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AGREEMENT AND PLAN OF MERGER

EXECUTION VERSION

dated as of

June 1, 2023

among

BRIGHTFIELD CLOUD SERVICES INC.

a Delaware corporation

("Parent"),

BCS DEVTOOLS MERGER SUB, INC.

a Delaware corporation and wholly owned subsidiary of Parent

("Merger Sub"),

and

CODELAUNCH LABS, INC.

a Delaware corporation

(the "Company")

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER (this "Agreement") is entered into as of June 1, 2023, by and among Brightfield Cloud Services Inc., a Delaware corporation ("Parent"), BCS DevTools Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent ("Merger Sub"), and Codelaunch Labs, Inc., a Delaware corporation (the "Company"). Parent, Merger Sub, and the Company are each referred to herein individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, Parent is a corporation duly organized and existing under the laws of the State of Delaware, with its principal offices located at 4200 Westgrove Boulevard, Suite 1100, Irving, Texas 75038, engaged primarily in the business of providing enterprise software-as-a-service ("SaaS") solutions and proprietary hardware appliances to enterprise customers worldwide, with approximately $480,000,000 in annual revenue;

WHEREAS, Merger Sub is a corporation duly organized and existing under the laws of the State of Delaware (Delaware file number 7916483; Employer Identification Number 93-1748206), formed on June 15, 2023, as a wholly owned subsidiary of Parent for the sole purpose of effectuating the merger contemplated hereby, with its registered office located c/o Capitol Registered Agents LLC, 1209 Orange Street, Wilmington, Delaware 19801, and which, since the date of its formation, has not conducted any business or activities other than those incidental to its formation and the negotiation, execution, and performance of this Agreement and the transactions contemplated hereby;

WHEREAS, the Company is a corporation duly organized and existing under the laws of the State of Delaware (Delaware file number 7834219; Employer Identification Number 84-3291057), with its principal offices located at 1607 East 6th Street, Suite 300, Austin, Texas 78702, engaged primarily in the business of developing and licensing continuous integration and continuous deployment ("CI/CD") pipeline orchestration software and automated code-review software, which the Company markets and sells as a SaaS product under the "Codelaunch" brand, and which generates approximately $4,800,000 in annual recurring revenue as of the date hereof;

WHEREAS, the respective boards of directors of Parent, Merger Sub, and the Company have each unanimously (i) determined that this Agreement and the transactions contemplated hereby, including the Merger (as defined below), are fair to, and in the best interests of, their respective corporations and stockholders, (ii) approved and adopted this Agreement and the transactions contemplated hereby, including the Merger, on the terms and subject to the conditions set forth herein, and (iii) declared the advisability of this Agreement;

WHEREAS, the board of directors of the Company has recommended that the stockholders of the Company adopt this Agreement and approve the Merger;

WHEREAS, the Merger is intended to be effected pursuant to Section 251 of the General Corporation Law of the State of Delaware (the "DGCL"), upon the terms and subject to the conditions set forth in this Agreement;

WHEREAS, the Parties desire to set forth certain representations, warranties, covenants, and agreements in connection with the Merger and to prescribe certain conditions to the consummation of the Merger;

WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to Parent's willingness to enter into this Agreement, each of Naveen Subramaniam, Elise Thornberry, and Marcus Okonkwo (each, a "Founder Earnout Participant" and collectively, the "Founder Earnout Participants") has agreed to enter into an employment agreement with Parent or a subsidiary of Parent (each, a "Founder Employment Agreement"), in the form attached hereto as Exhibit C, effective as of the Closing (as defined below); and

WHEREAS, Parent has obtained a buy-side representations and warranties insurance policy (Policy No. CSI-RWI-2023-07841) from Pinnacle Investors Specialty Insurance Company (the "R&W Insurance Policy"), with a policy limit of $8,000,000 and a self-insured retention of $550,000, brokered by Ashgrove Equity Partners Risk Advisors, Inc.

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants, and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:

ARTICLE I — DEFINITIONS

Section 1.1 — Definitions.

As used in this Agreement, the following terms shall have the meanings set forth below:

"Affiliate" means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. For purposes of this definition, "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract, or otherwise.

"Aggregate Merger Consideration" means the sum of Twenty-Two Million Dollars ($22,000,000), payable in cash, comprised of the Closing Cash Consideration, the Escrow Amount, and the Earnout Consideration (if any), allocated in the manner set forth in Section 3.1.

"Ancillary Agreements" means the Escrow Agreement, the Founder Employment Agreements, the Letter of Transmittal, and each other agreement, instrument, or document delivered in connection with this Agreement or the transactions contemplated hereby.

"Basket Amount" means Two Hundred Twenty Thousand Dollars ($220,000), which represents one percent (1%) of the Aggregate Merger Consideration.

"Business Day" means any day other than a Saturday, Sunday, or a day on which commercial banking institutions in New York, New York, Dallas, Texas, or Austin, Texas are authorized or required by Law to be closed.

"Cause" shall have the meaning ascribed to such term in the applicable Founder Employment Agreement.

"Certificate of Merger" means the Certificate of Merger to be executed and filed with the Secretary of State of the State of Delaware in connection with the Merger, substantially in the form attached hereto as Exhibit B.

"Closing" has the meaning set forth in Section 2.2.

"Closing Cash Consideration" means Sixteen Million Five Hundred Thousand Dollars ($16,500,000), representing seventy-five percent (75%) of the Aggregate Merger Consideration.

"Closing Date" has the meaning set forth in Section 2.2.

"Code" means the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder.

"Company" means Codelaunch Labs, Inc., a Delaware corporation.

"Company Common Stock" means the shares of common stock, par value $0.001 per share, of the Company.

"Company Disclosure Schedules" means the disclosure schedules delivered by the Company to Parent and Merger Sub concurrently with the execution of this Agreement.

"Company intellectual Property" means all intellectual Property that is owned by, or exclusively licensed to, the Company, including all intellectual Property embodied in or relating to the Company's CI/CD pipeline orchestration and automated code-review software products, the "Codelaunch" brand name and associated marks, all source code, object code, algorithms, databases, APIs, user interfaces, documentation, trade secrets, and all registrations and applications therefor.

"Company Material Adverse Effect" means any event, circumstance, development, change, occurrence, condition, or effect that, individually or in the aggregate with all other events, circumstances, developments, changes, occurrences, conditions, or effects, (a) has had, or would reasonably be expected to have, a material adverse effect on the business, financial condition, results of operations, assets, or liabilities of the Company, taken as a whole, or (b) would reasonably be expected to prevent or materially delay the Company's ability to consummate the transactions contemplated by this Agreement; provided, however, that none of the following, either alone or in combination, shall be deemed to constitute, nor shall any of the following be taken into account in determining whether there has been, a Company Material Adverse Effect: (i) changes in general economic, business, financial, or market conditions; (ii) changes in conditions generally affecting the software industry or the SaaS industry; (iii) changes in applicable Law or GAAP (or authoritative interpretations thereof); (iv) any natural disaster, pandemic, epidemic, act of terrorism, or outbreak or escalation of hostilities or war; (v) the announcement or pendency of this Agreement or the transactions contemplated hereby; (vi) any action taken by the Company at the written request of Parent; or (vii) any failure by the Company to meet any internal projections or forecasts (provided that the underlying causes of such failure may themselves be considered in determining whether a Company Material Adverse Effect has occurred), except, in the case of clauses (i) through (iv), to the extent such event, circumstance, development, change, occurrence, condition, or effect has a disproportionate adverse impact on the Company relative to other similarly situated companies operating in the same industries and geographies.

"Company Stockholders" means the holders of Company Common Stock immediately prior to the Effective Time.

"Confidential Information" means any and all non-public, proprietary, or confidential information or data, in whatever form, relating to any Party or its business, including trade secrets, customer lists, financial information, business plans, product roadmaps, source code, know-how, and other proprietary information.

"DGCL" means the General Corporation Law of the State of Delaware, as amended from time to time.

"Dissenting Shares" means any shares of Company Common Stock held by a stockholder who has properly exercised and perfected appraisal rights under Section 262 of the DGCL and has not withdrawn or lost such rights as of the Effective Time.

"Earnout" or "Earnout Consideration" means an aggregate amount of up to Three Million Three Hundred Thousand Dollars ($3,300,000), representing fifteen percent (15%) of the Aggregate Merger Consideration, payable in cash upon achievement of the Earnout Milestones as set forth in Section 3.5.

"Earnout Milestone 1" has the meaning set forth in Section 3.5(a)(i).

"Earnout Milestone 2" has the meaning set forth in Section 3.5(a)(ii).

"Earnout Period" means the period commencing on the Closing Date and ending on the date that is twenty-four (24) months following the Closing Date (i.e., commencing on July 22, 2023 and ending on July 22, 2025).

"Effective Time" has the meaning set forth in Section 2.3.

"Escrow Agent" means Lone Star Trust Company, N.A., in its capacity as escrow agent under the Escrow Agreement.

"Escrow Agreement" means that certain Escrow Agreement, substantially in the form attached hereto as Exhibit A, to be entered into on or before the Closing Date, by and among Parent, the Stockholder Representative, and the Escrow Agent.

"Escrow Amount" means Two Million Two Hundred Thousand Dollars ($2,200,000), representing ten percent (10%) of the Aggregate Merger Consideration.

"Escrow Account" means the escrow account established by the Escrow Agent under the Escrow Agreement, bearing account reference number LSTC-ESC-2023-004417.

"Escrow Release Date" means January 22, 2025, the date that is eighteen (18) months following the Closing Date.

"FIRPTA Certificate" means a certificate, substantially in the form attached hereto as Exhibit E, certifying that the Company is not, and has not been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Code, such that no withholding is required under Section 1445 of the Code with respect to the transactions contemplated by this Agreement.

"Founder Earnout Participants" means Naveen Subramaniam, Elise Thornberry, and Marcus Okonkwo, each in their individual capacities.

"Founder Employment Agreements" means the employment agreements, substantially in the form attached hereto as Exhibit C, to be entered into by and between Parent (or its applicable subsidiary) and each of the Founder Earnout Participants, effective as of the Closing Date.

"Fully Diluted Shares" means 10,000,000 shares of Company Common Stock outstanding on a fully diluted basis as of immediately prior to the Effective Time, calculated on an as-converted and as-exercised basis, including all shares issuable upon exercise or conversion of all outstanding options, warrants, and other rights to acquire Company Common Stock.

"Fundamental Representations" means the representations and warranties set forth in Section 4.1 (Organization and Good Standing), Section 4.2 (Authorization; Binding Agreement), Section 4.3 (Capitalization), Section 4.22 (Title to Assets), Section 5.1 (Organization and Good Standing), and Section 5.2 (Authorization; Binding Agreement).

"GAAP" means United States generally accepted accounting principles, as in effect from time to time, consistently applied.

"Governmental Authority" means any federal, state, provincial, local, municipal, foreign, or other governmental or quasi-governmental authority, body, or political subdivision thereof, or any agency, department, commission, board, bureau, instrumentality, court, tribunal, arbitral body, or other entity exercising executive, legislative, judicial, regulatory, taxing, or administrative functions of, or pertaining to, any of the foregoing, including any securities exchange or self-regulatory organization.

"Indemnification Cap" means Seven Million Seven Hundred Thousand Dollars ($7,700,000), representing thirty-five percent (35%) of the Aggregate Merger Consideration.

"Indemnified Party" means any Parent Indemnified Party or Stockholder Indemnified Party, as the context requires.

"Indemnifying Party" means, with respect to any Parent Indemnified Party, the Company Stockholders (acting through the Stockholder Representative), and with respect to any Stockholder Indemnified Party, Parent.

"intellectual Property" means all intellectual property and proprietary rights of every kind and nature, including all (a) patents and patent applications, (b) trademarks, service marks, trade names, domain names, trade dress, logos, and other source identifiers, together with all goodwill associated therewith, (c) copyrights and copyrightable works, (d) trade secrets, know-how, confidential information, inventions, processes, formulae, and technology, and (e) all registrations, applications, renewals, extensions, and other filings or rights relating to any of the foregoing.

"Knowledge" means, when used with respect to the Company, the actual knowledge, after reasonable inquiry of their direct reports, of Naveen Subramaniam (Chief Executive Officer), Elise Thornberry (Chief Technology Officer), Marcus Okonkwo (Chief Product Officer), and Dana Whitfield (Vice President, Engineering), and when used with respect to Parent, the actual knowledge, after reasonable inquiry of their direct reports, of Dominic Ferraro (Chief Executive Officer), Harold Ostrander (General Counsel), and Victoria Lansing (Chief Financial Officer).

"Law" means any federal, state, provincial, local, municipal, foreign, or other law, statute, legislation, constitution, principle of common law, resolution, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, ruling, directive, pronouncement, determination, decision, opinion, or interpretation, or any order, writ, injunction, judgment, or decree issued, enacted, adopted, passed, approved, promulgated, made, implemented, or otherwise put into effect by or under the authority of any Governmental Authority.

"Lien" means any lien, pledge, mortgage, deed of trust, security interest, charge, claim, encumbrance, easement, restriction, option, right of first refusal, right of first offer, community property interest, or other similar restriction of any kind or nature, whether voluntarily incurred or arising by operation of Law.

"Losses" means any and all damages, losses, liabilities, obligations, claims, demands, assessments, judgments, penalties, fines, costs, and expenses (including reasonable attorneys' fees, accountants' fees, experts' fees, and other costs and expenses of investigation, defense, and enforcement of rights hereunder).

"Material Adverse Effect" means a Company Material Adverse Effect, unless the context requires otherwise.

"Merger" has the meaning set forth in Section 2.1.

"Merger Sub" means BCS DevTools Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent.

"Milestone 1 Payment" means One Million Six Hundred Fifty Thousand Dollars ($1,650,000), being the amount payable upon achievement of Earnout Milestone 1.

"Milestone 2 Payment" means One Million Six Hundred Fifty Thousand Dollars ($1,650,000), being the amount payable upon achievement of Earnout Milestone 2.

"Officer's Closing Certificate" means the certificate to be delivered by the Company to Parent at the Closing pursuant to Section 8.2(d), substantially in the form attached hereto as Exhibit F.

"Ordinary Course of Business" means the ordinary and usual course of business of the Company consistent with its past custom and practice (including with respect to quantity, frequency, and amount).

"Outside Date" means July 16, 2023, being the date that is forty-five (45) days following the date of this Agreement.

"Parent" means Brightfield Cloud Services Inc., a Delaware corporation.

"Parent Indemnified Parties" has the meaning set forth in Section 9.2.

"Paying Agent" means Pinnacle National Bank, N.A., in its capacity as paying agent for the payment of the Merger Consideration as set forth in Section 3.4.

"Per Share Closing Cash Consideration" means One Dollar and Sixty-Five Cents ($1.65), representing the quotient of the Closing Cash Consideration ($16,500,000) divided by the Fully Diluted Shares (10,000,000).

"Per Share Earnout Consideration" means up to Thirty-Three Cents ($0.33), representing the quotient of the maximum Earnout Consideration ($3,300,000) divided by the Fully Diluted Shares (10,000,000), payable solely to the Founder Earnout Participants on the terms set forth in Section 3.5.

"Per Share Escrow Amount" means Twenty-Two Cents ($0.22), representing the quotient of the Escrow Amount ($2,200,000) divided by the Fully Diluted Shares (10,000,000).

"Person" means any individual, corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any limited liability company or joint stock company), firm, or other enterprise, association, organization, entity, or Governmental Authority.

"Pre-Closing Taxes" means any Taxes of or with respect to the Company attributable to any taxable period (or portion thereof) ending on or before the Closing Date.

"R&W Insurance Policy" means the buy-side representations and warranties insurance policy (Policy No. CSI-RWI-2023-07841) issued by Pinnacle Investors Specialty Insurance Company in favor of Parent, with a policy limit of Eight Million Dollars ($8,000,000) and a self-insured retention of Five Hundred Fifty Thousand Dollars ($550,000), brokered by Ashgrove Equity Partners Risk Advisors, Inc. (Philip Graves, Senior Vice President).

"Stockholder Indemnified Parties" has the meaning set forth in Section 9.3.

"Stockholder Representative" means Naveen Subramaniam, in his capacity as representative of the Company Stockholders, as further described in Section 3.8.

"Surviving Corporation" has the meaning set forth in Section 2.1.

"Tax" or "Taxes" means (a) any and all federal, state, provincial, local, municipal, foreign, or other taxes, charges, fees, levies, duties, imposts, or other assessments of any kind whatsoever, including all income, gross receipts, franchise, profits, capital gains, capital stock, transfer, sales, use, ad valorem, value added, inventory, personal property, real property, stamp, excise, payroll, withholding, social security, unemployment, disability, alternative or add-on minimum, estimated, or other taxes, and any interest, penalties, additions to tax, or additional amounts imposed by any Governmental Authority with respect thereto, and (b) any liability for the payment of any amounts described in clause (a) as a result of being a member of an affiliated, consolidated, combined, unitary, or similar group, as a transferee or successor, by contract, or otherwise.

"Tax Return" means any return, declaration, report, claim for refund, estimate, information return, or statement relating to Taxes, including any schedule or attachment thereto and any amendment thereof.

"Transaction Expenses" means all fees, costs, and expenses incurred by or on behalf of the Company in connection with the negotiation, preparation, execution, and performance of this Agreement and the transactions contemplated hereby, including (a) any investment banking, brokerage, or financial advisory fees, including the advisory fee payable to Ashburn Park Capital LLC, (b) legal fees and expenses, including fees payable to Caldwell, Raines & Fitch LLP, (c) accounting fees and expenses, (d) any change-of-control, transaction, retention, or similar bonuses payable to any employee or service provider of the Company as a result of the consummation of the transactions contemplated by this Agreement, and (e) any other fees, costs, or expenses that are expressly payable by the Company in connection with the transactions contemplated by this Agreement, in each case to the extent not paid prior to the Closing.

Section 1.2 — Interpretation.

Unless the context of this Agreement otherwise requires: (a) words of any gender include each other gender; (b) words using the singular or plural number also include the plural or singular number, respectively; (c) the terms "hereof," "herein," "hereby," "hereto," and derivative or similar words refer to this entire Agreement; (d) the terms "Article," "Section," "Schedule," "Exhibit," and "Annex" refer to the specified Article, Section, Schedule, Exhibit, or Annex of or to this Agreement, unless otherwise specified; (e) the word "including" (and correlative words) means "including, without limitation"; (f) the word "or" is not exclusive; (g) the word "extent" in the phrase "to the extent" means the degree to which a subject or other thing extends, and such phrase does not mean simply "if"; (h) references to "dollars" or "$" mean United States dollars; (i) references to any statute, regulation, or other Law include all statutory and regulatory provisions consolidating, amending, replacing, or supplementing such statute, regulation, or Law, and any reference to any statute, regulation, or Law shall include all rules and regulations promulgated thereunder, unless the context requires otherwise; (j) references to any contract or agreement mean such contract or agreement as amended, supplemented, or otherwise modified from time to time in accordance with its terms; (k) references to any Person include the successors and permitted assigns of such Person; (l) the table of contents and headings set forth in this Agreement are for convenience of reference purposes only and shall not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof; and (m) any reference to any federal, state, local, or foreign statute or Law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context otherwise requires.

ARTICLE II — THE MERGER

Section 2.1 — The Merger.

Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with Section 251 of the DGCL, at the Effective Time, the Company shall be merged with and into Merger Sub (the "Merger"), whereupon the separate corporate existence of the Company shall cease and Merger Sub shall continue as the surviving corporation under the name "BCS DevTools Merger Sub, Inc." (or such other name as Parent may determine) (the "Surviving Corporation") and shall continue to be governed by the laws of the State of Delaware. Following the Effective Time, the Surviving Corporation shall be a wholly owned subsidiary of Parent. For the avoidance of doubt, this Merger is structured as a forward merger of the Company with and into Merger Sub.

Section 2.2 — Closing.

The closing of the Merger (the "Closing") shall take place on July 22, 2023 (the "Closing Date"), remotely via the electronic exchange of documents and signatures (including by portable document format (.pdf) and electronic signature), unless the Parties agree in writing to another date, time, or place. All deliveries, payments, and other transactions occurring at the Closing shall be deemed to occur simultaneously and no delivery, payment, or transaction shall be deemed to have been made or to have occurred until all such deliveries, payments, and transactions have been made or have occurred.

Section 2.3 — Effective Time.

On the Closing Date, or as promptly as practicable following the satisfaction or waiver (to the extent permitted by applicable Law) of all conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at such time), the Parties shall cause a Certificate of Merger, substantially in the form attached hereto as Exhibit B, to be duly executed, acknowledged, and filed with the Secretary of State of the State of Delaware in accordance with Section 251 of the DGCL. The Certificate of Merger was filed with the Secretary of State of the State of Delaware on July 18, 2023, with an effective time specified therein as July 22, 2023. The Merger shall become effective at the time of such filing or at such later time as may be agreed upon by the Parties and specified in the Certificate of Merger (the "Effective Time").

Section 2.4 — Effects of the Merger.

The Merger shall have the effects set forth in this Agreement, the Certificate of Merger, and the applicable provisions of the DGCL, including Section 259 of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, (a) all of the property, rights, privileges, powers, immunities, and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and (b) all debts, liabilities, obligations, restrictions, disabilities, and duties of the Company and Merger Sub shall become the debts, liabilities, obligations, restrictions, disabilities, and duties of the Surviving Corporation.

Section 2.5 — Certificate of Incorporation of the Surviving Corporation.

At the Effective Time, the certificate of incorporation of Merger Sub, as in effect immediately prior to the Effective Time, shall become the certificate of incorporation of the Surviving Corporation until thereafter duly amended in accordance with applicable Law and the terms of such certificate of incorporation; provided, however, that at the Effective Time, the name of the Surviving Corporation set forth in the certificate of incorporation of the Surviving Corporation shall be changed to such name as Parent may determine.

Section 2.6 — Bylaws of the Surviving Corporation.

At the Effective Time, the bylaws of Merger Sub, as in effect immediately prior to the Effective Time, shall become the bylaws of the Surviving Corporation until thereafter duly amended in accordance with applicable Law, the certificate of incorporation of the Surviving Corporation, and the terms of such bylaws.

Section 2.7 — Directors and Officers of the Surviving Corporation.

(a) At the Effective Time, the directors of Merger Sub immediately prior to the Effective Time shall become the initial directors of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until the earlier of their resignation or removal or until their respective successors are duly elected or appointed and qualified.

(b) At the Effective Time, the officers of Merger Sub immediately prior to the Effective Time shall become the initial officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until the earlier of their resignation or removal or until their respective successors are duly elected or appointed and qualified.

ARTICLE III — MERGER CONSIDERATION; EFFECT ON CAPITAL STOCK; EXCHANGE PROCEDURES

Section 3.1 — Aggregate Merger Consideration.

The aggregate consideration for the Merger shall be Twenty-Two Million Dollars ($22,000,000) (the "Aggregate Merger Consideration"), payable in cash, allocated as follows:

(a) Closing Cash Consideration. An amount equal to Sixteen Million Five Hundred Thousand Dollars ($16,500,000) (the "Closing Cash Consideration"), payable at the Closing in accordance with Section 3.4;

(b) Escrow Amount. An amount equal to Two Million Two Hundred Thousand Dollars ($2,200,000) (the "Escrow Amount"), to be deposited with Lone Star Trust Company, N.A., as Escrow Agent, at the Closing in accordance with the Escrow Agreement, as further described in Section 3.6; and

(c) Earnout Consideration. An amount of up to a maximum of Three Million Three Hundred Thousand Dollars ($3,300,000) (the "Earnout Consideration"), payable upon achievement of the Earnout Milestones as set forth in Section 3.5.

Section 3.2 — Effect on Capital Stock.

At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company, or any holder of any securities of the Company or Merger Sub:

(a) Company Common Stock. Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than (i) Dissenting Shares and (ii) shares held by the Company as treasury stock or owned by Parent, Merger Sub, or any wholly owned subsidiary of Parent or Merger Sub immediately prior to the Effective Time) shall be automatically converted into, and shall thereafter represent solely, the right to receive, subject to the terms and conditions of this Agreement:

(i) the Per Share Closing Cash Consideration of One Dollar and Sixty-Five Cents ($1.65) per share, payable in cash, without interest;

(ii) the Per Share Escrow Amount of Twenty-Two Cents ($0.22) per share (representing such holder's pro rata share of the Escrow Amount), subject to reduction for indemnification obligations of the Company Stockholders under Article IX; and

(iii) solely with respect to shares of Company Common Stock held by the Founder Earnout Participants, the contingent right to receive the Per Share Earnout Consideration of up to Thirty-Three Cents ($0.33) per share, payable in cash, without interest, subject to and in accordance with the terms and conditions of Section 3.5.

As of the Effective Time, all such shares of Company Common Stock shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of a certificate or book-entry share that immediately prior to the Effective Time represented any such shares of Company Common Stock shall cease to have any rights with respect thereto, except the right to receive the applicable Merger Consideration upon surrender of such certificate or book-entry share in accordance with Section 3.4, without interest.

(b) Merger Sub Shares. At the Effective Time, each share of common stock, par value $0.001 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one (1) validly issued, fully paid, and nonassessable share of common stock, par value $0.001 per share, of the Surviving Corporation. From and after the Effective Time, all certificates representing common stock of Merger Sub shall be deemed for all purposes to evidence ownership of, and to represent, the shares of common stock of the Surviving Corporation into which such shares have been converted.

(c) Treasury Shares; Parent-Owned Shares. Each share of Company Common Stock held in the treasury of the Company or owned by Parent, Merger Sub, or any wholly owned subsidiary of Parent or Merger Sub immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, be automatically canceled and extinguished without any conversion thereof, and no payment or other consideration shall be made or delivered in respect thereof.

Section 3.3 — Treatment of Company Options and Other Equity Awards.

(a) At the Effective Time, each outstanding option to purchase shares of Company Common Stock (whether granted under the Company's 2019 Stock Option and Incentive Plan or otherwise) that is, as of immediately prior to the Effective Time, vested and has an exercise price per share that is less than the sum of the Per Share Closing Cash Consideration and the Per Share Escrow Amount (each, an "In-the-Money Option") shall be canceled and converted into the right to receive from Parent (through the Paying Agent) an amount in cash, without interest, equal to the product of (i) the excess, if any, of the sum of the Per Share Closing Cash Consideration ($1.65) plus the Per Share Escrow Amount ($0.22), over the exercise price per share applicable to such In-the-Money Option, multiplied by (ii) the number of shares of Company Common Stock subject to such In-the-Money Option immediately prior to the Effective Time, less any applicable Tax withholding. The portion of such payment attributable to the Per Share Escrow Amount shall be withheld and deposited into the Escrow Account on the same basis as set forth in Section 3.6.

(b) At the Effective Time, each outstanding option to purchase shares of Company Common Stock that is, as of immediately prior to the Effective Time, (i) unvested or (ii) has an exercise price per share equal to or greater than the sum of the Per Share Closing Cash Consideration and the Per Share Escrow Amount (each, an "Underwater Option" or "Unvested Option"), shall be canceled and extinguished without any conversion thereof, and no payment or other consideration shall be made or delivered in respect thereof.

(c) Prior to the Effective Time, the Company shall take all actions necessary to (i) give effect to the provisions of this Section 3.3 (including delivering all required notices to holders of Company options), (ii) terminate the Company's 2019 Stock Option and Incentive Plan, effective as of the Effective Time, and (iii) ensure that, immediately after the Effective Time, no Person shall have any right under the Company's 2019 Stock Option and Incentive Plan or any award agreement thereunder to acquire any equity interest in the Company, the Surviving Corporation, Parent, or any of their respective Affiliates.

Section 3.4 — Exchange Procedures; Paying Agent.

(a) Paying Agent. Parent hereby appoints, and the Company hereby consents to the appointment of, Pinnacle National Bank, N.A. as paying agent (the "Paying Agent") for the payment of the Merger Consideration to the holders of Company Common Stock and holders of In-the-Money Options in accordance with this Article III.

(b) Exchange Fund. Prior to the Effective Time, Parent shall deposit, or cause to be deposited, with the Paying Agent, by wire transfer of immediately available funds, cash in an aggregate amount equal to the Closing Cash Consideration of Sixteen Million Five Hundred Thousand Dollars ($16,500,000) (such aggregate amount, together with any interest and earnings thereon, the "Exchange Fund"). The Exchange Fund shall be invested by the Paying Agent as directed by Parent in short-term, direct obligations of the United States of America or obligations the principal of and interest on which are unconditionally guaranteed by the United States of America, and any interest or earnings on the Exchange Fund shall be for the account of Parent. In no event shall the Exchange Fund be invested in a manner that could result in a loss of principal.

(c) Letter of Transmittal. Promptly after the Effective Time (and in any event within five (5) Business Days thereof), the Paying Agent shall mail or cause to be mailed to each holder of record of Company Common Stock as of immediately prior to the Effective Time (i) a letter of transmittal substantially in the form attached hereto as Exhibit D (the "Letter of Transmittal"), which shall specify that delivery shall be effected, and risk of loss and title to any certificates representing shares of Company Common Stock (each, a "Certificate") shall pass, only upon proper delivery of such Certificates (or affidavits of loss in lieu thereof, together with any required indemnity bond) to the Paying Agent, and (ii) instructions for use in effecting the surrender of Certificates in exchange for payment of the applicable Merger Consideration.

(d) Payment. Upon receipt by the Paying Agent of a duly executed Letter of Transmittal (together with all Certificates, or customary affidavits of loss in lieu thereof with any required indemnity bond), the Paying Agent shall promptly deliver to each former holder of Company Common Stock the applicable Merger Consideration, allocated among the holders of record as follows:

Each former holder's share of the Escrow Amount as set forth above shall be deposited into the Escrow Account at Closing and shall be subject to the provisions of Section 3.6 and the Escrow Agreement.

(e) No Interest. No interest shall be paid or shall accrue on any cash payable upon the surrender of any Certificate or book-entry share.

(f) Lost Certificates. If any Certificate shall have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen, or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may reasonably direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will pay to such Person the applicable Merger Consideration payable in respect of the shares of Company Common Stock represented by such lost, stolen, or destroyed Certificate.

(g) Withholding. Each of Parent, Merger Sub, the Surviving Corporation, and the Paying Agent (and any of their respective agents) shall be entitled to deduct and withhold from any amounts payable pursuant to this Agreement to any holder of Company Common Stock or Company options such amounts as may be required to be deducted and withheld therefrom under the Code, or any applicable provision of state, local, or foreign Tax Law, with respect to the making of such payment. To the extent that amounts are so withheld and remitted to the appropriate Governmental Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

Section 3.5 — Earnout.

(a) Earnout Milestones. Following the Closing, in addition to the Closing Cash Consideration and the Escrow Amount, the Founder Earnout Participants shall be eligible to receive the Earnout Consideration, up to a maximum aggregate amount of Three Million Three Hundred Thousand Dollars ($3,300,000), payable in cash, upon the achievement of the following milestones (each, an "Earnout Milestone"):

(i) Earnout Milestone 1 (50% of maximum Earnout Consideration = $1,650,000 (the "Milestone 1 Payment")): Earnout Milestone 1 shall be deemed achieved if the Codelaunch platform (as integrated into Parent's product suite) reaches two hundred (200) or more enterprise customer accounts (as determined in accordance with Parent's standard customer-account classification methodology, consistently applied) by the date that is twelve (12) months following the Closing Date (i.e., by July 22, 2024). For the avoidance of doubt, "enterprise customer accounts" shall include only customer accounts that generate annual recurring revenue of at least $10,000 per annum and that have executed a binding subscription agreement.

(ii) Earnout Milestone 2 (50% of maximum Earnout Consideration = $1,650,000 (the "Milestone 2 Payment")): Earnout Milestone 2 shall be deemed achieved if the Codelaunch platform (as integrated into Parent's product suite) generates annual recurring revenue of Eight Million Dollars ($8,000,000) or more, attributable to the Codelaunch product line, during the twenty-four (24)-month Earnout Period ending on July 22, 2025. For the avoidance of doubt, "annual recurring revenue" or "ARR" shall be calculated using the methodology set forth in Schedule 3.5 to the Company Disclosure Schedules, consistently applied throughout the Earnout Period.

(b) Earnout Period. The Earnout Period shall commence on the Closing Date and end on the date that is twenty-four (24) months following the Closing Date (i.e., July 22, 2023 through July 22, 2025). The Earnout Milestones shall be measured only during the Earnout Period, and no Earnout Consideration shall be payable with respect to any period following the expiration of the Earnout Period.

(c) Earnout Recipients and Allocation. The Earnout Consideration shall be payable exclusively to the Founder Earnout Participants (and shall not be payable to any other Company Stockholders, including Ridgeway Ventures Fund II, LP, any angel investors, or any option holders), allocated pro rata among the Founder Earnout Participants based on their respective equity ownership percentages relative to one another (i.e., each Founder Earnout Participant's respective ownership of Company Common Stock as a fraction of the aggregate ownership of Company Common Stock held by all Founder Earnout Participants), as follows:

(d) Employment Condition. Each Founder Earnout Participant's right to receive his or her share of the Earnout Consideration with respect to any Earnout Milestone shall be contingent upon such Founder Earnout Participant remaining a full-time employee of Parent or any subsidiary of Parent (including the Surviving Corporation) through and including the applicable Earnout Milestone measurement date. If a Founder Earnout Participant's employment is terminated prior to an applicable Earnout Milestone measurement date by (i) voluntary resignation by such Founder Earnout Participant or (ii) termination for Cause (as defined in the applicable Founder Employment Agreement) by Parent or its applicable subsidiary, then such Founder Earnout Participant shall forfeit his or her right to receive any unpaid portion of the Earnout Consideration attributable to any Earnout Milestone for which the applicable measurement date has not yet occurred as of the date of such termination of employment. Any such forfeited amount shall be redistributed pro rata among the remaining Founder Earnout Participants who remain employed as of the applicable Earnout Milestone measurement date, in accordance with their relative proportionate interests (recalculated to exclude the forfeiting Founder Earnout Participant). For the avoidance of doubt, if a Founder Earnout Participant's employment is terminated by Parent or its subsidiary without Cause, or due to such Founder Earnout Participant's death or Disability (as defined in the applicable Founder Employment Agreement), such Founder Earnout Participant (or his or her estate, as applicable) shall remain eligible to receive his or her share of the Earnout Consideration as if such termination had not occurred.

(e) Good-Faith Operation Covenant. Parent covenants and agrees that, during the Earnout Period, Parent shall operate the Codelaunch product line in good faith and in the ordinary course of business consistent with Parent's integration plan as in effect from time to time; provided, however, that Parent shall retain reasonable business discretion with respect to the operation of the Codelaunch product line and shall have no obligation to operate such product line as a standalone business or to prioritize the achievement of the Earnout Milestones over any other business considerations, including the integration of the Codelaunch product line with Parent's existing products and services. Parent shall not, however, take any action with the primary purpose of avoiding payment of the Earnout Consideration.

(f) Determination of Achievement. Parent shall, within thirty (30) days following each Earnout Milestone measurement date (i.e., within thirty (30) days following July 22, 2024 with respect to Earnout Milestone 1 and within thirty (30) days following July 22, 2025 with respect to Earnout Milestone 2), deliver to the Stockholder Representative a written notice (an "Earnout Notice") setting forth in reasonable detail Parent's determination of whether the applicable Earnout Milestone has been achieved, including the supporting data and calculations therefor. The Stockholder Representative and his advisors shall have reasonable access, during normal business hours and upon reasonable prior notice, to the books, records, and personnel of Parent and the Surviving Corporation that are reasonably relevant to the determination of the Earnout Milestones.

(g) Dispute Resolution. If the Stockholder Representative disagrees with Parent's determination set forth in any Earnout Notice, the Stockholder Representative shall, within thirty (30) days after receipt of such Earnout Notice, deliver a written objection to Parent (an "Earnout Objection Notice") setting forth in reasonable detail the basis for such disagreement and the Stockholder Representative's proposed determination. Parent and the Stockholder Representative shall use good-faith efforts to resolve any such disagreement within thirty (30) days after Parent's receipt of the Earnout Objection Notice. If Parent and the Stockholder Representative are unable to resolve such disagreement within such thirty (30)-day period, the dispute shall be submitted to an independent certified public accounting firm of national reputation mutually agreed upon by Parent and the Stockholder Representative (the "Independent Accountant"). If Parent and the Stockholder Representative are unable to agree upon the identity of the Independent Accountant within ten (10) Business Days, the Independent Accountant shall be Firth Corvinal CPAs LLP (or its successor). The Independent Accountant shall resolve the dispute within thirty (30) days after its engagement, acting as an expert and not as an arbitrator, and its determination shall be final and binding upon the Parties and shall not be subject to appeal or further review. The fees and expenses of the Independent Accountant shall be borne by the Party whose position the Independent Accountant does not adopt, or if the Independent Accountant's determination falls between the respective positions of Parent and the Stockholder Representative, such fees and expenses shall be allocated proportionally based on the relative distance of each Party's position from the Independent Accountant's final determination.

(h) Payment. Any Earnout Consideration determined to have been earned upon the achievement of an Earnout Milestone shall be paid by Parent (or its designee) to the applicable Founder Earnout Participants by wire transfer of immediately available funds within ten (10) Business Days following the final determination of achievement of the applicable Earnout Milestone (whether by agreement of Parent and the Stockholder Representative, by determination of the Independent Accountant, or by the expiration of the Stockholder Representative's objection period without delivery of an Earnout Objection Notice), allocated among the Founder Earnout Participants as set forth in Section 3.5(c) (as adjusted pursuant to Section 3.5(d), if applicable).

Section 3.6 — Escrow Arrangement.

(a) At the Closing, Parent shall deposit, or cause to be deposited, Two Million Two Hundred Thousand Dollars ($2,200,000) (the "Escrow Amount") with Lone Star Trust Company, N.A., as escrow agent (the "Escrow Agent"), by wire transfer of immediately available funds, into escrow account reference number LSTC-ESC-2023-004417 (the "Escrow Account"), to be held and distributed in accordance with the terms and conditions of the Escrow Agreement, substantially in the form attached hereto as Exhibit A.

(b) The Escrow Amount represents each Company Stockholder's pro rata share (at $0.22 per share) withheld from the Merger Consideration as security for the indemnification obligations of the Company Stockholders under Article IX. The Escrow Amount shall be held in the Escrow Account and invested by the Escrow Agent in accordance with the investment instructions set forth in the Escrow Agreement. Any interest or earnings on the Escrow Amount shall be allocated pro rata among the Company Stockholders in accordance with their respective ownership percentages and shall be treated as additional Merger Consideration for all Tax purposes.

(c) On the Escrow Release Date (January 22, 2025), being the date that is eighteen (18) months following the Closing Date, any portion of the Escrow Amount (including any interest and earnings thereon) remaining in the Escrow Account that is not then subject to any pending, unresolved, or unsatisfied indemnification claim by a Parent Indemnified Party under Article IX shall be released to the Company Stockholders (through the Stockholder Representative) by the Escrow Agent, pro rata in accordance with their respective ownership percentages as set forth in Section 3.4(d). Any amounts subject to then-pending indemnification claims shall continue to be held in escrow until such claims are finally resolved, at which time any remaining amounts shall be released to the Company Stockholders or paid to the Parent Indemnified Parties, as applicable, in accordance with the Escrow Agreement.

Section 3.7 — Dissenting Shares.

(a) Notwithstanding anything in this Agreement to the contrary, shares of Company Common Stock that are outstanding immediately prior to the Effective Time and that are held by a holder who has not voted in favor of the Merger or consented thereto in writing and who is entitled to demand and has properly demanded appraisal of such shares in accordance with Section 262 of the DGCL ("Dissenting Shares") shall not be converted into the right to receive any portion of the Merger Consideration, but instead the holder thereof shall be entitled to receive payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262 of the DGCL, unless and until such holder shall have failed to perfect, or shall have effectively withdrawn or lost, such holder's right to appraisal under the DGCL.

(b) If any holder of Dissenting Shares shall fail to perfect, or shall effectively withdraw or lose, the right to appraisal with respect to such shares under Section 262 of the DGCL, then, as of the later of the Effective Time and the occurrence of such event, such holder's shares shall automatically be converted into and represent only the right to receive the applicable Merger Consideration as provided in Section 3.2(a), without interest thereon, upon surrender of the Certificate or Certificates representing such shares or in the case of book-entry shares, upon compliance with the exchange procedures set forth in Section 3.4.

(c) The Company shall give Parent prompt written notice of any demands for appraisal of any shares of Company Common Stock received by the Company, any withdrawals of such demands, and any other instruments served pursuant to the DGCL relating to appraisal rights. The Company shall not, without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed), make any payment with respect to, settle or offer to settle, or otherwise negotiate with any holder of Dissenting Shares regarding any demands for appraisal.

Section 3.8 — Stockholder Representative.

(a) Appointment. Naveen Subramaniam is hereby irrevocably appointed as the representative and agent of, and is hereby authorized and empowered to act on behalf of, each Company Stockholder (the "Stockholder Representative") for all purposes under this Agreement and the Ancillary Agreements, including to (i) execute and deliver the Escrow Agreement and all amendments thereto, (ii) receive and review any notices, claims, or other communications from Parent Indemnified Parties under Article IX, (iii) dispute, negotiate, compromise, settle, or otherwise resolve any and all indemnification claims under Article IX, (iv) resolve any disputes regarding the Earnout Milestones under Section 3.5, (v) authorize the release of any amounts from the Escrow Account, (vi) engage counsel, accountants, and other advisors at the expense of the Company Stockholders, and (vii) take all other actions necessary or desirable to carry out the intents and purposes of this Agreement and the Ancillary Agreements.

(b) Authority. The Stockholder Representative shall have full power and authority, acting alone, to take all actions that the Stockholder Representative considers necessary or appropriate in connection with this Agreement and the Ancillary Agreements, and each Company Stockholder shall be bound by all actions taken by the Stockholder Representative in such capacity. Each Company Stockholder hereby irrevocably grants to the Stockholder Representative full power and authority to execute and deliver any and all documents and instruments and to take any and all actions that the Stockholder Representative deems necessary or appropriate in fulfilling his duties and responsibilities as Stockholder Representative. The power of attorney granted herein is coupled with an interest and shall be irrevocable by any Company Stockholder in any manner or for any reason.

(c) Limitation of Liability. The Stockholder Representative shall not be liable to any Company Stockholder for any act taken, or omission made, in good faith by the Stockholder Representative in connection with the performance of his duties and responsibilities as Stockholder Representative, except to the extent that such act or omission constitutes willful misconduct or gross negligence.

(d) Indemnification of Stockholder Representative. Each Company Stockholder agrees, severally and not jointly (pro rata in accordance with such Company Stockholder's ownership percentage), to indemnify and hold harmless the Stockholder Representative from and against any and all Losses incurred by the Stockholder Representative in connection with the performance of his duties and responsibilities as Stockholder Representative, except to the extent that such Losses result from the willful misconduct or gross negligence of the Stockholder Representative. The Stockholder Representative shall be entitled to deduct from any amounts distributable to the Company Stockholders under this Agreement or the Escrow Agreement any amounts necessary to reimburse the Stockholder Representative for any out-of-pocket expenses incurred in the performance of his duties hereunder.

(e) Successor. In the event that the Stockholder Representative resigns, becomes permanently unable or unwilling to serve, or dies, a successor Stockholder Representative shall be appointed by the vote or written consent of Company Stockholders holding a majority of the shares of Company Common Stock outstanding immediately prior to the Effective Time (with each Company Stockholder's shares counted for this purpose in accordance with the ownership percentages set forth in Section 3.4(d)). If no successor Stockholder Representative is appointed within thirty (30) days of the occurrence of any such vacancy, Parent may petition the Court of Chancery of the State of Delaware for the appointment of a successor Stockholder Representative.

ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except as set forth in the Company Disclosure Schedules delivered by the Company to Parent and Merger Sub concurrently with the execution of this Agreement (which Company Disclosure Schedules shall be arranged in sections and subsections corresponding to the numbered and lettered sections and subsections contained in this Article IV, it being understood that disclosure of any item in any section or subsection of the Company Disclosure Schedules shall be deemed disclosure with respect to any other section or subsection of this Article IV to which the relevance of such item is reasonably apparent on the face of such disclosure), the Company hereby represents and warrants to Parent and Merger Sub, as of the date hereof and as of the Closing Date, as follows:

Section 4.1 — Organization and Good Standing.

The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware (Delaware file number 7834219). The Company has all requisite corporate power and authority to own, lease, and operate its properties and assets and to carry on its business as presently conducted and as proposed to be conducted. The Company is duly qualified or licensed to transact business and is in good standing as a foreign corporation in each jurisdiction where the nature of its business or the ownership, leasing, or operation of its properties makes such qualification or licensing necessary, including the State of Texas. The Company has made available to Parent true, correct, and complete copies of the Company's certificate of incorporation and bylaws, each as currently in effect, and the Company is not in violation of any provision thereof. This Section 4.1 is a Fundamental Representation.

Section 4.2 — Authorization; Binding Agreement.

The Company has all requisite corporate power and authority to execute, deliver, and perform this Agreement and each Ancillary Agreement to which it is or will be a party and to consummate the transactions contemplated hereby and thereby, including the Merger. The execution, delivery, and performance of this Agreement and each such Ancillary Agreement by the Company, and the consummation of the transactions contemplated hereby and thereby, including the Merger, have been duly and validly authorized by the board of directors of the Company, and, other than the adoption of this Agreement by the holders of a majority of the outstanding shares of Company Common Stock (which has been obtained as set forth in Section 6.4), no other corporate proceedings on the part of the Company are necessary to authorize the execution, delivery, and performance of this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Company and constitutes a legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or similar Laws of general application affecting the enforcement of creditors' rights generally and (b) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a

AGREEMENT AND PLAN OF MERGER
EXECUTION VERSION
dated as of
June 1, 2023
among
BRIGHTFIELD CLOUD SERVICES INC.
a Delaware corporation
("Parent"),
BCS DEVTOOLS MERGER SUB, INC.
a Delaware corporation and wholly owned subsidiary of Parent
("Merger Sub"),
and
CODELAUNCH LABS, INC.
a Delaware corporation
(the "Company")
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is entered into as of June 1, 2023, by and among Brightfield Cloud Services Inc., a Delaware corporation ("Parent"), BCS DevTools Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent ("Merger Sub"), and Codelaunch Labs, Inc., a Delaware corporation (the "Company"). Parent, Merger Sub, and the Company are each referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Parent is a corporation duly organized and existing under the laws of the State of Delaware, with its principal offices located at 4200 Westgrove Boulevard, Suite 1100, Irving, Texas 75038, engaged primarily in the business of providing enterprise software-as-a-service ("SaaS") solutions and proprietary hardware appliances to enterprise customers worldwide, with approximately $480,000,000 in annual revenue;
WHEREAS, Merger Sub is a corporation duly organized and existing under the laws of the State of Delaware (Delaware file number 7916483; Employer Identification Number 93-1748206), formed on June 15, 2023, as a wholly owned subsidiary of Parent for the sole purpose of effectuating the merger contemplated hereby, with its registered office located c/o Capitol Registered Agents LLC, 1209 Orange Street, Wilmington, Delaware 19801, and which, since the date of its formation, has not conducted any business or activities other than those incidental to its formation and the negotiation, execution, and performance of this Agreement and the transactions contemplated hereby;
WHEREAS, the Company is a corporation duly organized and existing under the laws of the State of Delaware (Delaware file number 7834219; Employer Identification Number 84-3291057), with its principal offices located at 1607 East 6th Street, Suite 300, Austin, Texas 78702, engaged primarily in the business of developing and licensing continuous integration and continuous deployment ("CI/CD") pipeline orchestration software and automated code-review software, which the Company markets and sells as a SaaS product under the "Codelaunch" brand, and which generates approximately $4,800,000 in annual recurring revenue as of the date hereof;
WHEREAS, the respective boards of directors of Parent, Merger Sub, and the Company have each unanimously (i) determined that this Agreement and the transactions contemplated hereby, including the Merger (as defined below), are fair to, and in the best interests of, their respective corporations and stockholders, (ii) approved and adopted this Agreement and the transactions contemplated hereby, including the Merger, on the terms and subject to the conditions set forth herein, and (iii) declared the advisability of this Agreement;
WHEREAS, the board of directors of the Company has recommended that the stockholders of the Company adopt this Agreement and approve the Merger;
WHEREAS, the Merger is intended to be effected pursuant to Section 251 of the General Corporation Law of the State of Delaware (the "DGCL"), upon the terms and subject to the conditions set forth in this Agreement;
WHEREAS, the Parties desire to set forth certain representations, warranties, covenants, and agreements in connection with the Merger and to prescribe certain conditions to the consummation of the Merger;
WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to Parent's willingness to enter into this Agreement, each of Naveen Subramaniam, Elise Thornberry, and Marcus Okonkwo (each, a "Founder Earnout Participant" and collectively, the "Founder Earnout Participants") has agreed to enter into an employment agreement with Parent or a subsidiary of Parent (each, a "Founder Employment Agreement"), in the form attached hereto as Exhibit C, effective as of the Closing (as defined below); and
WHEREAS, Parent has obtained a buy-side representations and warranties insurance policy (Policy No. CSI-RWI-2023-07841) from Pinnacle Investors Specialty Insurance Company (the "R&W Insurance Policy"), with a policy limit of $8,000,000 and a self-insured retention of $550,000, brokered by Ashgrove Equity Partners Risk Advisors, Inc.
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants, and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Definitions.
As used in this Agreement, the following terms shall have the meanings set forth below:
"Affiliate" means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. For purposes of this definition, "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract, or otherwise.
"Aggregate Merger Consideration" means the sum of Twenty-Two Million Dollars ($22,000,000), payable in cash, comprised of the Closing Cash Consideration, the Escrow Amount, and the Earnout Consideration (if any), allocated in the manner set forth in Section 3.1.
"Ancillary Agreements" means the Escrow Agreement, the Founder Employment Agreements, the Letter of Transmittal, and each other agreement, instrument, or document delivered in connection with this Agreement or the transactions contemplated hereby.
"Basket Amount" means Two Hundred Twenty Thousand Dollars ($220,000), which represents one percent (1%) of the Aggregate Merger Consideration.
"Business Day" means any day other than a Saturday, Sunday, or a day on which commercial banking institutions in New York, New York, Dallas, Texas, or Austin, Texas are authorized or required by Law to be closed.
"Cause" shall have the meaning ascribed to such term in the applicable Founder Employment Agreement.
"Certificate of Merger" means the Certificate of Merger to be executed and filed with the Secretary of State of the State of Delaware in connection with the Merger, substantially in the form attached hereto as Exhibit B.
"Closing" has the meaning set forth in Section 2.2.
"Closing Cash Consideration" means Sixteen Million Five Hundred Thousand Dollars ($16,500,000), representing seventy-five percent (75%) of the Aggregate Merger Consideration.
"Closing Date" has the meaning set forth in Section 2.2.
"Code" means the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder.
"Company" means Codelaunch Labs, Inc., a Delaware corporation.
"Company Common Stock" means the shares of common stock, par value $0.001 per share, of the Company.
"Company Disclosure Schedules" means the disclosure schedules delivered by the Company to Parent and Merger Sub concurrently with the execution of this Agreement.
"Company intellectual Property" means all intellectual Property that is owned by, or exclusively licensed to, the Company, including all intellectual Property embodied in or relating to the Company's CI/CD pipeline orchestration and automated code-review software products, the "Codelaunch" brand name and associated marks, all source code, object code, algorithms, databases, APIs, user interfaces, documentation, trade secrets, and all registrations and applications therefor.
"Company Material Adverse Effect" means any event, circumstance, development, change, occurrence, condition, or effect that, individually or in the aggregate with all other events, circumstances, developments, changes, occurrences, conditions, or effects, (a) has had, or would reasonably be expected to have, a material adverse effect on the business, financial condition, results of operations, assets, or liabilities of the Company, taken as a whole, or (b) would reasonably be expected to prevent or materially delay the Company's ability to consummate the transactions contemplated by this Agreement; provided, however, that none of the following, either alone or in combination, shall be deemed to constitute, nor shall any of the following be taken into account in determining whether there has been, a Company Material Adverse Effect: (i) changes in general economic, business, financial, or market conditions; (ii) changes in conditions generally affecting the software industry or the SaaS industry; (iii) changes in applicable Law or GAAP (or authoritative interpretations thereof); (iv) any natural disaster, pandemic, epidemic, act of terrorism, or outbreak or escalation of hostilities or war; (v) the announcement or pendency of this Agreement or the transactions contemplated hereby; (vi) any action taken by the Company at the written request of Parent; or (vii) any failure by the Company to meet any internal projections or forecasts (provided that the underlying causes of such failure may themselves be considered in determining whether a Company Material Adverse Effect has occurred), except, in the case of clauses (i) through (iv), to the extent such event, circumstance, development, change, occurrence, condition, or effect has a disproportionate adverse impact on the Company relative to other similarly situated companies operating in the same industries and geographies.
"Company Stockholders" means the holders of Company Common Stock immediately prior to the Effective Time.
"Confidential Information" means any and all non-public, proprietary, or confidential information or data, in whatever form, relating to any Party or its business, including trade secrets, customer lists, financial information, business plans, product roadmaps, source code, know-how, and other proprietary information.
"DGCL" means the General Corporation Law of the State of Delaware, as amended from time to time.
"Dissenting Shares" means any shares of Company Common Stock held by a stockholder who has properly exercised and perfected appraisal rights under Section 262 of the DGCL and has not withdrawn or lost such rights as of the Effective Time.
"Earnout" or "Earnout Consideration" means an aggregate amount of up to Three Million Three Hundred Thousand Dollars ($3,300,000), representing fifteen percent (15%) of the Aggregate Merger Consideration, payable in cash upon achievement of the Earnout Milestones as set forth in Section 3.5.
"Earnout Milestone 1" has the meaning set forth in Section 3.5(a)(i).
"Earnout Milestone 2" has the meaning set forth in Section 3.5(a)(ii).
"Earnout Period" means the period commencing on the Closing Date and ending on the date that is twenty-four (24) months following the Closing Date (i.e., commencing on July 22, 2023 and ending on July 22, 2025).
"Effective Time" has the meaning set forth in Section 2.3.
"Escrow Agent" means Lone Star Trust Company, N.A., in its capacity as escrow agent under the Escrow Agreement.
"Escrow Agreement" means that certain Escrow Agreement, substantially in the form attached hereto as Exhibit A, to be entered into on or before the Closing Date, by and among Parent, the Stockholder Representative, and the Escrow Agent.
"Escrow Amount" means Two Million Two Hundred Thousand Dollars ($2,200,000), representing ten percent (10%) of the Aggregate Merger Consideration.
"Escrow Account" means the escrow account established by the Escrow Agent under the Escrow Agreement, bearing account reference number LSTC-ESC-2023-004417.
"Escrow Release Date" means January 22, 2025, the date that is eighteen (18) months following the Closing Date.
"FIRPTA Certificate" means a certificate, substantially in the form attached hereto as Exhibit E, certifying that the Company is not, and has not been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Code, such that no withholding is required under Section 1445 of the Code with respect to the transactions contemplated by this Agreement.
"Founder Earnout Participants" means Naveen Subramaniam, Elise Thornberry, and Marcus Okonkwo, each in their individual capacities.
"Founder Employment Agreements" means the employment agreements, substantially in the form attached hereto as Exhibit C, to be entered into by and between Parent (or its applicable subsidiary) and each of the Founder Earnout Participants, effective as of the Closing Date.
"Fully Diluted Shares" means 10,000,000 shares of Company Common Stock outstanding on a fully diluted basis as of immediately prior to the Effective Time, calculated on an as-converted and as-exercised basis, including all shares issuable upon exercise or conversion of all outstanding options, warrants, and other rights to acquire Company Common Stock.
"Fundamental Representations" means the representations and warranties set forth in Section 4.1 (Organization and Good Standing), Section 4.2 (Authorization; Binding Agreement), Section 4.3 (Capitalization), Section 4.22 (Title to Assets), Section 5.1 (Organization and Good Standing), and Section 5.2 (Authorization; Binding Agreement).
"GAAP" means United States generally accepted accounting principles, as in effect from time to time, consistently applied.
"Governmental Authority" means any federal, state, provincial, local, municipal, foreign, or other governmental or quasi-governmental authority, body, or political subdivision thereof, or any agency, department, commission, board, bureau, instrumentality, court, tribunal, arbitral body, or other entity exercising executive, legislative, judicial, regulatory, taxing, or administrative functions of, or pertaining to, any of the foregoing, including any securities exchange or self-regulatory organization.
"Indemnification Cap" means Seven Million Seven Hundred Thousand Dollars ($7,700,000), representing thirty-five percent (35%) of the Aggregate Merger Consideration.
"Indemnified Party" means any Parent Indemnified Party or Stockholder Indemnified Party, as the context requires.
"Indemnifying Party" means, with respect to any Parent Indemnified Party, the Company Stockholders (acting through the Stockholder Representative), and with respect to any Stockholder Indemnified Party, Parent.
"intellectual Property" means all intellectual property and proprietary rights of every kind and nature, including all (a) patents and patent applications, (b) trademarks, service marks, trade names, domain names, trade dress, logos, and other source identifiers, together with all goodwill associated therewith, (c) copyrights and copyrightable works, (d) trade secrets, know-how, confidential information, inventions, processes, formulae, and technology, and (e) all registrations, applications, renewals, extensions, and other filings or rights relating to any of the foregoing.
"Knowledge" means, when used with respect to the Company, the actual knowledge, after reasonable inquiry of their direct reports, of Naveen Subramaniam (Chief Executive Officer), Elise Thornberry (Chief Technology Officer), Marcus Okonkwo (Chief Product Officer), and Dana Whitfield (Vice President, Engineering), and when used with respect to Parent, the actual knowledge, after reasonable inquiry of their direct reports, of Dominic Ferraro (Chief Executive Officer), Harold Ostrander (General Counsel), and Victoria Lansing (Chief Financial Officer).
"Law" means any federal, state, provincial, local, municipal, foreign, or other law, statute, legislation, constitution, principle of common law, resolution, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, ruling, directive, pronouncement, determination, decision, opinion, or interpretation, or any order, writ, injunction, judgment, or decree issued, enacted, adopted, passed, approved, promulgated, made, implemented, or otherwise put into effect by or under the authority of any Governmental Authority.
"Lien" means any lien, pledge, mortgage, deed of trust, security interest, charge, claim, encumbrance, easement, restriction, option, right of first refusal, right of first offer, community property interest, or other similar restriction of any kind or nature, whether voluntarily incurred or arising by operation of Law.
"Losses" means any and all damages, losses, liabilities, obligations, claims, demands, assessments, judgments, penalties, fines, costs, and expenses (including reasonable attorneys' fees, accountants' fees, experts' fees, and other costs and expenses of investigation, defense, and enforcement of rights hereunder).
"Material Adverse Effect" means a Company Material Adverse Effect, unless the context requires otherwise.
"Merger" has the meaning set forth in Section 2.1.
"Merger Sub" means BCS DevTools Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent.
"Milestone 1 Payment" means One Million Six Hundred Fifty Thousand Dollars ($1,650,000), being the amount payable upon achievement of Earnout Milestone 1.
"Milestone 2 Payment" means One Million Six Hundred Fifty Thousand Dollars ($1,650,000), being the amount payable upon achievement of Earnout Milestone 2.
"Officer's Closing Certificate" means the certificate to be delivered by the Company to Parent at the Closing pursuant to Section 8.2(d), substantially in the form attached hereto as Exhibit F.
"Ordinary Course of Business" means the ordinary and usual course of business of the Company consistent with its past custom and practice (including with respect to quantity, frequency, and amount).
"Outside Date" means July 16, 2023, being the date that is forty-five (45) days following the date of this Agreement.
"Parent" means Brightfield Cloud Services Inc., a Delaware corporation.
"Parent Indemnified Parties" has the meaning set forth in Section 9.2.
"Paying Agent" means Pinnacle National Bank, N.A., in its capacity as paying agent for the payment of the Merger Consideration as set forth in Section 3.4.
"Per Share Closing Cash Consideration" means One Dollar and Sixty-Five Cents ($1.65), representing the quotient of the Closing Cash Consideration ($16,500,000) divided by the Fully Diluted Shares (10,000,000).
"Per Share Earnout Consideration" means up to Thirty-Three Cents ($0.33), representing the quotient of the maximum Earnout Consideration ($3,300,000) divided by the Fully Diluted Shares (10,000,000), payable solely to the Founder Earnout Participants on the terms set forth in Section 3.5.
"Per Share Escrow Amount" means Twenty-Two Cents ($0.22), representing the quotient of the Escrow Amount ($2,200,000) divided by the Fully Diluted Shares (10,000,000).
"Person" means any individual, corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any limited liability company or joint stock company), firm, or other enterprise, association, organization, entity, or Governmental Authority.
"Pre-Closing Taxes" means any Taxes of or with respect to the Company attributable to any taxable period (or portion thereof) ending on or before the Closing Date.
"R&W Insurance Policy" means the buy-side representations and warranties insurance policy (Policy No. CSI-RWI-2023-07841) issued by Pinnacle Investors Specialty Insurance Company in favor of Parent, with a policy limit of Eight Million Dollars ($8,000,000) and a self-insured retention of Five Hundred Fifty Thousand Dollars ($550,000), brokered by Ashgrove Equity Partners Risk Advisors, Inc. (Philip Graves, Senior Vice President).
"Stockholder Indemnified Parties" has the meaning set forth in Section 9.3.
"Stockholder Representative" means Naveen Subramaniam, in his capacity as representative of the Company Stockholders, as further described in Section 3.8.
"Surviving Corporation" has the meaning set forth in Section 2.1.
"Tax" or "Taxes" means (a) any and all federal, state, provincial, local, municipal, foreign, or other taxes, charges, fees, levies, duties, imposts, or other assessments of any kind whatsoever, including all income, gross receipts, franchise, profits, capital gains, capital stock, transfer, sales, use, ad valorem, value added, inventory, personal property, real property, stamp, excise, payroll, withholding, social security, unemployment, disability, alternative or add-on minimum, estimated, or other taxes, and any interest, penalties, additions to tax, or additional amounts imposed by any Governmental Authority with respect thereto, and (b) any liability for the payment of any amounts described in clause (a) as a result of being a member of an affiliated, consolidated, combined, unitary, or similar group, as a transferee or successor, by contract, or otherwise.
"Tax Return" means any return, declaration, report, claim for refund, estimate, information return, or statement relating to Taxes, including any schedule or attachment thereto and any amendment thereof.
"Transaction Expenses" means all fees, costs, and expenses incurred by or on behalf of the Company in connection with the negotiation, preparation, execution, and performance of this Agreement and the transactions contemplated hereby, including (a) any investment banking, brokerage, or financial advisory fees, including the advisory fee payable to Ashburn Park Capital LLC, (b) legal fees and expenses, including fees payable to Caldwell, Raines & Fitch LLP, (c) accounting fees and expenses, (d) any change-of-control, transaction, retention, or similar bonuses payable to any employee or service provider of the Company as a result of the consummation of the transactions contemplated by this Agreement, and (e) any other fees, costs, or expenses that are expressly payable by the Company in connection with the transactions contemplated by this Agreement, in each case to the extent not paid prior to the Closing.
Section 1.2 — Interpretation.
Unless the context of this Agreement otherwise requires: (a) words of any gender include each other gender; (b) words using the singular or plural number also include the plural or singular number, respectively; (c) the terms "hereof," "herein," "hereby," "hereto," and derivative or similar words refer to this entire Agreement; (d) the terms "Article," "Section," "Schedule," "Exhibit," and "Annex" refer to the specified Article, Section, Schedule, Exhibit, or Annex of or to this Agreement, unless otherwise specified; (e) the word "including" (and correlative words) means "including, without limitation"; (f) the word "or" is not exclusive; (g) the word "extent" in the phrase "to the extent" means the degree to which a subject or other thing extends, and such phrase does not mean simply "if"; (h) references to "dollars" or "$" mean United States dollars; (i) references to any statute, regulation, or other Law include all statutory and regulatory provisions consolidating, amending, replacing, or supplementing such statute, regulation, or Law, and any reference to any statute, regulation, or Law shall include all rules and regulations promulgated thereunder, unless the context requires otherwise; (j) references to any contract or agreement mean such contract or agreement as amended, supplemented, or otherwise modified from time to time in accordance with its terms; (k) references to any Person include the successors and permitted assigns of such Person; (l) the table of contents and headings set forth in this Agreement are for convenience of reference purposes only and shall not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof; and (m) any reference to any federal, state, local, or foreign statute or Law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context otherwise requires.
ARTICLE II — THE MERGER
Section 2.1 — The Merger.
Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with Section 251 of the DGCL, at the Effective Time, the Company shall be merged with and into Merger Sub (the "Merger"), whereupon the separate corporate existence of the Company shall cease and Merger Sub shall continue as the surviving corporation under the name "BCS DevTools Merger Sub, Inc." (or such other name as Parent may determine) (the "Surviving Corporation") and shall continue to be governed by the laws of the State of Delaware. Following the Effective Time, the Surviving Corporation shall be a wholly owned subsidiary of Parent. For the avoidance of doubt, this Merger is structured as a forward merger of the Company with and into Merger Sub.
Section 2.2 — Closing.
The closing of the Merger (the "Closing") shall take place on July 22, 2023 (the "Closing Date"), remotely via the electronic exchange of documents and signatures (including by portable document format (.pdf) and electronic signature), unless the Parties agree in writing to another date, time, or place. All deliveries, payments, and other transactions occurring at the Closing shall be deemed to occur simultaneously and no delivery, payment, or transaction shall be deemed to have been made or to have occurred until all such deliveries, payments, and transactions have been made or have occurred.
Section 2.3 — Effective Time.
On the Closing Date, or as promptly as practicable following the satisfaction or waiver (to the extent permitted by applicable Law) of all conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at such time), the Parties shall cause a Certificate of Merger, substantially in the form attached hereto as Exhibit B, to be duly executed, acknowledged, and filed with the Secretary of State of the State of Delaware in accordance with Section 251 of the DGCL. The Certificate of Merger was filed with the Secretary of State of the State of Delaware on July 18, 2023, with an effective time specified therein as July 22, 2023. The Merger shall become effective at the time of such filing or at such later time as may be agreed upon by the Parties and specified in the Certificate of Merger (the "Effective Time").
Section 2.4 — Effects of the Merger.
The Merger shall have the effects set forth in this Agreement, the Certificate of Merger, and the applicable provisions of the DGCL, including Section 259 of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, (a) all of the property, rights, privileges, powers, immunities, and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and (b) all debts, liabilities, obligations, restrictions, disabilities, and duties of the Company and Merger Sub shall become the debts, liabilities, obligations, restrictions, disabilities, and duties of the Surviving Corporation.
Section 2.5 — Certificate of Incorporation of the Surviving Corporation.
At the Effective Time, the certificate of incorporation of Merger Sub, as in effect immediately prior to the Effective Time, shall become the certificate of incorporation of the Surviving Corporation until thereafter duly amended in accordance with applicable Law and the terms of such certificate of incorporation; provided, however, that at the Effective Time, the name of the Surviving Corporation set forth in the certificate of incorporation of the Surviving Corporation shall be changed to such name as Parent may determine.
Section 2.6 — Bylaws of the Surviving Corporation.
At the Effective Time, the bylaws of Merger Sub, as in effect immediately prior to the Effective Time, shall become the bylaws of the Surviving Corporation until thereafter duly amended in accordance with applicable Law, the certificate of incorporation of the Surviving Corporation, and the terms of such bylaws.
Section 2.7 — Directors and Officers of the Surviving Corporation.
(a) At the Effective Time, the directors of Merger Sub immediately prior to the Effective Time shall become the initial directors of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until the earlier of their resignation or removal or until their respective successors are duly elected or appointed and qualified.
(b) At the Effective Time, the officers of Merger Sub immediately prior to the Effective Time shall become the initial officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until the earlier of their resignation or removal or until their respective successors are duly elected or appointed and qualified.
ARTICLE III — MERGER CONSIDERATION; EFFECT ON CAPITAL STOCK; EXCHANGE PROCEDURES
Section 3.1 — Aggregate Merger Consideration.
The aggregate consideration for the Merger shall be Twenty-Two Million Dollars ($22,000,000) (the "Aggregate Merger Consideration"), payable in cash, allocated as follows:
(a) Closing Cash Consideration. An amount equal to Sixteen Million Five Hundred Thousand Dollars ($16,500,000) (the "Closing Cash Consideration"), payable at the Closing in accordance with Section 3.4;
(b) Escrow Amount. An amount equal to Two Million Two Hundred Thousand Dollars ($2,200,000) (the "Escrow Amount"), to be deposited with Lone Star Trust Company, N.A., as Escrow Agent, at the Closing in accordance with the Escrow Agreement, as further described in Section 3.6; and
(c) Earnout Consideration. An amount of up to a maximum of Three Million Three Hundred Thousand Dollars ($3,300,000) (the "Earnout Consideration"), payable upon achievement of the Earnout Milestones as set forth in Section 3.5.
Section 3.2 — Effect on Capital Stock.
At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company, or any holder of any securities of the Company or Merger Sub:
(a) Company Common Stock. Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than (i) Dissenting Shares and (ii) shares held by the Company as treasury stock or owned by Parent, Merger Sub, or any wholly owned subsidiary of Parent or Merger Sub immediately prior to the Effective Time) shall be automatically converted into, and shall thereafter represent solely, the right to receive, subject to the terms and conditions of this Agreement:
(i) the Per Share Closing Cash Consideration of One Dollar and Sixty-Five Cents ($1.65) per share, payable in cash, without interest;
(ii) the Per Share Escrow Amount of Twenty-Two Cents ($0.22) per share (representing such holder's pro rata share of the Escrow Amount), subject to reduction for indemnification obligations of the Company Stockholders under Article IX; and
(iii) solely with respect to shares of Company Common Stock held by the Founder Earnout Participants, the contingent right to receive the Per Share Earnout Consideration of up to Thirty-Three Cents ($0.33) per share, payable in cash, without interest, subject to and in accordance with the terms and conditions of Section 3.5.
As of the Effective Time, all such shares of Company Common Stock shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of a certificate or book-entry share that immediately prior to the Effective Time represented any such shares of Company Common Stock shall cease to have any rights with respect thereto, except the right to receive the applicable Merger Consideration upon surrender of such certificate or book-entry share in accordance with Section 3.4, without interest.
(b) Merger Sub Shares. At the Effective Time, each share of common stock, par value $0.001 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one (1) validly issued, fully paid, and nonassessable share of common stock, par value $0.001 per share, of the Surviving Corporation. From and after the Effective Time, all certificates representing common stock of Merger Sub shall be deemed for all purposes to evidence ownership of, and to represent, the shares of common stock of the Surviving Corporation into which such shares have been converted.
(c) Treasury Shares; Parent-Owned Shares. Each share of Company Common Stock held in the treasury of the Company or owned by Parent, Merger Sub, or any wholly owned subsidiary of Parent or Merger Sub immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, be automatically canceled and extinguished without any conversion thereof, and no payment or other consideration shall be made or delivered in respect thereof.
Section 3.3 — Treatment of Company Options and Other Equity Awards.
(a) At the Effective Time, each outstanding option to purchase shares of Company Common Stock (whether granted under the Company's 2019 Stock Option and Incentive Plan or otherwise) that is, as of immediately prior to the Effective Time, vested and has an exercise price per share that is less than the sum of the Per Share Closing Cash Consideration and the Per Share Escrow Amount (each, an "In-the-Money Option") shall be canceled and converted into the right to receive from Parent (through the Paying Agent) an amount in cash, without interest, equal to the product of (i) the excess, if any, of the sum of the Per Share Closing Cash Consideration ($1.65) plus the Per Share Escrow Amount ($0.22), over the exercise price per share applicable to such In-the-Money Option, multiplied by (ii) the number of shares of Company Common Stock subject to such In-the-Money Option immediately prior to the Effective Time, less any applicable Tax withholding. The portion of such payment attributable to the Per Share Escrow Amount shall be withheld and deposited into the Escrow Account on the same basis as set forth in Section 3.6.
(b) At the Effective Time, each outstanding option to purchase shares of Company Common Stock that is, as of immediately prior to the Effective Time, (i) unvested or (ii) has an exercise price per share equal to or greater than the sum of the Per Share Closing Cash Consideration and the Per Share Escrow Amount (each, an "Underwater Option" or "Unvested Option"), shall be canceled and extinguished without any conversion thereof, and no payment or other consideration shall be made or delivered in respect thereof.
(c) Prior to the Effective Time, the Company shall take all actions necessary to (i) give effect to the provisions of this Section 3.3 (including delivering all required notices to holders of Company options), (ii) terminate the Company's 2019 Stock Option and Incentive Plan, effective as of the Effective Time, and (iii) ensure that, immediately after the Effective Time, no Person shall have any right under the Company's 2019 Stock Option and Incentive Plan or any award agreement thereunder to acquire any equity interest in the Company, the Surviving Corporation, Parent, or any of their respective Affiliates.
Section 3.4 — Exchange Procedures; Paying Agent.
(a) Paying Agent. Parent hereby appoints, and the Company hereby consents to the appointment of, Pinnacle National Bank, N.A. as paying agent (the "Paying Agent") for the payment of the Merger Consideration to the holders of Company Common Stock and holders of In-the-Money Options in accordance with this Article III.
(b) Exchange Fund. Prior to the Effective Time, Parent shall deposit, or cause to be deposited, with the Paying Agent, by wire transfer of immediately available funds, cash in an aggregate amount equal to the Closing Cash Consideration of Sixteen Million Five Hundred Thousand Dollars ($16,500,000) (such aggregate amount, together with any interest and earnings thereon, the "Exchange Fund"). The Exchange Fund shall be invested by the Paying Agent as directed by Parent in short-term, direct obligations of the United States of America or obligations the principal of and interest on which are unconditionally guaranteed by the United States of America, and any interest or earnings on the Exchange Fund shall be for the account of Parent. In no event shall the Exchange Fund be invested in a manner that could result in a loss of principal.
(c) Letter of Transmittal. Promptly after the Effective Time (and in any event within five (5) Business Days thereof), the Paying Agent shall mail or cause to be mailed to each holder of record of Company Common Stock as of immediately prior to the Effective Time (i) a letter of transmittal substantially in the form attached hereto as Exhibit D (the "Letter of Transmittal"), which shall specify that delivery shall be effected, and risk of loss and title to any certificates representing shares of Company Common Stock (each, a "Certificate") shall pass, only upon proper delivery of such Certificates (or affidavits of loss in lieu thereof, together with any required indemnity bond) to the Paying Agent, and (ii) instructions for use in effecting the surrender of Certificates in exchange for payment of the applicable Merger Consideration.
(d) Payment. Upon receipt by the Paying Agent of a duly executed Letter of Transmittal (together with all Certificates, or customary affidavits of loss in lieu thereof with any required indemnity bond), the Paying Agent shall promptly deliver to each former holder of Company Common Stock the applicable Merger Consideration, allocated among the holders of record as follows:
Each former holder's share of the Escrow Amount as set forth above shall be deposited into the Escrow Account at Closing and shall be subject to the provisions of Section 3.6 and the Escrow Agreement.
(e) No Interest. No interest shall be paid or shall accrue on any cash payable upon the surrender of any Certificate or book-entry share.
(f) Lost Certificates. If any Certificate shall have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen, or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in such customary amount as Parent or the Paying Agent may reasonably direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will pay to such Person the applicable Merger Consideration payable in respect of the shares of Company Common Stock represented by such lost, stolen, or destroyed Certificate.
(g) Withholding. Each of Parent, Merger Sub, the Surviving Corporation, and the Paying Agent (and any of their respective agents) shall be entitled to deduct and withhold from any amounts payable pursuant to this Agreement to any holder of Company Common Stock or Company options such amounts as may be required to be deducted and withheld therefrom under the Code, or any applicable provision of state, local, or foreign Tax Law, with respect to the making of such payment. To the extent that amounts are so withheld and remitted to the appropriate Governmental Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.
Section 3.5 — Earnout.
(a) Earnout Milestones. Following the Closing, in addition to the Closing Cash Consideration and the Escrow Amount, the Founder Earnout Participants shall be eligible to receive the Earnout Consideration, up to a maximum aggregate amount of Three Million Three Hundred Thousand Dollars ($3,300,000), payable in cash, upon the achievement of the following milestones (each, an "Earnout Milestone"):
(i) Earnout Milestone 1 (50% of maximum Earnout Consideration = $1,650,000 (the "Milestone 1 Payment")): Earnout Milestone 1 shall be deemed achieved if the Codelaunch platform (as integrated into Parent's product suite) reaches two hundred (200) or more enterprise customer accounts (as determined in accordance with Parent's standard customer-account classification methodology, consistently applied) by the date that is twelve (12) months following the Closing Date (i.e., by July 22, 2024). For the avoidance of doubt, "enterprise customer accounts" shall include only customer accounts that generate annual recurring revenue of at least $10,000 per annum and that have executed a binding subscription agreement.
(ii) Earnout Milestone 2 (50% of maximum Earnout Consideration = $1,650,000 (the "Milestone 2 Payment")): Earnout Milestone 2 shall be deemed achieved if the Codelaunch platform (as integrated into Parent's product suite) generates annual recurring revenue of Eight Million Dollars ($8,000,000) or more, attributable to the Codelaunch product line, during the twenty-four (24)-month Earnout Period ending on July 22, 2025. For the avoidance of doubt, "annual recurring revenue" or "ARR" shall be calculated using the methodology set forth in Schedule 3.5 to the Company Disclosure Schedules, consistently applied throughout the Earnout Period.
(b) Earnout Period. The Earnout Period shall commence on the Closing Date and end on the date that is twenty-four (24) months following the Closing Date (i.e., July 22, 2023 through July 22, 2025). The Earnout Milestones shall be measured only during the Earnout Period, and no Earnout Consideration shall be payable with respect to any period following the expiration of the Earnout Period.
(c) Earnout Recipients and Allocation. The Earnout Consideration shall be payable exclusively to the Founder Earnout Participants (and shall not be payable to any other Company Stockholders, including Ridgeway Ventures Fund II, LP, any angel investors, or any option holders), allocated pro rata among the Founder Earnout Participants based on their respective equity ownership percentages relative to one another (i.e., each Founder Earnout Participant's respective ownership of Company Common Stock as a fraction of the aggregate ownership of Company Common Stock held by all Founder Earnout Participants), as follows:
(d) Employment Condition. Each Founder Earnout Participant's right to receive his or her share of the Earnout Consideration with respect to any Earnout Milestone shall be contingent upon such Founder Earnout Participant remaining a full-time employee of Parent or any subsidiary of Parent (including the Surviving Corporation) through and including the applicable Earnout Milestone measurement date. If a Founder Earnout Participant's employment is terminated prior to an applicable Earnout Milestone measurement date by (i) voluntary resignation by such Founder Earnout Participant or (ii) termination for Cause (as defined in the applicable Founder Employment Agreement) by Parent or its applicable subsidiary, then such Founder Earnout Participant shall forfeit his or her right to receive any unpaid portion of the Earnout Consideration attributable to any Earnout Milestone for which the applicable measurement date has not yet occurred as of the date of such termination of employment. Any such forfeited amount shall be redistributed pro rata among the remaining Founder Earnout Participants who remain employed as of the applicable Earnout Milestone measurement date, in accordance with their relative proportionate interests (recalculated to exclude the forfeiting Founder Earnout Participant). For the avoidance of doubt, if a Founder Earnout Participant's employment is terminated by Parent or its subsidiary without Cause, or due to such Founder Earnout Participant's death or Disability (as defined in the applicable Founder Employment Agreement), such Founder Earnout Participant (or his or her estate, as applicable) shall remain eligible to receive his or her share of the Earnout Consideration as if such termination had not occurred.
(e) Good-Faith Operation Covenant. Parent covenants and agrees that, during the Earnout Period, Parent shall operate the Codelaunch product line in good faith and in the ordinary course of business consistent with Parent's integration plan as in effect from time to time; provided, however, that Parent shall retain reasonable business discretion with respect to the operation of the Codelaunch product line and shall have no obligation to operate such product line as a standalone business or to prioritize the achievement of the Earnout Milestones over any other business considerations, including the integration of the Codelaunch product line with Parent's existing products and services. Parent shall not, however, take any action with the primary purpose of avoiding payment of the Earnout Consideration.
(f) Determination of Achievement. Parent shall, within thirty (30) days following each Earnout Milestone measurement date (i.e., within thirty (30) days following July 22, 2024 with respect to Earnout Milestone 1 and within thirty (30) days following July 22, 2025 with respect to Earnout Milestone 2), deliver to the Stockholder Representative a written notice (an "Earnout Notice") setting forth in reasonable detail Parent's determination of whether the applicable Earnout Milestone has been achieved, including the supporting data and calculations therefor. The Stockholder Representative and his advisors shall have reasonable access, during normal business hours and upon reasonable prior notice, to the books, records, and personnel of Parent and the Surviving Corporation that are reasonably relevant to the determination of the Earnout Milestones.
(g) Dispute Resolution. If the Stockholder Representative disagrees with Parent's determination set forth in any Earnout Notice, the Stockholder Representative shall, within thirty (30) days after receipt of such Earnout Notice, deliver a written objection to Parent (an "Earnout Objection Notice") setting forth in reasonable detail the basis for such disagreement and the Stockholder Representative's proposed determination. Parent and the Stockholder Representative shall use good-faith efforts to resolve any such disagreement within thirty (30) days after Parent's receipt of the Earnout Objection Notice. If Parent and the Stockholder Representative are unable to resolve such disagreement within such thirty (30)-day period, the dispute shall be submitted to an independent certified public accounting firm of national reputation mutually agreed upon by Parent and the Stockholder Representative (the "Independent Accountant"). If Parent and the Stockholder Representative are unable to agree upon the identity of the Independent Accountant within ten (10) Business Days, the Independent Accountant shall be Firth Corvinal CPAs LLP (or its successor). The Independent Accountant shall resolve the dispute within thirty (30) days after its engagement, acting as an expert and not as an arbitrator, and its determination shall be final and binding upon the Parties and shall not be subject to appeal or further review. The fees and expenses of the Independent Accountant shall be borne by the Party whose position the Independent Accountant does not adopt, or if the Independent Accountant's determination falls between the respective positions of Parent and the Stockholder Representative, such fees and expenses shall be allocated proportionally based on the relative distance of each Party's position from the Independent Accountant's final determination.
(h) Payment. Any Earnout Consideration determined to have been earned upon the achievement of an Earnout Milestone shall be paid by Parent (or its designee) to the applicable Founder Earnout Participants by wire transfer of immediately available funds within ten (10) Business Days following the final determination of achievement of the applicable Earnout Milestone (whether by agreement of Parent and the Stockholder Representative, by determination of the Independent Accountant, or by the expiration of the Stockholder Representative's objection period without delivery of an Earnout Objection Notice), allocated among the Founder Earnout Participants as set forth in Section 3.5(c) (as adjusted pursuant to Section 3.5(d), if applicable).
Section 3.6 — Escrow Arrangement.
(a) At the Closing, Parent shall deposit, or cause to be deposited, Two Million Two Hundred Thousand Dollars ($2,200,000) (the "Escrow Amount") with Lone Star Trust Company, N.A., as escrow agent (the "Escrow Agent"), by wire transfer of immediately available funds, into escrow account reference number LSTC-ESC-2023-004417 (the "Escrow Account"), to be held and distributed in accordance with the terms and conditions of the Escrow Agreement, substantially in the form attached hereto as Exhibit A.
(b) The Escrow Amount represents each Company Stockholder's pro rata share (at $0.22 per share) withheld from the Merger Consideration as security for the indemnification obligations of the Company Stockholders under Article IX. The Escrow Amount shall be held in the Escrow Account and invested by the Escrow Agent in accordance with the investment instructions set forth in the Escrow Agreement. Any interest or earnings on the Escrow Amount shall be allocated pro rata among the Company Stockholders in accordance with their respective ownership percentages and shall be treated as additional Merger Consideration for all Tax purposes.
(c) On the Escrow Release Date (January 22, 2025), being the date that is eighteen (18) months following the Closing Date, any portion of the Escrow Amount (including any interest and earnings thereon) remaining in the Escrow Account that is not then subject to any pending, unresolved, or unsatisfied indemnification claim by a Parent Indemnified Party under Article IX shall be released to the Company Stockholders (through the Stockholder Representative) by the Escrow Agent, pro rata in accordance with their respective ownership percentages as set forth in Section 3.4(d). Any amounts subject to then-pending indemnification claims shall continue to be held in escrow until such claims are finally resolved, at which time any remaining amounts shall be released to the Company Stockholders or paid to the Parent Indemnified Parties, as applicable, in accordance with the Escrow Agreement.
Section 3.7 — Dissenting Shares.
(a) Notwithstanding anything in this Agreement to the contrary, shares of Company Common Stock that are outstanding immediately prior to the Effective Time and that are held by a holder who has not voted in favor of the Merger or consented thereto in writing and who is entitled to demand and has properly demanded appraisal of such shares in accordance with Section 262 of the DGCL ("Dissenting Shares") shall not be converted into the right to receive any portion of the Merger Consideration, but instead the holder thereof shall be entitled to receive payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262 of the DGCL, unless and until such holder shall have failed to perfect, or shall have effectively withdrawn or lost, such holder's right to appraisal under the DGCL.
(b) If any holder of Dissenting Shares shall fail to perfect, or shall effectively withdraw or lose, the right to appraisal with respect to such shares under Section 262 of the DGCL, then, as of the later of the Effective Time and the occurrence of such event, such holder's shares shall automatically be converted into and represent only the right to receive the applicable Merger Consideration as provided in Section 3.2(a), without interest thereon, upon surrender of the Certificate or Certificates representing such shares or in the case of book-entry shares, upon compliance with the exchange procedures set forth in Section 3.4.
(c) The Company shall give Parent prompt written notice of any demands for appraisal of any shares of Company Common Stock received by the Company, any withdrawals of such demands, and any other instruments served pursuant to the DGCL relating to appraisal rights. The Company shall not, without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed), make any payment with respect to, settle or offer to settle, or otherwise negotiate with any holder of Dissenting Shares regarding any demands for appraisal.
Section 3.8 — Stockholder Representative.
(a) Appointment. Naveen Subramaniam is hereby irrevocably appointed as the representative and agent of, and is hereby authorized and empowered to act on behalf of, each Company Stockholder (the "Stockholder Representative") for all purposes under this Agreement and the Ancillary Agreements, including to (i) execute and deliver the Escrow Agreement and all amendments thereto, (ii) receive and review any notices, claims, or other communications from Parent Indemnified Parties under Article IX, (iii) dispute, negotiate, compromise, settle, or otherwise resolve any and all indemnification claims under Article IX, (iv) resolve any disputes regarding the Earnout Milestones under Section 3.5, (v) authorize the release of any amounts from the Escrow Account, (vi) engage counsel, accountants, and other advisors at the expense of the Company Stockholders, and (vii) take all other actions necessary or desirable to carry out the intents and purposes of this Agreement and the Ancillary Agreements.
(b) Authority. The Stockholder Representative shall have full power and authority, acting alone, to take all actions that the Stockholder Representative considers necessary or appropriate in connection with this Agreement and the Ancillary Agreements, and each Company Stockholder shall be bound by all actions taken by the Stockholder Representative in such capacity. Each Company Stockholder hereby irrevocably grants to the Stockholder Representative full power and authority to execute and deliver any and all documents and instruments and to take any and all actions that the Stockholder Representative deems necessary or appropriate in fulfilling his duties and responsibilities as Stockholder Representative. The power of attorney granted herein is coupled with an interest and shall be irrevocable by any Company Stockholder in any manner or for any reason.
(c) Limitation of Liability. The Stockholder Representative shall not be liable to any Company Stockholder for any act taken, or omission made, in good faith by the Stockholder Representative in connection with the performance of his duties and responsibilities as Stockholder Representative, except to the extent that such act or omission constitutes willful misconduct or gross negligence.
(d) Indemnification of Stockholder Representative. Each Company Stockholder agrees, severally and not jointly (pro rata in accordance with such Company Stockholder's ownership percentage), to indemnify and hold harmless the Stockholder Representative from and against any and all Losses incurred by the Stockholder Representative in connection with the performance of his duties and responsibilities as Stockholder Representative, except to the extent that such Losses result from the willful misconduct or gross negligence of the Stockholder Representative. The Stockholder Representative shall be entitled to deduct from any amounts distributable to the Company Stockholders under this Agreement or the Escrow Agreement any amounts necessary to reimburse the Stockholder Representative for any out-of-pocket expenses incurred in the performance of his duties hereunder.
(e) Successor. In the event that the Stockholder Representative resigns, becomes permanently unable or unwilling to serve, or dies, a successor Stockholder Representative shall be appointed by the vote or written consent of Company Stockholders holding a majority of the shares of Company Common Stock outstanding immediately prior to the Effective Time (with each Company Stockholder's shares counted for this purpose in accordance with the ownership percentages set forth in Section 3.4(d)). If no successor Stockholder Representative is appointed within thirty (30) days of the occurrence of any such vacancy, Parent may petition the Court of Chancery of the State of Delaware for the appointment of a successor Stockholder Representative.
ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the Company Disclosure Schedules delivered by the Company to Parent and Merger Sub concurrently with the execution of this Agreement (which Company Disclosure Schedules shall be arranged in sections and subsections corresponding to the numbered and lettered sections and subsections contained in this Article IV, it being understood that disclosure of any item in any section or subsection of the Company Disclosure Schedules shall be deemed disclosure with respect to any other section or subsection of this Article IV to which the relevance of such item is reasonably apparent on the face of such disclosure), the Company hereby represents and warrants to Parent and Merger Sub, as of the date hereof and as of the Closing Date, as follows:
Section 4.1 — Organization and Good Standing.
The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware (Delaware file number 7834219). The Company has all requisite corporate power and authority to own, lease, and operate its properties and assets and to carry on its business as presently conducted and as proposed to be conducted. The Company is duly qualified or licensed to transact business and is in good standing as a foreign corporation in each jurisdiction where the nature of its business or the ownership, leasing, or operation of its properties makes such qualification or licensing necessary, including the State of Texas. The Company has made available to Parent true, correct, and complete copies of the Company's certificate of incorporation and bylaws, each as currently in effect, and the Company is not in violation of any provision thereof. This Section 4.1 is a Fundamental Representation.
Section 4.2 — Authorization; Binding Agreement.
The Company has all requisite corporate power and authority to execute, deliver, and perform this Agreement and each Ancillary Agreement to which it is or will be a party and to consummate the transactions contemplated hereby and thereby, including the Merger. The execution, delivery, and performance of this Agreement and each such Ancillary Agreement by the Company, and the consummation of the transactions contemplated hereby and thereby, including the Merger, have been duly and validly authorized by the board of directors of the Company, and, other than the adoption of this Agreement by the holders of a majority of the outstanding shares of Company Common Stock (which has been obtained as set forth in Section 6.4), no other corporate proceedings on the part of the Company are necessary to authorize the execution, delivery, and performance of this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Company and constitutes a legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or similar Laws of general application affecting the enforcement of creditors' rights generally and (b) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a

AGREEMENT AND PLAN OF MERGER

EXECUTION VERSION

BRIGHTFIELD CLOUD SERVICES INC.

BCS DEVTOOLS MERGER SUB, INC.

CODELAUNCH LABS, INC.

AGREEMENT AND PLAN OF MERGER

RECITALS

Record

Parties

Dates

Amounts