Filing Details

The Merger is expected to be consummated in the second quarter of 2024 (the “Closing”).  The obligation of the parties to consummate the Merger is subject to various conditions, including but not limited to the adoption of the Merger Agreement and the approval of the Merger and related transactions by holders of a majority in voting power of the outstanding shares of Class A Common Stock and Class B Common Stock entitled to vote thereon, voting as a single class, and 66⅔% of the outstanding shares of Class B Common Stock, voting as a separate class.  Following the execution of the Merger Agreement, Mr. Kemp and Dr. London executed and delivered to the Company a written consent adopting the Merger Agreement and approving the Merger, and Apogee, in its capacity as the sole stockholder of Merger Sub, executed and delivered to the Company a written consent approving the Merger Agreement and the Merger, thereby providing all required stockholder approvals for the Merger.  No further action by holders of Class A Common Stock, including the Reporting Persons, is required to complete the Merger.

Also in connection with the Merger, MH Orbit signed a debt commitment letter dated March 7, 2024 (the “Debt Commitment Letter”) with the Company.  Pursuant to the Debt Commitment Letter, MH Orbit agreed that, subject to the satisfaction (or express written waiver) by MH Orbit, in its sole and absolute discretion, of each of the conditions precedent set forth in the Debt Commitment Letter, MH Orbit (or one or more of its affiliates) would provide debt financing to the Company of up to $1.0 million, by no later than April 15, 2024, for the purpose of financing cash shortfalls at the Company during the period between the signing of the Merger Agreement and the Closing.  Such interim debt financing is expected to be effected by the Company’s issuance of Convertible Notes (as defined in Amendment No. 1) and, if elected by MH Orbit, warrants to purchase shares of Class A Common Stock (“Company Warrants”) in the same form as the New Warrants (defined in Amendment No. 3), provided, however, that any offer and sale of any Convertible Notes and Company Warrants pursuant to the Securities Purchase Agreement, dated as of August 4, 2023, as amended and modified, after March 7, 2024, requires the consent of holders of a majority in interest of the Convertible Notes or Company Warrants, as applicable, then outstanding.  The amount of any interim debt financing provided to the Company pursuant to the Debt Commitment Letter will reduce the value of the equity commitment provided for in JW 16’s Equity Commitment Letter.

Also in connection with the Merger, each of Apogee, Merger Sub, Mr. Kemp, Dr. London, JMCM, MH Orbit, JW 16, and SherpaVentures Fund II, LP (“ACME Fund II” and, together with JMCM, MH Orbit, and JW 16, the “Key Investors”), and certain other parties (together with the Specified Stockholders and the Key Investors, the “Investors”) entered into an interim investors’ agreement, dated as of March 7, 2024 (the “Interim Investors’ Agreement”).  The Interim Investors’ Agreement governs the relationship of the parties thereto pending the Closing, including in respect of the Merger Agreement, the Equity Commitment Letters signed by the Investors, the Warrant Exchange Agreement, and the Noteholder Conversion Agreement and the transactions contemplated thereby.  Among other things, the Interim Investors’ Agreement (i) affords Apogee the right to enforce the obligation of each Investor to fund its equity commitment under their respective Equity Commitment Letter, (ii) prohibits each Investor, without Investor Consent (as defined in the Interim Investors’ Agreement), and subject to limited exceptions, from selling, disposing, or otherwise transferring, directly or indirectly, any equity securities or debt securities of the Company prior to the Closing, (iii) requires Key Investor Consent (as defined in the Interim Investors’ Agreement) for Apogee and Merger Sub to take certain actions, including any agreement by Apogee, Merger Sub, or any Investor to amend, modify, provide any consent under, or waive any provision of the Merger Agreement, an Equity Commitment Letter, the Warrant Exchange Agreement, or the Noteholder Conversion Agreement, any agreement by Apogee or Merger Sub to terminate an Equity Commitment Letter, the Warrant Exchange Agreement, or the Noteholder Conversion Agreement, or the entrance by Apogee into a rollover agreement, and (iv) requires Apogee to terminate the Merger Agreement pursuant to Section 7.01(b)(i) thereof unless Apogee receives Key Investor Consent.

(a, b) Subject to the additional limitations on beneficial ownership by being members of a “group,” as discussed further below:

(ii)

Each of Mr. Fodera and Mr. Morcos may be deemed the beneficial owner of 2,087,070 shares of Class A Common Stock, representing approximately 9.99% of the shares of Class A Common Stock outstanding. This amount consists of 1,887,671 shares of Class A Common Stock that each of Mr. Fodera and Mr. Morcos has the right to acquire within 60 days upon exercise of Warrants and/or conversion of Convertible Notes, subject to the Warrants Blocker and the Convertible Notes Blocker, respectively, and 199,399 shares of Class A Common Stock.

Notwithstanding the foregoing, by virtue of the agreements and arrangements discussed herein, the Reporting Persons may be deemed to be members of a “group,” as such term is defined in Section 13(d)(3) of the Act and Rule 13d-5 thereunder, with the following beneficial owners of Class A Common Stock:

(i)

Adam London, who may be deemed to beneficially own 1,942,610 shares of Class A Common Stock, subject to the Beneficial Ownership Limitation (defined below) as applied to the group.  This amount includes (i) 1,896,237 shares of Class B Common Stock and (ii) 36,153 options that are exercisable or will be exercisable for Class A Common Stock within the next 60 days, and excludes an aggregate of approximately 1,469,959 shares of Class A Common Stock underlying Convertible Notes and Company Warrants;

(ii)

Chris Kemp and the Kemp Trust.  Mr. Kemp may be deemed to beneficially own 1,932,101 shares of Class A Common Stock, subject to the Beneficial Ownership Limitation as applied to the group. This amount includes (i) 1,806,376 shares of Class B Common Stock and (ii) 72,753 options that are exercisable or will be exercisable for Class A Common Stock within the next 60 days, and excludes an aggregate of approximately 2,753,347 shares of Class A Common Stock underlying Convertible Notes and Company Warrants;

(iii)

Scott Stanford, Acme Fund II, and affiliated entities, who may be deemed to beneficially own, in the aggregate, 1,922,496 shares of Class A Common Stock, subject to the Beneficial Ownership Limitation as applied to the group.  This amount excludes an aggregate of approximately 8,706,742 shares of Class A Common Stock underlying Convertible Notes and Company Warrants;

(v)

Astera, who may be deemed to beneficially own no shares of Class A Common Stock, subject to the Beneficial Ownership Limitation as applied to the group.  This amount excludes an aggregate of approximately 8,353,962 shares of Class A Common Stock underlying Convertible Notes and Company Warrants;

(vi)

Ulrich Gall, who may be deemed to beneficially own 2,667 shares of Class A Common Stock, subject to the Beneficial Ownership Limitation as applied to the group.  This amount excludes an aggregate of approximately 612,685 shares of Class A Common Stock underlying Convertible Notes and Company Warrants;

(vii)

ERAS Capital LLC, who may be deemed to beneficially own 1 share of Class A Common Stock, subject to the Beneficial Ownership Limitation as applied to the group.  This amount excludes an aggregate of approximately 1,670,791 shares of Class A Common Stock underlying Convertible Notes and Company Warrants.