Sharp Therapeutics Corp. — M&A Activity 2024

Dec 21, 2024

MERGER AGREEMENT

MERGING

SEL ACQUISITIONCO INC.

WITH AND INTO

SHARP EDGE LABS, INC.

December 11, 2024

THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is made and entered into as of the date first above written, by and among SEL AcquisitionCo Inc., a Delaware corporation ("Merger Sub"), EVP Capital Inc., an Ontario corporation and the sole stockholder of Merger Sub ("EVP"), and Sharp Edge Labs, Inc., a Delaware corporation ("SEL").

WHEREAS, in accordance with Title 8, Section 251 of the Delaware General Corporation Law (the "DGCL"), each of the board of directors of SEL and Merger Sub has determined that it is advisable to merge Merger Sub with and into SEL and that the separate legal existence of Merger Sub shall cease and SEL shall continue as the surviving corporation (the "Surviving Corporation") on the terms and conditions hereinafter set forth (the "Merger") in accordance with the applicable provisions of the DGCL;

WHEREAS, the Merger constitutes one step in a business combination whereby EVP will acquire SEL in a reverse takeover (the "Transaction");

WHEREAS, capitalized terms used herein but not otherwise defined shall have the meanings ascribed to such terms in that certain arrangement agreement by and among Merger Sub, EVP and SEL dated June 28, 2024, as amended, amended and restated or supplemented from time to time (the "Arrangement Agreement") or the plan of arrangement attached to the Arrangement Agreement as Schedule "A" thereto (the "Plan of Arrangement"), as applicable.

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

ARTICLE I

THE MERGER

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1.1 The Merger. Subject to and in accordance with the terms and conditions set forth in this Agreement, at the Merger Effective Time (as defined in Section 1.3 hereof), Merger Sub shall be merged with and into SEL, which shall continue as the surviving corporation (the “Surviving Corporation”) in the Merger, and the separate existence of Merger Sub shall thereupon cease. The name of the Surviving Corporation shall be “Sharp Edge Labs, Inc.”. The Merger shall have the effects set forth in the DGCL.

1.2 Certificate of Merger. Following the execution of this Agreement, and the adoption thereof by the requisite stockholders of SEL and Merger Sub, SEL shall execute a certificate of merger (the “Certificate”) in the form attached hereto as Exhibit A, and SEL shall file the executed Certificate with the Secretary of State of the State of Delaware in accordance with the DGCL.

1.3 Merger Effective Time. The Merger will become effective at such time as the Certificate has been duly filed with the Secretary of State of the State of Delaware or at such later date or time as may be agreed by SEL and EVP in writing and specified in the Certificate in accordance with the DGCL, which time shall be concurrent with the Effective Time of the Plan of Arrangement (the “Merger Effective Time”).

ARTICLE II

THE SURVIVING CORPORATION

2.1 Certificate of Incorporation and Bylaws. The Certificate of Incorporation and the Bylaws of SEL in effect immediately prior to the Merger Effective Time shall be the Certificate of Incorporation and Bylaws of the Surviving Corporation, unless and until altered, amended or repealed in accordance with applicable law.

2.2 Directors and Officers. The directors and officers of SEL immediately prior to the Merger Effective Time shall be the directors and officers of the Surviving Corporation at and after the Merger Effective Time and shall serve in such capacities until their respective successors are duly elected and qualified or until their earlier resignation, removal or death.

ARTICLE III

TREATMENT OF SECURITIES

At the Merger Effective Time, by virtue of the Merger and without any action on the part of SEL or Merger Sub:

3.1 Merger Sub Shares. Each share of common stock of Merger Sub issued and outstanding immediately prior to the Merger Effective Time will be converted at the Merger Effective Time into one (1) share of common stock in the capital of the Surviving Corporation.

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3.2 SEL Shares. Each share of common stock of SEL issued and outstanding immediately prior to the Merger Effective Time will be converted, at the Merger Effective Time, into such number of Resulting Issuer Shares in accordance with the Plan of Arrangement.

3.3 Replacement Securities. Each SEL Option and SEL Warrant issued and outstanding immediately prior to the Merger Effective Time will be converted at the Merger Effective Time into a Replacement Option or Replacement Warrant, as the case may be, in accordance with the Plan of Arrangement.

3.4 Fractional Shares. No fractional Resulting Issuer Shares will be issued or delivered pursuant to the Merger. Any fractional share representing 0.50 or higher of a Resulting Issuer Share will be rounded up to the next whole number and any fractional share representing less than 0.50 of a Resulting Issuer Share will be rounded down to the next whole number.

ARTICLE IV

TERMINATION

4.1 Termination Prior to Merger Effective Time. Anything herein or elsewhere to the contrary notwithstanding, this Agreement may be terminated and abandoned by appropriate action of SEL or Merger Sub at any time prior to the Merger Effective Time. In the event of termination and abandonment, this Agreement shall become null and void and have no effect, and there shall be no liability in respect thereof on the part of any parties hereto or their respective directors, stockholders or officers.

ARTICLE V

DISSENT AND APPRAISAL RIGHTS

5.1 Dissenting Shares. For purposes of this Merger Agreement, "Dissenting Shares" means shares of common stock of SEL held as of the Merger Effective Time by a stockholder of SEL who has not voted such shares in favor of the adoption of this Merger Agreement and the Merger and with respect to which the holder shall have duly and properly demanded and perfected appraisal in accordance with Section 262 of the DGCL and such demand shall not have been effectively withdrawn or forfeited prior to the Merger Effective Time. Dissenting Shares shall not be converted into or represent the right to receive shares in the capital of the Resulting Issuer pursuant to Section 3.2 but instead shall be entitled to only such rights as are granted by Section 262 of the DGCL; provided, however, that if, after the Merger Effective Time, such stockholder's right to appraisal shall have ceased in accordance with the DGCL, if such stockholder has so forfeited or withdrawn his, her or its right to appraisal of Dissenting Shares or if a court of competent jurisdiction shall determine that such stockholder is not entitled to the relief provided by Section 262 of the DGCL, then, (i) as of the occurrence of such event, such holder's Dissenting Shares shall cease to be Dissenting Shares and shall be converted into and represent the right to receive the shares in the capital of the Resulting Issuer, issuable in respect of such shares of common stock of SEL pursuant to Sections 3.2 without interest thereon, and (ii) the Resulting Issuer shall deliver or cause to be delivered to such stockholder certificates representing the Resulting Issuer Shares to which such holder is entitled pursuant to Section 3.2.

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ARTICLE VI

MISCELLANEOUS

6.1 Income Tax Treatment. For U.S. federal (and applicable state and local) income tax purposes, (i) the Merger is intended to be treated as a “reorganization” within the meaning of Section 368(a) of the Code, (ii) this Merger Agreement, that certain Arrangement Agreement relating to the Transaction, and that certain Plan of Arrangement relating to the Transaction are intended to constitute a “plan of reorganization” within the meaning of the United States Treasury Regulation Section 1.368-2(g), (iii) the Resulting Issuer shall convert to a domestic corporation under Section 7874 of the Code by reason of the Merger, and (iv) the conversion of the Resulting Issuer to a domestic corporation by reason of Section 7874(b) of the Code and by reason of the Merger shall constitute a reorganization described in Section 368(a)(1)(F) of the Code that occurs at the end of the day immediately preceding the closing of the Merger as described in United States Treasury Regulation Section 1.7874-2(j)(1) (clauses (i)-(iv), collectively, the “Intended U.S. Tax Treatment”). The Parties (i) agree to report consistently with the Intended U.S. Tax Treatment on their income tax returns, and to not take any position for applicable income tax purposes (whether in the conduct of an audit, preparation of tax returns, or otherwise) that is inconsistent therewith and (ii) agree to not take any action, or knowingly fail to take any action, if such action or failure to act would reasonably be expected to prevent the Merger from being treated inconsistently with the Intended U.S. Tax Treatment.

6.2 Taking of Necessary Action. SEL and Merger Sub shall use all reasonable efforts to take all such actions as may be necessary or appropriate in order to effectuate the Merger under the DGCL, or any other applicable laws. If, at any time after the Merger Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets, property, rights, privileges, powers and franchises of SEL or Merger Sub, the officers and sole stockholder of the Surviving Corporation are fully authorized in the name of either of SEL or Merger Sub to take all such lawful and necessary actions.

6.3 Entire Agreement. This Agreement constitutes the entire agreement and understanding concerning the subject matter hereof between the parties hereto.

6.4 Binding Effect. This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns.

6.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.

6.6 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.

[Signature page follows]

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IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized representative to execute this Agreement as of the day and year first above written.

EVP CAPITAL INC.

By: (signed) "Lorne Sugarman"
Name: Lorne Sugarman
Title: Chief Executive Officer

SEL ACQUISITION CO INC.

By: (signed) "Lorne Sugarman"
Name: Lorne Sugarman
Title: Chief Executive Officer

SHARP EDGE LABS, INC.

By: (signed) "Scott Sneddon"
Name: Scott Sneddon
Title: Chief Executive Officer

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Exhibit A

CERTIFICATE OF MERGER OF

SEL ACQUISITIONCO INC.,

a Delaware corporation

WITH AND INTO

SHARP EDGE LABS, INC.,

a Delaware corporation

Pursuant to Title 8, Section 251 of the Delaware General Corporation Law, the undersigned corporation hereby certifies:

FIRST: The name of the surviving corporation is Sharp Edge Labs, Inc., a Delaware corporation, and the name of the corporation being merged into the surviving corporation is SEL AcquisitionCo Inc., a Delaware corporation.

SECOND: The Agreement and Plan of Merger dated as of June 28, 2024 (the "Merger Agreement") by and among SEL AcquisitionCo Inc., EVP Capital Inc., an Ontario corporation and the sole stockholder of SEL AcquisitionCo Inc., and Sharp Edge Labs, Inc., has been approved, adopted, executed and acknowledged by Sharp Edge Labs, Inc. and SEL AcquisitionCo Inc.

THIRD: Sharp Edge Labs, Inc., will be the name of the surviving corporation.

FOURTH: The certificate of incorporation of Sharp Edge Labs, Inc., as in effect immediately prior to the merger, shall be the certificate of incorporation of the surviving corporation.

FIFTH: The merger is to become effective upon the filing of this Certificate of Merger with the Delaware Secretary of State.

SIXTH: The Merger Agreement is on file at the principal place of business of the surviving corporation, the address of which is 2403 Sidney Street, Suite 264, Pittsburgh, PA 15203.

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SEVENTH: A copy of the Merger Agreement will be furnished by the surviving corporation, on request and without cost, to any stockholder of any constituent corporation.

IN WITNESS WHEREOF, the surviving corporation has caused this Certificate of Merger to be signed by an authorized person as of ___, 2024.

SHARP EDGE LABS, INC.,
a Delaware corporation

By: ________

Scott Sneddon, Chief Executive Officer