on behalf of the Company, agrees that neither Xxxxxx nor the Company will take any position at any time prior to or after a Bankruptcy Event that all or any portion of the Escrow Funds are property of their respective bankruptcy estates. Ignyte (or the Company), for itself and on behalf of the Company, further agrees that its employees and representatives will not assist a bankruptcy trustee, creditors’ committee or other estate representative in any bankruptcy case or proceeding in efforts to establish that the Escrowed Funds are property of the bankruptcy estate of either Ignyte or the Company. For the avoidance of doubt, Ignyte (or the Company), for itself and on behalf of the Company, agrees and acknowledges that (i) the Escrow Agent shall hold the Escrowed Funds in trust for the benefit of the Investor pending the release of such Escrowed Funds in strict accordance with this Agreement and (ii) Ignyte deposited the Escrowed Funds in the Escrow Account for good and valuable consideration.

11. Termination of Agreement. This Agreement shall terminate on the earlier of the termination of the Purchase Agreement and the final disposition of the Escrowed Funds pursuant to Section 4, provided that the rights of the Escrow Agent and the obligations of the other parties hereto under Section 9 shall survive the termination hereof and the resignation or removal of the Escrow Agent.

12. Governing Law and Assignment. This Agreement shall be construed in accordance with and governed by the laws of the State of New York, without regard to the conflicts of laws principles thereof, and shall be binding, upon the parties hereto and their respective successors and assigns; provided, however, that any assignment or transfer by any party of its rights under this Agreement or with respect to the Escrowed Funds shall be void as against the Escrow Agent unless (a) written notice thereof shall be given to the Escrow Agent; and (b) the Escrow Agent shall have consented in writing to such assignment or transfer.

13. Notices. All notices required to be given in connection with this Agreement shall be sent by registered or certified mail, return receipt requested, or by hand delivery with receipt acknowledged, or by an Express Mail service, and addressed, if to the Company, at its address set forth on the Information Sheet, if to the Escrow Agent, at its address set forth on the Information Sheet, to the attention of the Trust Department, and if to the Investor, at its address included on its signature page hereto.

14. No Third Party Beneficiaries. Nothing in this Agreement or in any instruction or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any person that is not a party hereto or thereto or any successor or permitted assign of such a party.

15. Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be determined to be invalid or unenforceable, the remaining provisions of this Agreement or the application of such provision to persons or circumstances other than those to which it is held invalid or unenforceable shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law.

16 Execution in Several Counterparts. This Agreement may be executed in several counterparts or by separate instruments and by facsimile transmission or by electronic mail in “portable document format” (“.pdf”) and all of such counterparts and instruments shall constitute one agreement, binding on all of the parties hereto.

17. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings (written or oral) of the parties in connection therewith.

18. Waiver. The Escrow Agent has no right of set-off or any other right, title, interest or claim of any kind (“Claim”) in, or to any distribution of, the Trust Account (as defined in the Trust Agreement) and hereby agrees not

to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever. The Escrow Agent hereby waives any and all Claims against the Trust Account and any and all rights to seek access to the Trust Account.

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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first above written.


ESCROW AGENT:

CONTINENTAL STOCK TRANSFER & TRUST COMPANY

By:
		Name:
		Title:

IGNYTE:

IGNYTE ACQUISITION CORP.

By:
		Name:
		Title:

INVESTOR:

FROST GAMMA INVESTMENTS TRUST

By:
		Name: Xxxxxxx Xxxxx, M.D.
		Title: Trustee
Address for Notices:
0000 Xxxxxxxx Xxxx, Xxxxx, XX 00000

(Signature Page to Escrow Agreement)

EXHIBIT A

ESCROW AGREEMENT INFORMATION SHEET

1.	The Company:

Name: Peak Bio, Inc.

Tax Identification Number: [●]

2.	Title of Escrow Account:

Continental Stock Transfer & Trust Co. A/A/F Ignyte [ ] and [ ] Escrow

Wire to:

Bank Name: [●]

Address: [●]

ABA # [●]

SWIFT Code: [●]

A/C: Continental Stock Transfer & Trust Co. A/A/F Ignyte [ ] and [ ] Escrow

A/C NO.: [●]

3.	Escrow Agent Fees & Charges for an Investment Account:

$[●] Escrow Administration Services

$[●] Investment Account Services

4.	Addresses for Notices and Email:

Continental Stock Transfer & Trust

0 Xxxxx Xxxxxx 00xx Xxxxx

Xxx Xxxx, XX 00000-0000

Email: [ ]

Peak Bio, Inc.

0000 X Xxxxxxxx Xx., Xxxxx 000

Xxxx Xxxx, XX 00000

Attn.: Xxxxxxx XxXxxx

Email: xxxxx.xxxxxx@xxxx-xxx.xxx

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Table of Contents

FORWARD SHARE PURCHASE AGREEMENT

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