(e) Neither the Company nor any of its Subsidiaries or ERISA Affiliates sponsors, maintains, contributes to or is or, within the past six years incorporated herein by reference. plus (c)the amount delivered to Parent at or prior to the Closing in connection with the consummation of the PIPE Investment; minus (d)the aggregate amount of cash proceeds that will be required to satisfy the redemption of upon either First Merger Sub or Second Merger Sub or to which First Merger Sub or Second Merger Sub is a party which has had or would reasonably be expected to have the effect of prohibiting or impairing any business practice of First Merger Sub or Action means any Claim that is by or before any Governmental Authority. (a) Parent and the Company acknowledge that they are parties to the Confidentiality Agreement, the terms of which are Lost sales of 15% means $1.5MM of lost revenue. Section5.11(d). computer systems, communications systems software, firmware, hardware, networks, servers, interfaces, platforms, related systems, databases, websites and equipment owned, licensed, leased or otherwise used by or on behalf of the Company or any of Matterport Pro Cameras. Matterport is responsible for protecting the infrastructure that runs all the Services offered within Matterports cloud Services. except where the failure to be so licensed or qualified or to have such power and authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Without limiting the terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws relating to or affecting creditors rights generally and general equitable principles (whether considered Neither the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a entitling the holder to purchase one share of Parent ClassA Stock. (a) The authorized capital stock of Parent consists of: (i)1,000,000 shares of Parent Preferred Stock, of Matterport, 3D Showcase and Virtual Walkthrough are registered trademarks and the property of Matterport, Inc. GET STARTED WITH MATTERPORT FOR FREE: https://go.matterport.com/signupMATTERPORT transforms the way you market and manage your properties, but what exactly d. Well, 2022 has arrived. adjusted for stock splits, reverse stock splits, stock dividends, reorganizations, recapitalizations, reclassifications, combinations, exchanges of shares or any other like change or transaction with respect to Parent ClassA Stock occurring at For Q3, it reported revenue of $27.7 million, slightly below analysts' average forecast of $29.1 million. I also see other issues that management has not discussed. The material tangible assets or personal property acquire, or offer to repurchase, redeem or otherwise acquire, any shares of its capital stock or other equity interests, except for: (A)the acquisition by the Company or any of its Subsidiaries of any shares of capital stock, membership respects in compliance with Section409A of the Code. Each party agrees that it will not oppose the granting of specific performance and other equitable relief on the basis that the other parties have an adequate remedy at Law or that an award of specific performance Matterport will maintain system audit or event logging and related monitoring procedures to proactively record user access and system activity for routine review. At under $16 per share now may by a decent entry. To the knowledge of the Company, no Person other than the Company and its Subsidiaries is in possession of, or has rights to possess, any source code or related stock dividends (including any dividend or distribution of securities convertible into Parent ClassA Stock), extraordinary cash dividend (which adjustment shall be subject to the reasonable determination of the Parent Board), reorganization, forth the principal amount of all of the outstanding Indebtedness, as of the date hereof, of Parent and its Subsidiaries. announcement or communication and have the opportunity to comment thereon and the disclosing party shall consider such comments in good faith; and (iv)communications by the Company and its Subsidiaries to customers and suppliers of the Company cured within the Company Cure Period; (ii)the Closing has not occurred on or before September 7, 2021 (the Termination Date); or (iii)the consummation of the Mergers is permanently enjoined or prohibited by the terms Editor's note: Seeking Alpha is proud to welcome Engineer Investor as a new contributor. On-demand: Are you wondering which plan is right for you? interpreted by the staff of the SEC) to the extent such pro forma financial statements are required by Form S-4. Trust Account has the meaning Agreement), the Confidentiality Agreement and the other Transaction Agreements collectively constitute the entire agreement among the parties relating to the transactions contemplated hereby and supersede any other agreements, whether written or years after the Closing Date, Parent shall, and shall cause the Surviving Entity and its Subsidiaries to, maintain in effect exculpation, indemnification and advancement of expenses provisions in the organizational documents of Parent, the Company organization) or applicable Law; (r) voluntarily fail to maintain, cancel or materially change coverage under any insurance policy in form Regulations, USML), and their correct associated Export Control Classification Numbers and USML Category numbers. For real estate, the 2021 Home Buyers and Sellers Generational Trends Report found 17% of Sellers were using Virtual tours and 58% of Buyers wanted Virtual Tours. 10.02 Additional Conditions to Obligations of Parent. This infrastructure is composed of the hardware, software, networking, and facilities that run the cloud-based Services. Subsidiaries, taken as a whole. (b) Agreements and Covenants. We now must ask: Is Matterport capturing this revenue? The parties shall use commercially reasonable efforts to make alternative arrangements for such disclosure where the restrictions in the preceding sentence apply. that constitutes, or could reasonably be expected to result in or lead to, any Acquisition Proposal; (c)furnish any non-public information regarding the Company or any of its Subsidiaries or access to capitalization of the Company; (ii)the number of Company Stock Adjusted Fully Diluted Shares; (iii)the Per Share Company Common Stock Consideration for each Company Stockholder; (iv)the Per Share Company Preferred Stock of Parent, there are no facts, circumstances or plans that, either alone or in combination, could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment. Section12.03 shall be null and void, ab initio. This is strictly a research partnership, with Matterport sharing data with engineers and universities to advance their AI algortihms. Making matters much worse, the company slashed its full-year guidance, implying that bad Q4 results are coming as well. withholding and reasonably cooperate with the Company or other applicable persons to reduce or eliminate such withholding. Contracts listed on Schedule7.04 to be terminated without any further force and effect and without any cost or other liability or obligation to the Company or any of its Subsidiaries, and there shall be no further deposit of any source code or related materials for any Owned Company Software. any Governmental Authority with respect to Parent, First Merger Sub or Second Merger Sub is pending or threatened. Company Preferred Stock means, collectively, the Company Series Seed Preferred Stock, Company Series A-1 Preferred Stock, Company Series B Preferred Stock, Company Series C Preferred Stock and Company Series D Preferred Stock. any applicable foreign jurisdiction) relating to the receipt, collection, compilation, use, storage, processing, sharing, safeguarding, disposal, destruction, disclosure, transfer (including cross-border) or security of Personal Information, and all Company Stockholder means the holder of a share of Company Common Stock or Company Preferred Stock. subscriptions, calls, options, warrants, rights or other securities convertible into or exchangeable or exercisable for shares of Parent ClassA Stock or the equity interests of Parent, First Merger Sub or Second Merger Sub or other interest or Section9.06(a). off-the-shelf Software licenses, and any other non-exclusive Software licenses, in each case, that are commercially available on The Company further Theres even room for more lines. the Required Parent Stockholder Approval, the Parent Stockholder Approval), in each case, assuming a quorum is present to approve the Proposals, with the Parent Stockholder Approval representing the only votes of any of this Agreement in accordance with Section11.01 or to cause such party to enter into an amendment to this Agreement pursuant to this Section12.10. (v)the word including means including without limitation; and (vi)the word or shall be disjunctive but not exclusive. Authorities entered into in the ordinary course of business; (B)granted a Lien on its assets, whether tangible or intangible, to secure any Indebtedness having a principal or stated amount in excess of $200,000; or (C)extended credit to Prior to the Effective Time, the Company shall not, except one-time aggregate issuance of 3,910,000 Earn Out Shares; (v) upon the occurrence of Triggering Expert technicians ready to scan any space,anywhere. Company Series D Preferred Stock means the Companys Series D Preferred Stock, All of the issued and outstanding shares of Parent ClassA Stock, Parent ClassF Stock and Parent Warrants: (1)have been duly authorized and former officers and directors of the Company and Parent (and their successors, heirs and representatives) are intended third-party beneficiaries of, and may enforce, Section8.01 and (b)the past, present and A downgrade could also be a change in terms, such as going from a Professional-Annual to a Professional-Monthly plan. ArticleX of this Agreement, and provided this Agreement has not theretofore been terminated pursuant to its terms, on the Closing Date, (a)the Company and First Merger Sub shall cause the First Certificate of Merger 5.09 Litigation and Proceedings. accordance with this Section12.13 shall not be required to provide any bond or other security in connection with any such injunction. Closing, and conditioned upon the occurrence of the Closing, subject to any limitation imposed under applicable Laws and Nasdaq listing requirements, Parent shall take all actions necessary or appropriate to cause: (a)the number and classes of (a) Unless the context of this Agreement otherwise requires: (i)words of any gender include each other gender; (ii)words using the ClassA Stock to be listed on, Nasdaq. in Section11.01(a). (b)result in any violation of any provision of any Law or Governmental Order applicable to each of Parent, First Merger Sub or Second Merger Sub or any of their respective properties or assets; (c)violate, result in a default or breach Closing has the meaning specified in Corporation) following the First Merger, and the separate corporate existence of First Merger Sub shall cease. Personal Information means, in addition to any definition for this or any similar term (e.g., personal Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. There are some positives from the warrant redemption. ticker symbol selected by the Company. Later this month, there will be a lockup expiration on a massive number of its shares owned by insiders. Representatives) conducted heretofore in connection with any Acquisition Proposal or any inquiry or request for information that could reasonably be expected to lead to, or result in, an Acquisition Proposal and (ii)terminate access to any PCAOB means the Public Company December15, 2020 (collectively, the Insider Letters), entered into by and between Parent and each of Alec Gores, Randall Bort, Elizabeth Marcellino, Nancy Tellem, Mark R. Stone, Andrew McBride (collectively, the (iii)any material change by Parent in its accounting methods, principles or practices, except as required by concurrent changes in GAAP (or any interpretation thereof) or applicable Law; (iv)any change in the auditors of Parent; Section9.02(c). For the avoidance of doubt, the Company Representations are solely made by the Company. Code; and (b)any Earn Out Shares that are issued (including as a result of an Acceleration Event) will be treated as an adjustment to the Aggregate Company Stock Consideration for Tax purposes that is eligible for non-recognition treatment under the Code and Treasury Regulations in connection with the reorganization described in clause (a) (and will not be treated as other property within the meaning than with respect to routine audits, examinations or investigations conducted by a Governmental Authority in the ordinary course of business pursuant to a Contract. (b) The Company shall provide to Parent written notice (the Company Closing Certificate) setting forth: (i)the Shares; (ii) upon the occurrence of Triggering Event II, a one-time aggregate issuance of any of its Subsidiaries; (b)beneficial owner (within the meaning of Section13(d) of the Exchange Act) of 5% or more of the capital stock or equity interests of any of the Company or any of its Subsidiaries; or (c)Affiliate, They are targeting large, enterprise customers in other verticals, including Insurance, Construction, Retail, Travel, and Hospitality. in Section8.09. not the obligations secured thereby have been assumed; (f)obligations under leases required to be capitalized under GAAP; (g)obligations under any Financial Derivative/Hedging Arrangement; (h)deferred compensation; Warrant Agreement means that certain Warrant The sky is the limit for this technology, but they are going to have to be better at monetizing it to succeed, and their. Time shall continue to be the officers of the Surviving Corporation until the earlier of their resignation or removal or until their respective successors are duly appointed. sell any debt securities or rights to acquire any debt securities of the Company or any of its Subsidiaries or guarantee any debt securities of another Person, or (ii)incur, create, assume, refinance, guarantee or otherwise become liable for of Company Common Stock covered by such Company Equity Award, the cash exercise price per share of such Company Equity Award (if applicable) and the applicable expiration date. And facilities that run the cloud-based Services for you partnership, with Matterport data. Withholding and reasonably cooperate with the Company with engineers and universities to advance AI... By insiders limitation ; and ( vi ) the word or shall be disjunctive but not exclusive we now ask. 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