Exhibit 6.2
SERIES A-1 PREFERRED STOCK PURCHASE AGREEMENT
the parties have executed this Series A
THIS
SERIES A-1 PREFERRED STOCK PURCHASE AGREEMENT (this “Agreement”), is made as of is made as of March 10, 2023,
by and among Miso Robotics, Inc., a Delaware corporation (the “Company”) and the investors listed on Exhibit A
attached to this Agreement (each a “Purchaser” and together the “Purchasers”).
The parties hereby agree as follows:
1. Purchase
and Sale of Preferred Stock.
(a) The
Company shall have adopted and filed with the Secretary of State of the State of Delaware on or before the Initial Closing (as defined
below) the Certificate of Designation in the form of Exhibit B attached to this Agreement, as corrected by a Certificate of
Correction dated March 9, 2023 (the “Certificate of Designation” and together with the Company’s Eighth
Amended and Restated Certificate of Incorporation, the “Restated Certificate”).
(b) Subject
to the terms and conditions of this Agreement, each Purchaser agrees to purchase at the applicable Closing (as defined below) and the
Company agrees to sell and issue to each Purchaser at the applicable Closing that number of shares of Series A-1 Preferred Stock,
$0.0001 par value per share (the “Series A-1 Preferred Stock”), set forth opposite each Purchaser’s name
on Exhibit A, at a purchase price of $4.9745920 per share. The shares of Series A-1
Preferred Stock issued to the Purchasers pursuant to this Agreement shall be referred to in this Agreement as the “Shares.”
(a) The
initial purchase and sale of the Shares shall take place remotely via the exchange of documents and signatures, at 10:00 a.m., on March 10,
2023, or at such other time and place as the Company and the Purchasers mutually agree upon, orally or in writing (which time and place
are designated as the “Initial Closing”). In the event there is more than one closing, the term “Closing”
shall apply to each such closing unless otherwise specified.
(b) At
each Closing, the Company shall deliver to each Purchaser a certificate representing the Shares being purchased by such Purchaser at such
Closing, against payment of the purchase price therefor by check payable to the Company, by wire transfer to a bank account designated
by the Company, by cancellation or conversion of indebtedness or other convertible securities of the Company to Purchaser, or by any combination
of such methods.
(a) After
the Initial Closing, the Company may sell, on the same terms and conditions as those contained in this Agreement, up to 5,022,150 additional
shares (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or similar
recapitalization affecting such shares) of Series A-1
Preferred Stock (the “Additional Shares”), to one (1) or more purchasers mutually acceptable to the Company and
Ecolab Inc. (the “Additional Purchasers”), provided that (i) such subsequent sale is consummated prior
to one hundred twenty (120) days after the Initial Closing (ii) each Additional Purchaser becomes a party to the Transaction Agreements
(as defined below), by executing and delivering a counterpart signature page to each of the Transaction Agreements. Any Exhibit A
to this Agreement shall be updated to reflect the number of Additional Shares purchased at each such Closing and the parties purchasing
such Additional Shares.
1.4 Use
of Proceeds. In accordance with the directions of the Company’s Board of Directors, as it shall be constituted in accordance
with the Stockholders Agreement, the Company will use the proceeds from the sale of the Shares for product development and other general
corporate purposes.
1.5 Defined
Terms Used in this Agreement. In addition to the terms defined above, the following terms used in this Agreement shall be construed
to have the meanings set forth or referenced below.
(a) “Affiliate”
means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common
control with such Person, including, without limitation, any general partner, managing member, officer, director or trustee of such Person,
or any venture capital fund or registered investment company now or hereafter existing that is controlled by one (1) or more general
partners, managing members or investment advisers of, or shares the same management company or investment adviser with, such Person.
(b) “Code” means the Internal Revenue Code of 1986, as amended.
(c) “Company
Intellectual Property” means all patents, patent applications, registered and unregistered trademarks, trademark applications,
registered and unregistered service marks, service mark applications, tradenames, copyrights, trade secrets, domain names, mask works,
information and proprietary rights and processes, similar or other intellectual property rights, subject matter of any of the foregoing,
tangible embodiments of any of the foregoing, licenses in, to and under any of the foregoing, and in any and all such cases as are necessary
to the Company in the conduct of the Company’s business as now conducted and as presently proposed to be conducted.
(d) “Key
Employee” means any executive-level employee (including division director and vice president-level positions) as well as any
employee or consultant who either alone or in concert with others develops, invents, programs or designs any Company Intellectual Property.
(e) “Knowledge”
including the phrase “to the Company’s knowledge” shall mean Xxxxxxx Xxxx and Xxxx Xxxxxx and the knowledge such
Persons would have after reasonable investigation and assuming such knowledge as the individual would have as a result of the reasonable
performance of his or her duties in the ordinary course.
(f) “Material
Adverse Effect” means a material adverse effect on the business, assets (including intangible assets), liabilities, financial
condition, property, prospects or results of operations of the Company.
(g) “Person”
means any individual, corporation, partnership, trust, limited liability company, association or other entity.
(h) “Purchaser”
means each of the Purchasers who is initially a party to this Agreement and any Additional Purchaser who becomes a party to this Agreement
at a subsequent Closing under Section 1.2(b).
(i) “Registration
Rights Agreement” means the agreement among the Company and the Purchasers dated as of the date of the Initial Closing, in the
form of Exhibit D attached to this Agreement.
(j) “Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
(k) “Stockholders
Agreement” means the agreement among the Company, the Purchasers and certain other stockholders of the Company dated as of the
date of the Initial Closing, in the form of Exhibit E attached to this Agreement.
(l) “Transaction
Agreements” means this Agreement, the Registration Rights Agreement, and the Stockholders Agreement.
2. Representations
and Warranties of the Company. The Company hereby represents and warrants to each Purchaser that, except as set forth on the Disclosure
Schedule attached as Exhibit C to this Agreement, which exceptions shall be deemed to be part of the representations and warranties
made hereunder, the following representations are true and complete as of the date of the Initial Closing, except as otherwise indicated.
The Disclosure Schedule shall be arranged in sections corresponding to the numbered and lettered sections contained in this Section 2,
and the disclosures in any section of the Disclosure Schedule shall qualify other sections in this Section 2 only to the extent
it is readily apparent from a reading of the disclosure that such disclosure is applicable to such other sections.
2.1 Organization,
Good Standing, Corporate Power and Qualification. The Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as now conducted
and as presently proposed to be conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction
in which the failure to so qualify would have a Material Adverse Effect.
(a) The
authorized capital of the Company consists, immediately prior to the Initial Closing, of:
(i) 80,000,000
shares of common stock, $0.0001 par value per share (the “Common Stock”), 41,481,385 shares of which are issued and
outstanding immediately prior to the Initial Closing. All of the outstanding shares of Common Stock have been duly authorized, are fully
paid and nonassessable and were issued in compliance with all applicable federal and state securities laws. The Company holds no Common
Stock in its treasury.
(ii) 11,684,802
shares of Preferred Stock, of which 11,056,183 shares have been designated Series A-1 Preferred Stock, none of which are issued and
outstanding immediately prior to the Initial Closing. The rights, privileges and preferences of the Preferred Stock are as stated in the
Certificate of Designation and as provided by the Delaware General Corporation Law. The Company holds no Preferred Stock in its treasury.
(b) The
Company has reserved 11,333,616 shares of Common Stock for issuance to officers, directors, employees and consultants of the Company pursuant
to its 2017 Stock Plan and 2016 Stock Plan, each duly adopted by the Board of Directors and approved by the Company stockholders (collectively,
the “Stock Plan”). Of such reserved shares of Common Stock, 1,917,475 shares have been issued and are outstanding pursuant
to restricted stock purchase agreements, options to purchase 8,288,787 shares have been granted and are currently outstanding, and 1,127,354
shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. The
Company has furnished to the Purchasers complete and accurate copies of the Stock Plan and forms of agreements used thereunder.
(c) Section 2.2(c) of
the Disclosure Schedule sets forth the capitalization of the Company immediately following the Initial Closing including the number of
shares of the following: (i) issued and outstanding Common Stock, including, with respect to restricted Common Stock, vesting schedule
and repurchase price; (ii) outstanding stock options, including vesting schedule and exercise price; (iii) shares of Common
Stock reserved for future award grants under the Stock Plan; (iv) each series of Preferred Stock; and (v) warrants or stock
purchase rights, including the Warrant to Purchase Shares of Preferred Stock being issued to Ecolab pursuant to Section 4.12 hereof.
Except for (A) the conversion privileges of the Shares to be issued under this Agreement, (B) the rights provided in provided
in Sections 6 and 9 of the Stockholders Agreement, and (C) the securities and rights described in Sections 2.2(a)(ii) and
2.2(b) of this Agreement and Section 2.2(c) of the Disclosure Schedule, there are no outstanding options,
warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in
writing, to purchase or acquire from the Company any shares of Common Stock or Series A-1 Preferred Stock, or any securities convertible
into or exchangeable for shares of Common Stock or Series A-1 Preferred Stock. Except as set forth on Section 2.2(c) of
the Disclosure Schedule, all outstanding shares of the Company’s Common Stock and all shares of the Company’s Common Stock
underlying outstanding options are subject to (i) a right of first refusal in favor of the Company upon any proposed transfer (other
than transfers for estate planning purposes); and (ii) a lock-up or market standoff agreement of not less than one hundred eighty
(180) days following the Company’s initial public offering pursuant to a registration statement filed with the Securities and Exchange
Commission under the Securities Act.
(d) Except
as set forth on Section 2.2(d) of the Disclosure Schedule, none of the Company’s stock purchase agreements or stock option
documents contains a provision for acceleration of vesting (or lapse of a repurchase right) or other changes in the vesting provisions
or other terms of such agreement or understanding upon the occurrence of any event or combination of events, including, without limitation,
in the case where the Company’s Stock Plan is not assumed in an acquisition. The Company has never adjusted or amended the exercise
price of any stock options previously awarded, whether through amendment, cancellation, replacement grant, repricing, or any other means.
Except as set forth in the Restated Certificate, the Company has no obligation (contingent or otherwise) to purchase or redeem any of
its capital stock.
(e) 409A.
The Company believes in good faith that any “nonqualified deferred compensation plan” (as such term is defined under Section 409A(d)(1) of
the Code and the guidance thereunder) under which the Company makes, is obligated to make or promises to make, payments (each, a “409A
Plan”) complies in all material respects, in both form and operation, with the requirements
of Section 409A of the Code and the guidance thereunder. To the knowledge of the Company, no payment to be made under any 409A Plan
is, or will be, subject to the penalties of Section 409A(a)(1) of the Code.
(f) The
Company has obtained valid waivers of any rights by other parties to purchase any of the Shares covered by this Agreement.
2.3 Subsidiaries.
Section 2.3 of the Disclosure Schedule lists all interests, currently owned or controlled by the Company, directly or indirectly,
in any other corporation, partnership, trust, joint venture, limited liability company, association, or other business entity (the “Company
Subsidiaries”) and all joint venture, partnership or similar arrangements entered into by the Company. Each Company Subsidiary
is duly organized, validly existing and in good standing under the laws of the state of its formation and has all requisite corporate
power and authority to carry on its business as now conducted and as presently proposed to be conducted. Each Company Subsidiary is duly
qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a Material Adverse
Effect.
2.4 Authorization.
All corporate action required to be taken by the Company’s Board of Directors and stockholders in order to authorize the
Company to enter into the Transaction Agreements, and to issue the Shares at the Closing and the Common Stock issuable upon
conversion of the Shares, has been taken or will be taken prior to the applicable Closing. All action on the part of the officers of
the Company necessary for the execution and delivery of the Transaction Agreements, the performance of all obligations of the
Company under the Transaction Agreements to be performed as of the Closing, and the issuance and delivery of the Shares has been
taken or will be taken prior to the applicable Closing. The Transaction Agreements, when executed and delivered by the Company,
shall constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their
respective terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally,
(ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies,
or (iii) to the extent the indemnification provisions contained in the Registration Rights Agreement may be limited by
applicable federal or state securities laws.
2.5 Valid
Issuance of Shares. The Shares, when issued, sold and delivered in accordance with the terms and for the consideration set forth in
this Agreement, will be validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer
under the Transaction Agreements, applicable state and federal securities laws and liens or encumbrances created by or imposed by a Purchaser.
Assuming the accuracy of the representations of the Purchasers in Section 3 of this Agreement and subject to the filings described
in Subsection 2.6 below, the Shares will be issued in compliance with all applicable federal and state securities laws. The Common
Stock issuable upon conversion of the Shares has been duly reserved for issuance, and upon issuance in accordance with the terms of the
Restated Certificate, will be validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions
on transfer under the Transaction Agreements, applicable federal and state securities laws and liens or encumbrances created by or imposed
by a Purchaser. Assuming the accuracy of the representations of the Purchasers in Section 3 of this Agreement and subject
to Subsection 2.6 below, the Common Stock issuable upon conversion of the Shares will be issued in compliance with all applicable federal
and state securities laws.
(a) No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “Disqualification Event”) is applicable to the Company or, to the Company’s knowledge, any Company Covered Person, except for a Disqualification Event as to which Rule 506(d)(2)(ii–iv) or (d)(3), is applicable.
2.6 Governmental
Consents and Filings. Assuming the accuracy of the representations made by the Purchasers in Section 3 of this
Agreement, 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 the Company in connection with the consummation of the
transactions contemplated by this Agreement, except for (i) the filing of the Certificate of Designation, which will have been
filed as of the Initial Closing, and (ii) filings pursuant to Regulation D of the Securities Act, and applicable state
securities laws, which have been made or will be made in a timely manner.
2.7 Litigation.
Except as set forth on Section 2.7 of the Disclosure Schedule, there is no claim, action, suit, proceeding, arbitration,
complaint, charge or, to the Company’s knowledge, any investigation pending or to the Company’s knowledge, currently
threatened in writing (i) against the Company or any officer, director or Key Employee of the Company arising out of their
employment or board relationship with the Company; or (ii) that questions the validity of the Transaction Agreements or the
right of the Company to enter into them, or to consummate the transactions contemplated by the Transaction Agreements; or
(iii) to the Company’s knowledge, that would reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect. Neither the Company nor, to the Company’s knowledge, any of its officers, directors or Key Employees
is a party or is named as subject to the provisions of any order, writ, injunction, judgment or decree of any court or government
agency or instrumentality (in the case of officers, directors or Key Employees, such as would affect the Company). There is no
action, suit, proceeding or investigation by the Company pending or which the Company intends to initiate. The foregoing
includes, without limitation, actions, suits, proceedings or investigations pending or threatened in writing (or any basis therefor
known to the Company) involving the prior employment of any of the Company’s employees, their services provided in connection
with the Company’s business, any information or techniques allegedly proprietary to any of their former employers or their
obligations under any agreements with prior employers.
(a) The
Company owns or possesses or believes it can acquire on commercially reasonable terms sufficient legal rights to all Company Intellectual
Property without any known conflict with, or infringement of, the rights of others, including prior employees or consultants. The Company
has not received any communications alleging that the Company has violated, or by conducting its business, would violate any of the patents,
trademarks, service marks, tradenames, copyrights, trade secrets, mask works or other proprietary rights or processes of any other Person.
(b) To
the Company’s knowledge, no product or service marketed or sold (or proposed to be marketed or sold) by the Company violates or
will violate any license or infringes or will infringe any intellectual property rights of any other party.
(c) Except
as set forth on Section 2.8 of the Disclosure Schedule, other than with respect to commercially available software products under
standard end-user object code license agreements, there are no outstanding options, licenses, agreements, claims, encumbrances or shared
ownership interests of any kind relating to the Company Intellectual Property, nor is the Company bound by or a party to any options,
licenses or agreements of any kind with respect to the patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses,
information, proprietary rights and processes of any other Person.
(d) The
Company has obtained and possesses valid licenses to use all of the software programs present on the computers and other software-enabled
electronic devices that it owns or leases or that it has otherwise provided to its employees for their use in connection with the Company’s
business.
(e) Each
employee and consultant has assigned to the Company all intellectual property rights he or she owns that are related to the Company’s
business as now conducted and as presently proposed to be conducted and all intellectual property rights that he, she or it solely or
jointly conceived, reduced to practice, developed or made during the period of his, her or its employment or consulting relationship with
the Company that (i) relate, at the time of conception, reduction to practice, development, or making of such intellectual property
right, to the Company’s business as then conducted or as then proposed to be conducted, (ii) were developed on any amount of
the Company’s time or with the use of any of the Company’s equipment, supplies, facilities or information or (iii) resulted
from the performance of services for the Company. It will not be necessary to use any inventions of any of its employees or consultants
(or Persons it currently intends to hire) made prior to their employment by the Company, including prior employees or consultants, or
academic or medical institutions with which any of them may be affiliated now or may have been affiliated in the past.
(f) Section 2.8(f) of
the Disclosure Schedule lists all patents, patent applications, registered trademarks, trademark applications, service marks, service
mark applications, tradenames, registered copyrights, and licenses to and under any of the foregoing, in each case owned by the Company.
(g) Except
as set forth on Section 2.8 of the Disclosure Schedule, the Company has not embedded, used or distributed any open source, copyleft
or community source code (including but not limited to any libraries or code, software, technologies or other materials that are licensed
or distributed under any General Public License, Lesser General Public License or similar license arrangement or other distribution model
described by the Open Source Initiative at xxx.xxxxxxxxxx.xxx, collectively “Open Source Software”) in connection with
any of its products or services that are generally available or in development in any manner that would materially restrict the ability
of the Company to protect its proprietary interests in any such product or service or in any manner that requires, or purports to require
(i) any Company IP (other than the Open Source Software itself) be disclosed or distributed in source code form or be licensed for
the purpose of making derivative works; (ii) any restriction on the consideration to be charged for the distribution of any Company
IP; (iii) the creation of any obligation for the Company with respect to Company IP owned by the Company, or the grant to any third
party of any rights or immunities under Company IP owned by the Company; or (iv) any other limitation, restriction or condition on
the right of the Company with respect to its use or distribution of any Company IP.
(h) No
government funding, facilities of a university, college, other educational institution or research center, or funding from third parties
was used in the development of any Company Intellectual Property. To the Company’s knowledge, no Person who was involved in, or
who contributed to, the creation or development of any Company Intellectual Property, has performed services for the government, university,
college, or other educational institution or research center in a manner that would affect Company’s rights in the Company Intellectual
Property.
2.9 Compliance
with Other Instruments. The Company is not in violation or default (i) of any provisions of its Restated Certificate or Bylaws,
(ii) of any instrument, judgment, order, writ or decree, (iii) under any note, indenture or mortgage, or (iv) under any
lease, agreement, contract or purchase order to which it is a party or by which it is bound that is required to be listed on the Disclosure
Schedule, or (v) to its knowledge, of any provision of federal or state statute, rule or regulation applicable to the Company,
the violation of which would have a Material Adverse Effect. The execution, delivery and performance of the Transaction Agreements and
the consummation of the transactions contemplated by the Transaction Agreements will not result in any such violation or be in conflict
with or constitute, with or without the passage of time and giving of notice, either (i) a default under any such provision, instrument,
judgment, order, writ, decree, contract or agreement; or (ii) an event which results in the creation of any lien, charge or encumbrance
upon any assets of the Company or the suspension, revocation, forfeiture, or nonrenewal of any material permit or license applicable to
the Company.
(a) Except
as set forth on Section 2.10 of the Disclosure Schedule and in the Transaction Agreements, there are no agreements,
understandings, instruments, contracts or proposed transactions to which the Company is a party or by which it is bound that involve (i) obligations
(contingent or otherwise) of, or payments to, the Company in excess of $250,000, (ii) the license of any patent, copyright,
trademark, trade secret or other proprietary right to or from the Company, (iii) the grant of rights to manufacture, produce,
assemble, license, market, or sell its products to any other Person that limit the Company’s exclusive right to develop,
manufacture, assemble, distribute, market or sell its products, or (iv) indemnification by the Company with respect to
infringements of proprietary rights.
(b) The
Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or
series of its capital stock, (ii) incurred any indebtedness for money borrowed or incurred any other liabilities
individually in excess of $100,000 or in excess of $250,000 in the aggregate, (iii) made any loans or advances to any Person,
other than ordinary advances for business expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or
rights, other than in the ordinary course of business. For the purposes of (a) and (b) of this Section 2.10,
all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same
Person (including Persons the Company has reason to believe are affiliated with each other) shall be aggregated for the purpose of
meeting the individual minimum dollar amounts of such section.
(c) The Company is not a guarantor or indemnitor of any indebtedness of any other Person.
(a) Other than (i) standard employee benefits generally made available to all employees, standard employee offer letters and Confidential Information Agreements (as defined below), (ii) standard director and officer indemnification agreements approved by the Board of Directors, (iii) the purchase of shares of the Company’s capital stock and the issuance of options to purchase shares of the Company’s Common Stock, in each instance, approved in the written minutes of the Board of Directors (previously provided to the Purchasers or their respective counsel), and (iv) the Transaction Documents, there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, consultants or Key Employees, or any Affiliate thereof.
(b) The
Company is not indebted, directly or indirectly, to any of its directors, officers or employees or to their respective spouses or
children or to any Affiliate of any of the foregoing, other than in connection with expenses or advances of expenses incurred in the
ordinary course of business or employee relocation expenses and for other customary employee benefits made generally available to
all employees. None of the Company’s directors, officers or employees, or any members of their immediate families, or any
Affiliate of the foregoing are, directly or indirectly, indebted to the Company or, to the Company’s knowledge, have any
(i) material commercial, industrial, banking, consulting, legal, accounting, charitable or familial relationship with any of
the Company’s customers, suppliers, service providers, joint venture partners, licensees and competitors,
(ii) direct or indirect ownership interest in any firm or corporation with which the Company is affiliated or with which the
Company has a business relationship, or any firm or corporation which competes with the Company except that directors, officers,
employees or stockholders of the Company may own stock in (but not exceeding two percent (2%) of the outstanding capital stock of)
publicly traded companies that may compete with the Company; or (iii) financial interest in any contract with the Company.
2.12 Rights
of Registration and Voting Rights. Except as provided in the Registration Rights Agreement, the Company is not under any obligation
to register under the Securities Act any of its currently outstanding securities or any securities issuable upon exercise or conversion
of its currently outstanding securities. To the Company’s knowledge, except as contemplated in the Stockholders Agreement, no stockholder
of the Company has entered into any agreements with respect to the voting of capital shares of the Company.
2.13 Property.
The property and assets that the Company owns are free and clear of all mortgages, deeds of trust, liens, loans and encumbrances, except
for statutory liens for the payment of current taxes that are not yet delinquent and encumbrances and liens that arise in the ordinary
course of business and do not materially impair the Company’s ownership or use of such property or assets. With respect to the property
and assets it leases, the Company is in compliance with such leases and holds a valid leasehold interest free of any liens, claims or
encumbrances other than those of the lessors of such property or assets. The Company does not own any real property.
2.14 Financial
Statements. The Company has delivered to each Purchaser its audited financial statements as of and for the fiscal year ended December 31,
2021, and its unaudited financial statements (including balance sheet, income statement and statement of cash flows) as of December 31,
2022 (the “Financial Statements”). The Financial Statements have been prepared in accordance with generally accepted
accounting principles (“GAAP”) applied on a consistent basis throughout the periods indicated. The Financial Statements
fairly present in all material respects the financial condition and operating results of the Company as of the dates, and for the periods,
indicated therein, subject in the case of the unaudited Financial Statements to normal year-end audit adjustments. Except as set forth
in the Financial Statements, the Company has no material liabilities or obligations, contingent or otherwise, other than (i) liabilities
incurred in the ordinary course of business subsequent to December 31, 2021; (ii) obligations under contracts and commitments
incurred in the ordinary course of business; and (iii) liabilities and obligations of a type or nature not required under GAAP to
be reflected in the Financial Statements, which, in all such cases, individually and in the aggregate would not have a Material Adverse
Effect. The Company maintains and will continue to maintain a standard system of accounting established and administered in accordance
with GAAP.
2.15 Changes.
Except as set forth on Section 2.15 of the Disclosure Schedule, since December 31, 2021 there has not been:
(a) any
change in the assets, liabilities, financial condition or operating results of the Company from that reflected in the Financial Statements,
except changes in the ordinary course of business that have not caused, in the aggregate, a Material Adverse Effect;
(b) any
damage, destruction or loss, whether or not covered by insurance, that would have a Material Adverse Effect;
(c) any
waiver or compromise by the Company of a valuable right or of a material debt owed to it;
(d) any
satisfaction or discharge of any lien, claim, or encumbrance or payment of any obligation by the Company, except in the ordinary course
of business and the satisfaction or discharge of which would not have a Material Adverse Effect;
(e) any
material change to a material contract or agreement by which the Company or any of its assets is bound or subject;
(f) any
material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(g) any
resignation or termination of employment of any officer or Key Employee of the Company;
(h) any
mortgage, pledge, transfer of a security interest in, or lien, created by the Company, with respect to any of its material properties
or assets, except liens for taxes not yet due or payable and liens that arise in the ordinary course of business and do not materially
impair the Company’s ownership or use of such property or assets;
(i) any
loans or guarantees made by the Company to or for the benefit of its employees, officers or directors, or any members of their immediate
families, other than travel advances and other advances made in the ordinary course of its business;
(j) any
declaration, setting aside or payment or other distribution in respect of any of the Company’s capital stock, or any direct or indirect
redemption, purchase, or other acquisition of any of such stock by the Company;
(k) any
sale, assignment or transfer of any Company Intellectual Property that could reasonably be expected to result in a Material Adverse Effect;
(l) receipt
of notice that there has been a loss of, or material order cancellation by, any major customer of the Company;
(m) any
other event or condition of any character, other than events affecting the economy or the Company’s industry generally, that could
reasonably be expected to result in a Material Adverse Effect; or
(n) any
arrangement or commitment by the Company to do any of the things described in this Section 2.15.
(a) To
the Company’s knowledge, none of its employees is obligated under any contract (including licenses, covenants or commitments of
any nature) or other agreement, or subject to any judgment, decree or order of any court or administrative agency, that would materially
interfere with such employee’s ability to promote the interest of the Company or that would conflict with the Company’s business.
Neither the execution or delivery of the Transaction Agreements, nor the carrying on of the Company’s business by the employees
of the Company, nor the conduct of the Company’s business as now conducted and as presently proposed to be conducted, will, to the
Company’s knowledge, conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under,
any contract, covenant or instrument under which any such employee is now obligated.
(b) Except
as set forth on Section 2.16 of the Disclosure Schedules, the Company is not delinquent in payments to any of its employees, consultants,
or independent contractors for any wages, salaries, commissions, bonuses, or other direct compensation for any service performed for it
to the date hereof or amounts required to be reimbursed to such employees, consultants or independent contractors. The Company has complied
in all material respects with all applicable state and federal equal employment opportunity laws and with other laws related to employment,
including those related to wages, hours, worker classification and collective bargaining. The Company has withheld and paid to the appropriate
governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees
of the Company and is not liable for any arrears of wages, taxes, penalties or other sums for failure to comply with any of the foregoing.
(c) To
the Company’s knowledge, no Key Employee intends to terminate employment with the Company or is otherwise likely to become unavailable
to continue as a Key Employee. The Company does not have a present intention to terminate the employment of any of the foregoing. The
employment of each employee of the Company is terminable at the will of the Company. Except as set forth in Section 2.16(c)(i) of
the Disclosure Schedule or as required by law, upon termination of the employment of any such employees, no severance or other payments
will become due. Except as set forth in Section 2.16(c)(ii) of the Disclosure Schedule, the Company has no policy, practice,
plan or program of paying severance pay or any form of severance compensation in connection with the termination of employment services.
(d) Except
as set forth on Subsection 2.16(d) of the Disclosure Schedule, the Company has not made any representations regarding equity incentives
to any officer, employee, director or consultant that are inconsistent with the share amounts and terms set forth in the minutes of meetings
of (or actions taken by unanimous written consent by) the Company’s Board of Directors.
(e) Except
as set forth on Subsection 2.16(e) of the Disclosure Schedule, each former Key Employee whose employment was terminated by the Company
has entered into an agreement with the Company providing for the full release of any claims against the Company or any related party arising
out of such employment.
(f) Section 2.16(f) of
the Disclosure Schedule sets forth each employee benefit plan maintained, established or sponsored by the Company, or which the Company
participates in or contributes to, which is subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).
Except as set forth on Section 2.16(f) of the Disclosure Schedule, the Company has made all required contributions and has no
liability to any such employee benefit plan, other than liability for health plan continuation coverage described in Part 6 of Title
I(B) of ERISA, and has complied in all material respects with all applicable laws for any such employee benefit plan.
(g) The
Company is not bound by or subject to (and none of its assets or properties is bound by or subject to) any written or oral, express or
implied, contract, commitment or arrangement with any labor union, and no labor union has requested or, to the knowledge of the Company,
has sought to represent any of the employees, representatives or agents of the Company. There is no strike or other labor dispute involving
the Company pending, or to the Company’s knowledge, threatened, which could have a Material Adverse Effect, nor is the Company aware
of any labor organization activity involving its employees.
2.17 Tax
Returns and Payments. There are no federal, state, county, local or foreign taxes due and payable by the Company which have not been
timely paid. There are no accrued and unpaid federal, state, country, local or foreign taxes of the Company which are due, whether or
not assessed or disputed. There have been no examinations or audits of any tax returns or reports by any applicable federal, state, local
or foreign governmental agency. The Company has duly and timely filed all federal, state, county, local and foreign tax returns required
to have been filed by it and there are in effect no waivers of applicable statutes of limitations with respect to taxes for any year.
2.18 Insurance.
The Company has in full force and effect insurance policies concerning such casualties as would be reasonable and customary for companies
like the Company, with extended coverage, sufficient in amount (subject to reasonable deductions) to allow it to replace any of its properties
that might be damaged or destroyed.
2.19 Employee
Agreements. Each current and former employee, consultant and officer of the Company has executed an agreement with the Company regarding
confidentiality and proprietary information substantially in the form or forms delivered to the Purchasers or their respective counsel
(the “Confidential Information Agreements”). No current or former Key Employee has excluded works or inventions from
his or her assignment of inventions pursuant to such Key Employee’s Confidential Information Agreement. Each current and former
Key Employee has executed a non-solicitation agreement substantially in the form or forms delivered to the Purchasers or the counsel for
the Purchasers. The Company is not aware that any of its Key Employees is in violation of any agreement described in this Section 2.19.
2.20 Permits.
The Company has all franchises, permits, licenses and any similar authority necessary for the conduct of its business, the lack of which
could reasonably be expected to have a Material Adverse Effect. The Company is not in default in any material respect under any of such
franchises, permits, licenses or other similar authority.
2.21 Corporate
Documents. The Restated Certificate and Bylaws of the Company as of the date of this Agreement are in the form provided to the Purchasers.
The copy of the minute books of the Company provided to the Purchasers contains minutes of all meetings of directors and stockholders
and all actions by written consent without a meeting by the directors and stockholders since the date of incorporation and accurately
reflects in all material respects all actions by the directors (and any committee of directors) and stockholders with respect to all transactions
referred to in such minutes.
2.22 Environmental
and Safety Laws. Except as could not reasonably be expected to have a Material Adverse Effect to the best of its knowledge (a) the
Company is and has been in compliance with all Environmental Laws; (b) there has been no release or to the Company’s knowledge
threatened release of any pollutant, contaminant or toxic or hazardous material, substance or waste or petroleum or any fraction thereof
(each a “Hazardous Substance”), on, upon, into or from any site currently or heretofore owned, leased or otherwise
used by the Company; (c) there have been no Hazardous Substances generated by the Company that have been disposed of or come to rest
at any site that has been included in any published U.S. federal, state or local “superfund” site list or any other similar
list of hazardous or toxic waste sites published by any governmental authority in the United States; and (d) there are no underground
storage tanks located on, no polychlorinated biphenyls (“PCBs”) or PCB-containing equipment used or stored on, and
no hazardous waste as defined by the Resource Conservation and Recovery Act, as amended, stored on, any site owned or operated by the
Company, except for the storage of hazardous waste in compliance with Environmental Laws. The Company has made available to the Purchasers
true and complete copies of all material environmental records, reports, notifications, certificates of need, permits, pending permit
applications, correspondence, engineering studies and environmental studies or assessments.
For purposes of this Section 2.24,
“Environmental Laws” means any law, regulation, or other applicable requirement relating to (a) releases or
threatened release of Hazardous Substance; (b) pollution or protection of employee health or safety, public health or the
environment; or (c) the manufacture, handling, transport, use, treatment, storage, or disposal of Hazardous Substances.
2.23 Qualified
Small Business Stock. As of and immediately following the Closing: (i) the Company will be an eligible corporation as defined
in Section 1202(e)(4) of the Code, (ii) the Company will not have made purchases of its own stock described in Code Section 1202(c)(3)(B) during
the one (1) year period preceding the Initial Closing, except for purchases that are disregarded for such purposes under Treasury
Regulation Section 1.1202-2, and (iii) the Company’s aggregate gross assets, as defined by Code Section 1202(d)(2),
at no time between its incorporation and through the Initial Closing have exceeded $50 million, taking into account the assets of any
corporations required to be aggregated with the Company in accordance with Code Section 1202(d)(3); provided, however,
that in no event shall the Company be liable to the Purchasers or any other party for any damages arising from any subsequently proven
or identified error in the Company’s determination with respect to the applicability or interpretation of Code Section 1202,
unless such determination shall have been given by the Company in a manner either grossly negligent or fraudulent.
2.24 Privacy
and Data Security. In connection with its collection, storage, use and/or disclosure of any information that constitutes
“personal information,” “personal data” or “personally identifiable information” as defined in
applicable laws (collectively “Personal Information”) by or on behalf of the Company, the Company is and has been
in compliance with (i) all laws applicable to the Company and its business (including, without limitation, laws relating
to privacy, data security, telephone and text message communications, and marketing by email or other channels, to the extent
applicable to the Company and its business) in all relevant jurisdictions, (ii) the Company’s current privacy policies
and public written statements regarding the Company’s privacy or data security practices, and (iii) the requirements of
any contract by which the Company is bound. The Company maintains and has maintained reasonable physical, technical, and
administrative security measures and policies designed to protect all Personal Information owned, stored, used, maintained or
controlled by or on behalf of the Company from and against unlawful, accidental or unauthorized access, destruction, loss, use,
modification and/or disclosure. To the extent the Company maintains or transmits protected health information, as defined under 45
C.F.R. § 160.103, the Company is in compliance with the applicable requirements of the Health Insurance Portability and
Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act, including all
rules and regulations promulgated thereunder. The Company is and has been in compliance in all material respects with all laws
applicable to the Company and its business relating to data loss, theft and breach of security notification obligations. There has
been no occurrence of (x) unlawful, accidental or unauthorized destruction, loss, use, modification or disclosure of or access
to Personal Information owned, stored, used, maintained or controlled by or on behalf of the Company such that Privacy Requirements
require or required the Company to notify government authorities, affected individuals or other parties of such occurrence or
(y) unauthorized access to or disclosure of the Company’s confidential information or trade secrets that reasonably would
be expected to result in a Material Adverse Effect.
2.25 Foreign
Corrupt Practices Act. Neither the Company nor any of its directors, officers, employees or agents have, directly or indirectly,
made, offered, promised or authorized any payment or gift of any money or anything of value to or for the benefit of any
“foreign official” (as such term is defined in the U.S. Foreign Corrupt Practices Act of 1977, as amended (the
“FCPA”)), foreign political party or official thereof or candidate for foreign political office for the purpose
of (i) influencing any official act or decision of such official, party or candidate, (ii) inducing such official, party
or candidate to use his, her or its influence to affect any act or decision of a foreign governmental authority, or
(iii) securing any improper advantage, in the case of (i), (ii) and (iii) above in order to assist the Company or any
of its affiliates in obtaining or retaining business for or with, or directing business to, any person. Neither the Company nor any
of its directors, officers, employees or agents have made or authorized any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment of funds or received or retained any funds in violation of any law, rule or regulation. The Company
further represents that it has maintained, and has caused each of its subsidiaries and affiliates to maintain, systems of internal
controls (including, but not limited to, accounting systems, purchasing systems and billing systems) and written policies to ensure
compliance with the FCPA or any other applicable anti- bribery or anti-corruption law, and to ensure that all books and records of
the Company accurately and fairly reflect, in reasonable detail, all transactions and dispositions of funds and assets. Neither the
Company nor any of its officers, directors or employees are the subject of any allegation, voluntary disclosure,
investigation, prosecution or other enforcement action related to the FCPA or any other anti-corruption law.
2.26 Export
Control Laws. The Company has conducted all export transactions in accordance with applicable provisions of United States export control
laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, the regulations
administered by the Office of Foreign Assets Control of the U.S. Treasury Department, and the export control laws and regulations of any
other applicable jurisdiction. Without limiting the foregoing: (a) the Company has obtained all export licenses to the extent applicable
and other applicable approvals, timely filed all required filings applicable to its business and, if required, has assigned the appropriate
export classifications to all products, in each case as required for its exports of products, software and technologies from the United
States and any other applicable jurisdiction; (b) the Company is in compliance with the terms of all applicable export licenses,
classifications, filing requirements or other approvals; (c) there are no pending or threatened claims against the Company with respect
to such exports, classifications, required filings or other approvals; (d) there are no pending investigations related to the Company’s
exports; and (e) there are no actions, conditions, or circumstances pertaining to the Company’s export transactions that would
reasonably be expected to give rise to any material future claims.
2.27 Disclosure.
No representation or warranty of the Company contained in this Agreement, as qualified by the Disclosure Schedule, and no certificate
furnished or to be furnished to the Purchasers at the Closing contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they
were made.
3. Representations
and Warranties of the Purchasers. Each Purchaser hereby represents and warrants to the Company, severally and not jointly, that:
3.1 Authorization.
The Purchaser has full power and authority to enter into the Transaction Agreements. The Transaction Agreements to which the Purchaser
is a party, when executed and delivered by the Purchaser, will constitute valid and legally binding obligations of the Purchaser, enforceable
against such Purchaser in accordance with their terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors’ rights generally,
and as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies, or (b) to
the extent the indemnification provisions contained in the Registration Rights Agreement may be limited by applicable federal or state
securities laws.
3.2 Purchase
Entirely for Own Account. This Agreement is made with the Purchaser in reliance upon the Purchaser’s representation to the
Company, which by the Purchaser’s execution of this Agreement, the Purchaser hereby confirms, that the Shares to be acquired
by the Purchaser will be acquired for investment for the Purchaser’s own account, not as a nominee or agent, and not with a
view to the resale or distribution of any part thereof, and that the Purchaser has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this Agreement, the Purchaser further represents that the
Purchaser does not presently have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or
grant participations to such Person or to any third Person, with respect to any of the Shares. The Purchaser has not been formed for
the specific purpose of acquiring the Shares.
3.3 Disclosure
of Information. The Purchaser has had an opportunity to discuss the Company’s business, management, financial affairs and the
terms and conditions of the offering of the Shares with the Company’s management and has had an opportunity to review the Company’s
facilities. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2
of this Agreement or the right of the Purchasers to rely thereon.
3.4 Restricted
Securities. The Purchaser understands that the Shares have not been, and will not be, registered under the Securities Act, by reason
of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature
of the investment intent and the accuracy of the Purchaser’s representations as expressed herein. The Purchaser understands that
the Shares are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these
laws, the Purchaser must hold the Shares indefinitely unless they are registered with the Securities and Exchange Commission and qualified
by state authorities, or an exemption from such registration and qualification requirements is available. The Purchaser acknowledges that
the Company has no obligation to register or qualify the Shares, or the Common Stock into which it may be converted, for resale except
as set forth in the Registration Rights Agreement. The Purchaser further acknowledges that if an exemption from registration or qualification
is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period
for the Shares, and on requirements relating to the Company which are outside of the Purchaser’s control, and which the Company
is under no obligation and may not be able to satisfy.
3.5 No
Public Market. The Purchaser understands that no public market now exists for the Shares, and that the Company has made no assurances
that a public market will ever exist for the Shares.
3.6 Legends.
The Purchaser understands that the Shares and any securities issued in respect of or exchange for the Shares, may be notated with one
or all of the following legends:
“THE SHARES REPRESENTED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION
WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH TRANSFER MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO
OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933, AS AMENDED.”
(a) Any legend set forth in, or required by, the other Transaction Agreements.
(b) Any legend required by the securities laws of any state to the extent such laws are applicable to the Shares represented by the certificate, instrument, or book entry so legended.
3.7 Accredited
Investor. The Purchaser is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities
Act.
3.8 No
General Solicitation. Neither the Purchaser, nor any of its officers, directors, employees, agents, stockholders or partners has either
directly or indirectly, including, through a broker or finder (a) engaged in any general solicitation, or (b) published any
advertisement in connection with the offer and sale of the Shares.
3.9 Foreign
Investors. If the Purchaser is not a United States person (as defined by Section 7701(a)(30) of the Code), the Purchaser hereby
represents that it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to
subscribe for the Shares or any use of this Agreement, including (i) the legal requirements within its jurisdiction for the purchase
of the Shares, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental or other consents
that may need to be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding,
redemption, sale, or transfer of the Shares. The Purchaser’s subscription and payment for and continued beneficial ownership of
the Shares will not violate any applicable securities or other laws of the Purchaser’s jurisdiction.
3.10 No
General Solicitation. Neither the Purchaser, nor any of its officers, directors, employees, agents, stockholders or partners has either
directly or indirectly, including, through a broker or finder (a) engaged in any general solicitation, or (b) published any
advertisement in connection with the offer and sale of the Shares.
3.11 Exculpation
Among Purchasers. The Purchaser acknowledges that it is not relying upon any Person, other than the Company and its officers and directors,
in making its investment or decision to invest in the Company. The Purchaser agrees that neither any Purchaser nor the respective controlling
Persons, officers, directors, partners, agents, or employees of any Purchaser shall be liable to any other Purchaser for any action heretofore
taken or omitted to be taken by any of them in connection with the purchase of the Shares.
3.12 Residence.
If the Purchaser is an individual, then the Purchaser resides in the state or province identified in the address of the Purchaser set
forth on Exhibit A; if the Purchaser is a partnership, corporation, limited liability company or other entity, then the office
or offices of the Purchaser in which its principal place of business is identified in the address or addresses of the Purchaser set forth
on Exhibit A.
4. Conditions
to the Purchasers’ Obligations at Closing. The obligations of each Purchaser to purchase Shares, at the Initial Closing or
any subsequent Closing are subject to the fulfillment, on or before such Closing, of each of the following conditions, unless
otherwise waived:
4.1 Representations
and Warranties. The representations and warranties of the Company contained in Section 2 shall be true and correct in
all respects as of such Closing.
4.2 Performance.
The Company shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by the Company on or before such Closing.
4.3 Compliance
Certificate. The President of the Company shall deliver to the Purchasers at such Closing a certificate certifying that the
conditions specified in Sections 4.1 and 4.2 have
been fulfilled.
4.4 Qualifications.
All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state
that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement shall be obtained and effective
as of such Closing.
4.5 Opinion
of Company Counsel. The Purchasers shall have received from Xxxxx Xxxxx & Xxxxxx LLP, counsel for the Company, an opinion,
dated as of the Initial Closing, in substantially the form of Exhibit F attached to this Agreement.
4.6 Board
of Directors. As of the Initial Closing, the authorized size of the Board shall be five (5), and the Board shall be comprised of Xxxx
Xxxxxx, Xxxxx Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxx Xxxx Xx Xxxxx and Xxxxxx Xxxxx. Ecolab Inc., as a Purchaser hereunder (“Ecolab”),
shall be entitled to appoint an observer to the Board.
4.7 Registration
Rights Agreement. The Company and each Purchaser (other than the Purchaser relying upon this condition to excuse such Purchaser’s
performance hereunder) shall have executed and delivered the Registration Rights Agreement.
4.8 Stockholders
Agreement. The Company, each Purchaser (other than the Purchaser relying upon this condition to excuse such Purchaser’s performance
hereunder), and the other stockholders of the Company named as parties thereto shall have executed and delivered the Stockholders Agreement
4.9 Restated
Certificate. The Company shall have filed the Certificate of Designation with the Secretary of State of Delaware on or prior to the
Closing, which shall continue to be in full force and effect as of the Closing.
4.10 Secretary’s
Certificate. The Secretary of the Company shall have delivered to the Purchasers at the Closing a certificate certifying (i) the
Certificate of Incorporation and Bylaws of the Company as in effect at the Closing and (ii) resolutions of the Board of Directors
of the Company approving the Transaction Agreements and the transactions contemplated under the Transaction Agreements.
4.11 Commercial
Agreements. The Company shall have executed and delivered to Ecolab the Commercial Agreements, in form and content acceptable to Ecolab.
4.12 Warrant
Purchase Agreement. The Company shall have executed and delivered to Ecolab a Preferred Stock Warrant Purchase Agreement, in form
and content acceptable to Ecolab.
4.13 Proceedings
and Documents. All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to each Purchaser, and each Purchaser (or its respective counsel)
shall have received all such counterpart original and certified or other copies of such documents as reasonably requested. Such documents
may include good standing certificates.
5. Conditions
of the Company’s Obligations at Closing. The obligations of the Company to sell Shares to the Purchasers at the Initial Closing
or any subsequent Closing are subject to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise
waived:
5.1 Representations
and Warranties. The representations and warranties of each Purchaser contained in Section 3 shall be true and correct
in all respects as of such Closing.
5.2 Performance.
The Purchasers shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement
that are required to be performed or complied with by them on or before such Closing.
5.3 Qualifications.
All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state
that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement shall be obtained and effective
as of the Closing.
5.4 Registration
Rights Agreement. Each Purchaser shall have executed and delivered the Registration Rights Agreement.
5.5 Stockholders
Agreement. Each Purchaser and the other stockholders of the Company named as parties thereto shall have executed and delivered the
Stockholders Agreement.
6.
Miscellaneous.
6.1 Survival
of Warranties. Unless otherwise set forth in this Agreement, the representations and warranties of the Company and the Purchasers
contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and each Closing and shall
in no way be affected by any investigation or knowledge of the subject matter thereof made by or on behalf of the Purchasers or the Company.
6.2 Successors
and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors
and assigns of the parties.
Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the parties hereto 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.
6.3 Governing
Law. This Agreement shall be governed by the internal law of the State of Delaware, without regard to conflict of law principles that
would result in the application of any law other than the law of the State of Delaware.
6.4 Counterparts.
This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature
complying with the U.S. federal ESIGN Act of 2000, e.g., xxx.xxxxxxxx.xxx) 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.
6.5 Titles
and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing
or interpreting this Agreement.
(a) General.
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 (a) personal delivery to the party to be notified, (b) 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, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid,
or (d) 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 communications shall be sent to the respective parties at their address
as set forth on the signature page or Exhibit A, or to such e-mail address or address as subsequently modified by written
notice given in accordance with this Section 6.6. If notice is given to the Company, a copy (which copy shall not constitute
notice) shall also be sent to Xxxxx, Xxxxx & Xxxxxx LLP, 0000 Xxxxxxxx Xxxx., Xx. 0, Xxxxxxx Xxxxx, XX 00000, Attn: Xxxxx Xxxxxxxxx,
email: xxxxxxxxxx@xxxxxx.xxx and if notice is given to the Purchasers, a copy (which copy shall not constitute notice) shall also be
given to Xxxxxxx Xxxxxx, Esq., Fox Rothschild LLP, 00 Xxxxx 0xx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, XX 00000, xxxxxxx@xxxxxxxxxxxxx.xxx.
(b) Consent
to Electronic Notice. Each Purchaser consents to the delivery of any stockholder notice pursuant to the Delaware General
Corporation Law (the “DGCL”), as amended or superseded from time to time, by electronic transmission pursuant to
Section 232 of the DGCL (or any successor thereto) at the e-mail address set forth below such Purchaser’s name on the
signature page or Exhibit A, as updated from time to time by notice to the Company. To the extent that any notice
given by means of electronic transmission is returned or undeliverable for any reason, the foregoing consent shall be deemed to have
been revoked until a new or corrected e-mail address has been provided, and such attempted electronic notice shall be
ineffective and deemed to not have been given. Each Purchaser agrees to promptly notify the Company of any change in its e-mail
address, and that failure to do so shall not affect the foregoing.
6.7 No
Finder’s Fees. Each party represents that it neither is nor will be obligated for any finder’s fee or commission in connection
with this transaction. Each Purchaser agrees to indemnify and to hold harmless the Company from any liability for any commission or compensation
in the nature of a finder’s or broker’s fee arising out of this transaction (and the costs and expenses of defending against
such liability or asserted liability) for which each Purchaser or any of its officers, employees or representatives is responsible. The
Company agrees to indemnify and hold harmless each Purchaser from any liability for any commission or compensation in the nature of a
finder’s or broker’s fee arising out of this transaction (and the costs and expenses of defending against such liability or
asserted liability) for which the Company or any of its officers, employees or representatives is responsible.
6.9 Attorneys’
Fees. If any action at law or in equity (including, arbitration) is necessary to enforce or interpret the terms of any of the Transaction
Agreements, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition
to any other relief to which such party may be entitled.
6.10 Amendments
and Waivers. Except as set forth in Section 1.3(a) of this Agreement, any term of this Agreement may be amended,
terminated or waived only with the written consent of the Company and the holders of at least a majority of the then-outstanding Shares.
Any amendment or waiver effected in accordance with this Section 6.10 shall be binding upon the Purchasers and each transferee
of the Shares (or the Common Stock issuable upon conversion thereof), each future holder of all such securities, and the Company.
6.11 Severability.
The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision.
6.12 Delays
or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party under this Agreement, upon any breach
or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non- defaulting
party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach
or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must
be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement
or by law or otherwise afforded to any party, shall be cumulative and not alternative.
6.13 Entire
Agreement. This Agreement (including the Exhibits hereto), the Restated Certificate and the other Transaction Agreements
constitute the full and entire understanding and agreement between the parties with respect to the subject matter hereof, and any
other written or oral agreement relating to the subject matter hereof existing between the parties are expressly canceled.
6.14 Corporate
Securities Law. THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION
THEREFOR PRIOR TO THE QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE QUALIFICATION BY SECTION 25100,
25102 OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON THE QUALIFICATION
BEING OBTAINED UNLESS THE SALE IS SO EXEMPT.
6.15 Dispute
Resolution. The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts located
in Delaware and to the jurisdiction of the United States District Court for the District of Delaware for
the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit,
action or other proceeding arising out of or based upon this Agreement except in the state courts located in Delaware or the United
States District Court for the District of Delaware, and (c) hereby waive, and agree not to assert,
by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the
jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding
is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject
matter hereof may not be enforced in or by such court.
WAIVER OF JURY TRIAL: EACH PARTY HEREBY WAIVES
ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS,
THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT
CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS
BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY
FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
6.16 No
Commitment for Additional Financing. The Company acknowledges and agrees that no Purchaser has made any representation,
undertaking, commitment or agreement to provide or assist the Company in obtaining any financing, investment or other assistance,
other than the purchase of the Shares as set forth herein and subject to the conditions set forth herein. In addition, the
Company acknowledges and agrees that (i) no statements, whether written or oral, made by any Purchaser or its representatives
on or after the date of this Agreement shall create an obligation, commitment or agreement to provide or assist the Company in
obtaining any financing or investment, (ii) the Company shall not rely on any such statement by any Purchaser or its
representatives, and (iii) an obligation, commitment or agreement to provide or assist the Company in obtaining any financing
or investment may only be created by a written agreement, signed by such Purchaser and the Company, setting forth the terms and
conditions of such financing or investment and stating that the parties intend for such writing to be a binding obligation or
agreement. Each Purchaser shall have the right, in its sole and absolute discretion, to refuse or decline to participate in any
other financing of or investment in the Company, and shall have no obligation to assist or cooperate with the Company in obtaining
any financing, investment or other assistance.
6.17 Waiver
of Conflicts. Each party to this Agreement acknowledges that Xxxxx, Xxxxx & Xxxxxx LLP, counsel for the Company, may have
in the past performed, and may continue to or in the future perform, legal services for certain of the Purchasers in matters that are
similar, but not substantially related, to the transactions described in this Agreement, including the representation of such Purchasers
in venture capital financings and other matters. Accordingly, each party to this Agreement hereby acknowledges that (a) they have
had an opportunity to ask for information relevant to this disclosure, and (b) Xxxxx, Xxxxx & Xxxxxx LLP represents only
the Company with respect to the Agreement and the transactions contemplated hereby. The Company gives its informed consent to Xxxxx, Xxxxx &
Xxxxxx LLP’s representation of the Purchasers in matters not substantially related to this Agreement, and the Purchasers give their
informed consent to Xxxxx, Xxxxx & Xxxxxx LLP’s representation of the Company in connection with this Agreement and the
transactions contemplated hereby.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties
have executed this Series A-1 Preferred Stock Purchase Agreement as of the date first written above.
|
Name: Xxxxxxx Xxxx (print) |
|
Title: Chief Executive Officer |
| Address: | 000 X Xxxxxxxx Xxxx, Xxxxx 000 Xxxxxxxx, XX 00000 |
SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this
Series A-1 Preferred Stock Purchase Agreement as of the date first written above.
|
(Print Name of Purchaser) |
Signature Page to Stock
Purchase Agreement
EXHIBITS
Exhibit A - |
SCHEDULE OF PURCHASERS |
Exhibit B - |
FORM OF CERTIFICATE OF DESIGNATION |
Exhibit C - |
DISCLOSURE SCHEDULE |
Exhibit D - |
FORM OF AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT |
Exhibit E - |
FORM OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT |
Exhibit F - |
FORM OF OPINION OF COUNSEL |
EXHIBIT A.
SCHEDULE OF PURCHASERS
Ecolab, Inc. |
3,015,323 Series A-1 Preferred Shares |
EXHIBIT B.
FORM OF
CERTIFICATE OF DESIGNATION
EXHIBIT C.
DISCLOSURE SCHEDULE
This Disclosure Schedule is made and given
pursuant to Section 2 of the Series A-1 Preferred Stock Purchase Agreement, dated as of March 10, 2023 (the
“Agreement”), between Miso Robotics, Inc. (the “Company”) and the Purchasers listed on
Schedule A thereto. All capitalized terms used but not defined herein shall have the meanings as defined in the Agreement, unless
otherwise provided. The section numbers below correspond to the section numbers of the representations and warranties in the
Agreement; provided, however, that any information disclosed herein under any section number shall be deemed to be
disclosed and incorporated into any other section number under the Agreement where such disclosure would be appropriate and such
appropriateness is reasonably apparent from the face of such disclosure. Nothing in this Disclosure Schedule is intended to broaden
the scope of any representation or warranty contained in the Agreement or to create any covenant. Inclusion of any item in this
Disclosure Schedule (1) does not represent a determination that such item is material or establish a standard of materiality,
(2) does not represent a determination that such item did not arise in the ordinary course of business, (3) does not
represent a determination that the transactions contemplated by the Agreement require the consent of third parties, and
(4) shall not constitute, or be deemed to be, an admission to any third party concerning such item. This Disclosure Schedule
includes brief descriptions or summaries of certain agreements and instruments, copies of which are available upon reasonable
request. Such descriptions do not purport to be comprehensive, and are qualified in their entirety by reference to the text of the
documents described, true and complete copies of which have been provided to the Purchasers or their respective counsel.
EXHIBIT D
FORM OF AMENDED AND RESTATED REGISTRATION
RIGHTS AGREEMENT
EXHIBIT E
FORM OF AMENDED AND RESTATED STOCKHOLDERS
AGREEMENT