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Item 1.01.
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Entry into a Material Definitive Agreement
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Business Combination Agreement and Plan
of Reorganization
On June 18, 2020, Tortoise Acquisition
Corp., a Delaware corporation (“TortoiseCorp”), SHLL Merger Sub Inc., a Delaware corporation and wholly owned
subsidiary of TortoiseCorp (“Merger Sub”), and Hyliion Inc., a Delaware corporation (the “Company”),
entered into a business combination agreement and plan of reorganization (the “Business Combination Agreement”),
pursuant to which Merger Sub will be merged with and into the Company (the “Merger,” together with the other
transactions related thereto, the “Proposed Transactions”), with the Company surviving the Merger as a wholly
owned subsidiary of TortoiseCorp (the “Surviving Corporation”).
Conversion of Securities
Immediately prior to the effective time
of the Merger (the “Effective Time”), the Company will cause each share of the Company’s preferred stock
(“Company Preferred Stock”) that is issued and outstanding immediately prior to the Effective Time to be automatically
converted into a number of shares of the Company’s common stock (the “Company Common Stock”) in accordance
with the Company’s certificate of incorporation, and each converted share of Company Preferred Stock will no longer be outstanding
and will cease to exist, such that each holder of Company Preferred Stock will thereafter cease to have any rights with respect
to such securities.
Also immediately prior to the Effective
Time, the Company will cause the outstanding principal and unpaid accrued interest due on the Company’s outstanding convertible
notes (the “Company Convertible Notes”) immediately prior to the Effective Time to be automatically converted
into a number of shares of Company Common Stock in accordance with the terms of such Company Convertible Notes, and such converted
Company Convertible Notes will no longer be outstanding and will cease to exist, and any liens securing obligations under the Company
Convertible Notes will be released.
At the Effective Time, by virtue of the
Merger and without any action on the part of TortoiseCorp, Merger Sub, the Company or the holders of any of the Company’s
securities:
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(a)
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Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time will be canceled and converted
into the right to receive the number of shares of Class A Common Stock, par value $0.0001 per share, of TortoiseCorp (“TortoiseCorp
Class A Common Stock”) equal to the quotient obtained by dividing (a) 100,000,000 by (b) the total number of shares of
Company Common Stock outstanding immediately prior to the Effective Time, expressed on a fully-diluted and as-converted to Company
Common Stock basis, and including, without limitation or duplication, the number of shares of Company Common Stock issuable upon
conversion of the Company Preferred Stock and Company Convertible Notes and the number of shares of Company Common Stock subject
to unexpired, issued and outstanding options to purchase shares of Company Common Stock (“Company Options”)
and Company Options that the Company has committed to grant but has not yet granted as of immediately prior to the Effective Time
(the “Exchange Ratio”);
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(b)
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All shares of Company Common Stock and Company Preferred Stock held in the treasury of the Company will be canceled without
any conversion thereof and no payment or distribution will be made with respect thereto;
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(c)
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Each share of common stock, par value $0.0001 per share, of Merger Sub (“Merger Sub Common Stock”) issued
and outstanding immediately prior to the Effective Time will be converted into and exchanged for one validly issued, fully paid
and nonassessable share of common stock, par value $0.001 per share, of the Surviving Corporation;
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(d)
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Each Company Option that is outstanding immediately prior to the Effective Time, whether vested or unvested, will be converted
into an option to purchase a number of shares of TortoiseCorp Class A Common Stock (such option, an “Exchanged Option”)
equal to the product (rounded up or down to the nearest whole number, with a fraction of 0.5 rounded up) of (i) the number of shares
of Company Common Stock subject to such Company Option immediately prior to the Effective Time and (ii) the Exchange Ratio, at
an exercise price per share (rounded up or down to the nearest whole cent, with a fraction of $0.005 rounded up) equal to (A) the
exercise price per share of such Company Option immediately prior to the Effective Time divided by (B) the Exchange Ratio. Except
as specifically provided in the Business Combination Agreement, following the Effective Time, each Exchanged Option will continue
to be governed by the same terms and conditions (including vesting and exercisability terms) as were applicable to the corresponding
former Company Option immediately prior to the Effective Time; and
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(e)
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No certificates or scrip or shares representing fractional shares of TortoiseCorp Class A Common Stock will be issued upon
the exchange of Company Common Stock. Any fractional shares will be rounded up or down to the nearest whole share of TortoiseCorp
Class A Common Stock, with a fraction of 0.5 rounded up. No cash settlements will be made with respect to fractional shares.
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Proxy Statement
As promptly as practicable after the date
of the Business Combination Agreement and TortoiseCorp’s receipt of the Company’s audited financial statements, TortoiseCorp
will prepare and file with the Securities and Exchange Commission (the “SEC”) a proxy statement (as amended
or supplemented from time to time, the “Proxy Statement”) to be sent to the stockholders of TortoiseCorp (the
“TortoiseCorp Stockholders”) relating to the meeting of the TortoiseCorp Stockholders (the “TortoiseCorp
Stockholders’ Meeting”) to be held to consider (i) approval and adoption of the Business Combination Agreement
and the Merger, (ii) approval of the issuance of TortoiseCorp Class A Common Stock as contemplated by the Business Combination
Agreement and the Subscription Agreements (as defined below) and the issuance of Forward Purchase Securities (as defined below)
as contemplated by the Forward Purchase Agreement (as defined below), (iii) the second amended and restated certificate of incorporation
of TortoiseCorp and (iv) any other proposals the parties deem necessary to effectuate the Merger (collectively, the “TortoiseCorp
Proposals”).
Stock Exchange Listing
TortoiseCorp will use its reasonable best
efforts to cause the shares of TortoiseCorp Class A Common Stock to be issued in connection with the Proposed Transactions to be
approved for listing on the New York Stock Exchange at the closing of the Merger (the “Closing”). Until the
Closing, TortoiseCorp shall use its reasonable best efforts to keep the TortoiseCorp Class A Common Stock and warrants listed for
trading on the New York Stock Exchange.
Registration Rights Agreement
In connection with the Closing, that certain
Registration Rights Agreement dated February 27, 2019 (the “IPO Registration Rights Agreement”) will be amended
and restated and TortoiseCorp, certain persons and entities holding securities of TortoiseCorp prior to the Closing (the “Initial
Holders”) and certain persons and entities receiving TortoiseCorp Class A Common Stock pursuant to the Merger (the “New
Holders” and together with the Initial Holders, the “Reg Rights Holders”) shall enter into that amended
and restated IPO Registration Rights Agreement attached as an exhibit to the Business Combination Agreement (the “Registration
Rights Agreement”). Pursuant to the Registration Rights Agreement, TortoiseCorp will agree that, within 30 calendar days
after the consummation of the Proposed Transactions, TortoiseCorp will file with the SEC (at TortoiseCorp’s sole cost and
expense) a registration statement registering the resale of certain securities held by or issuable to the Reg Rights Holders (the
“Resale Registration Statement”), and TortoiseCorp shall use its reasonable best efforts to have the Resale
Registration Statement declared effective as soon as reasonably practicable after the filing thereof. In certain circumstances,
certain of the Reg Rights Holders can demand up to three underwritten offerings, and all of the Reg Rights Holders will be entitled
to piggyback registration rights.
The foregoing description of the Registration
Rights Agreement is qualified in its entirety by reference to the full text of the form of Registration Rights Agreement, a copy
of which is included as Exhibit A to the Business Combination Agreement, filed as Exhibit 2.1 to this Current Report
on Form 8-K, and incorporated herein by reference.
Lock-Up Agreements
In connection with the Closing, certain
investors in the Company will agree, subject to certain exceptions, not to (i) sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish
or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the SEC promulgated
thereunder, any shares of TortoiseCorp Class A Common Stock held by them immediately after the Effective Time, or issuable upon
the exercise of options to purchase shares of TortoiseCorp Class A Common Stock held by them immediately after the Effective Time,
or securities convertible into or exercisable or exchangeable for TortoiseCorp Class A Common Stock held by them immediately after
the Effective Time, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of any of such shares of TortoiseCorp Class A Common Stock or securities convertible into or exercisable
or exchangeable for TortoiseCorp Class A Common Stock, whether any such transaction is to be settled by delivery of such securities,
in cash or otherwise or (iii) publicly announce any intention to effect any transaction specified in clause (i) or (ii) (the actions
specified in clauses (i)-(iii), collectively, “Transfer”) until 180 days after the date of Closing (the “Closing
Date”). Thereafter until two (2) years after the Closing Date, Thomas Healy will also agree not to Transfer more than
10% of the number of shares of TortoiseCorp Class A Common Stock held by him immediately after the Effective Time, or issuable
upon the exercise of options to purchase shares of TortoiseCorp Class A Common Stock held by him immediately after the Effective
Time.
The foregoing description
of the Lock-Up Agreements is qualified in its entirety by reference to the full text of the form of Lock-Up Agreement, a copy of
which is included as Exhibit B to the Business Combination Agreement, filed as Exhibit 2.1 to this Current Report on
Form 8-K, and incorporated herein by reference.
Closing
The Closing will occur as promptly as practicable,
but in no event later than three business days following the satisfaction or waiver of all of the closing conditions.
Exclusivity
From the date of the Business Combination
Agreement and ending on the earlier of (a) the Closing and (b) the termination of the Business Combination Agreement, the Company
will not, and will cause its representatives not to, directly or indirectly, (i) enter into, solicit, initiate or continue any
discussions or negotiations with, or encourage or respond to any inquiries or proposals by, or participate in any negotiations
with, or provide any information to, or otherwise cooperate in any way with, any person or other entity or “group”
within the meaning of Section 13(d) of the Exchange Act, concerning (A) any sale of assets of the Company equal to 15% or more
of the Company’s assets or to which 15% or more of the Company’s revenues or earnings are attributable, (B) the issuance
or acquisition of 15% or more of the outstanding capital stock (on an as converted to Company Common Stock basis) or other voting
securities representing 15% or more of the combined voting power of the Company or (C) any conversion, consolidation, merger, liquidation,
dissolution or similar transaction which, if consummated, would result in any person or other entity or group beneficially owning
15% or more of the combined voting power of the Company, other than with TortoiseCorp and its representatives (an “Alternative
Transaction”), (ii) enter into any agreement regarding, continue or otherwise participate in any discussions regarding,
or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to
lead to, any Alternative Transaction or (iii) commence, continue or renew any due diligence investigation regarding any Alternative
Transaction; provided that the execution, delivery and performance of the Business Combination Agreement and related documents
and the consummation of the transactions contemplated thereby will not be deemed a violation of this provision. The Company will,
and will cause its affiliates and representatives to, immediately cease any and all existing discussions or negotiations with any
person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request
each person (other than the parties hereto and their respective representatives) that has prior to the date thereof executed a
confidentiality agreement in connection with its consideration of acquiring the Company to return or destroy all confidential information
furnished to such person by or on behalf of it prior to the date thereof. If the Company or any of its representatives receives
any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company will promptly
(and in no event later than twenty-four (24) hours after the Company becomes aware of such inquiry or proposal) notify such person
in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from
considering such inquiry or proposal.
Representations,
Warranties and Covenants
The Business Combination Agreement contains
customary representations, warranties and covenants of (a) the Company and (b) TortoiseCorp and Merger Sub relating to, among other
things, their ability to enter into the Business Combination Agreement and their outstanding capitalization.
Conditions to Closing
Mutual
The obligations of the Company, TortoiseCorp
and Merger Sub to consummate the Proposed Transactions, including the Merger, are subject to the satisfaction or waiver (where
permissible) at or prior to the Closing of the following conditions:
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(a)
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The written consent of the requisite stockholders of the Company in favor of the approval and adoption of the Business Combination
Agreement and the Merger and all other transactions contemplated by the Business Combination Agreement (the “Written Consent”)
has been delivered to TortoiseCorp;
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(b)
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The TortoiseCorp Proposals have been approved and adopted by the requisite affirmative vote of the TortoiseCorp Stockholders
in accordance with the Proxy Statement, the Delaware General Corporation Law, TortoiseCorp’s organizational documents and
the rules and regulations of the New York Stock Exchange;
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(c)
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No governmental authority has enacted, issued, promulgated, enforced or entered any law, rule, regulation, judgment, decree,
executive order or award which is then in effect and has the effect of making the Proposed Transactions illegal or otherwise prohibiting
consummation of the Proposed Transactions;
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(d)
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All required filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”),
have been completed and any applicable waiting period (and any extension thereof) applicable to the consummation of the Proposed
Transactions under the HSR Act has expired or been terminated;
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(e)
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All consents, approvals and authorizations set forth in the Business Combination Agreement have been obtained from and made
with all governmental authorities;
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(f)
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As of the Closing, after consummation of the transactions contemplated by the Subscription Agreements and the Forward Purchase
Agreement and distribution of the funds held in TortoiseCorp’s trust account (the “Trust Account”) pursuant
to the Business Combination Agreement, TortoiseCorp has cash on hand equal to or in excess of $235,000,000 (without, for the avoidance
of doubt, taking into account any transaction fees, costs and expenses paid or required to be paid in connection with the Proposed
Transactions and the transactions contemplated by the Subscription Agreements and the Forward Purchase Agreement); and
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(g)
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The shares of TortoiseCorp Class A Common Stock are listed on the New York Stock Exchange, or another national securities exchange
mutually agreed to by the parties, as of the Closing Date.
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TortoiseCorp and Merger
Sub
The obligations of TortoiseCorp and Merger
Sub to consummate the Proposed Transactions are subject to the satisfaction or waiver (where permissible) at or prior to the Closing
of the following additional conditions:
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(a)
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The representations and warranties of the Company contained in the sections titled (a)
“Organization and Qualification; Subsidiaries,” (b) “Capitalization,” (c) “Authority Relative
to the Business Combination Agreement” and (d) “Brokers” in the Business Combination Agreement shall each
be true and correct in all material respects as of the date of the Business Combination Agreement and the Effective Time,
except to the extent that any such representation or warranty expressly is made as of an earlier date, in which case such
representation and warranty shall be true and correct as of such earlier specified date. Certain of the representations and
warranties of the Company contained in the section titled “Absence of Certain Changes or Events” in the Business
Combination Agreement shall be true and correct in all respects as of the date of the Business Combination Agreement and the
Effective Time. Certain of the representations and warranties in the section titled “Capitalization” in the
Business Combination Agreement shall be true and correct in all respects as of the date of the Business Combination Agreement
and as of the Effective Time as though made on and as of such date (except to the extent that any such representation or
warranty expressly is made as of an earlier date, in which case such representation and warranty shall be true and correct as
of such specified date), except where the failure of such representations and warranties to be so true and correct would not,
individually or in the aggregate, be reasonably expected to result in more than de minimis additional cost, expense or
liability to the Company, TortoiseCorp, Merger Sub or any of their respective affiliates. The other representations and
warranties of the Company contained in the Business Combination Agreement shall be true and correct in all respects (without
giving effect to any “materiality,” “Company Material Adverse Effect” or similar qualifiers contained
in any such representations and warranties) as of the date of the Business Combination Agreement and as of the Effective Time
as though made on and as of such date (except to the extent that any such representation or warranty expressly is made as of
an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except
where the failures of any such representations and warranties to be so true and correct, individually or in the aggregate,
would not reasonably be expected to have a Company material adverse effect;
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(b)
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The Company has performed or complied in all material respects with all agreements and covenants required by the Business Combination
Agreement to be performed or complied with by it on or prior to the Effective Time;
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(c)
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The Company has delivered to TortoiseCorp a customary officer’s certificate, dated the date of the Closing, certifying
as to the satisfaction of certain conditions;
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(d)
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No Company material adverse effect has occurred between the date of the Business Combination Agreement and the Closing Date;
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(e)
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Other than those persons identified as continuing directors in the Business Combination Agreement, all members of the board
of directors of the Company have executed written resignations effective as of the Effective Time;
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(f)
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All parties to the Registration Rights Agreement (other than TortoiseCorp and the TortoiseCorp Stockholders party thereto)
have delivered, or cause to be delivered, to TortoiseCorp copies of the Registration Rights Agreement duly executed by all such
parties;
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(g)
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All parties to the Lock-Up Agreements proposed to be
entered into in connection with Closing have delivered, or caused to be delivered, to TortoiseCorp copies of the Lock-Up Agreements
duly executed by all such parties;
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(h)
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At least two days prior to the Closing, the Company delivered to TortoiseCorp a properly executed certification that shares
of Company Common Stock are not “U.S. real property interests” in accordance with Treasury Regulation Section 1.1445-2(c)(3),
together with a notice to the IRS (which will be filed by TortoiseCorp with the IRS following the Closing) in accordance with the
provisions of Section 1.897-2(h)(2) of the Treasury Regulations; and
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(i)
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TortoiseCorp shall have at least $5,000,001 of net tangible assets following the exercise of redemption rights by the holders
of TortoiseCorp Class A Common Stock in accordance with the TortoiseCorp’s organizational documents.
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(j)
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The Company shall have delivered to TortoiseCorp its audited financial statements.
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The Company
The obligations of the Company to consummate
the Proposed Transactions are subject to the satisfaction or waiver (where permissible) at or prior to Closing of the following
additional conditions:
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(a)
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The representations and warranties of TortoiseCorp and Merger Sub contained in the sections
titled (a) “Corporate Organization,” (b) “Capitalization,” (c) “Authority Relative to the
Business Combination Agreement” and (d) “Brokers” in the Business Combination Agreement shall each be true
and correct in all material respects as of the date of the Business Combination Agreement and the Effective Time, except to
the extent that any such representation or warranty expressly is made as of an earlier date, in which case such
representation and warranty shall be true and correct as of such earlier specified date. Certain of the representations and
warranties of TortoiseCorp and Merger Sub contained in the section titled “Absence of Certain Changes or Events”
in the Business Combination Agreement shall be true and correct in all respects as of the date of the Business Combination
Agreement and the Effective Time. Certain of the representations and warranties in the section titled
“Capitalization” in the Business Combination Agreement shall be true and correct in all respects as of the date
of the Business Combination Agreement and as of the Effective Time as though made on and as of such date (except to the
extent that any such representation or warranty expressly is made as of an earlier date, in which case such representation
and warranty shall be true and correct as of such specified date), except where the failure of such representations and
warranties to be so true and correct would not, individually or in the aggregate, be reasonably expected to result in more than
de minimis additional cost, expense or liability to the Company, TortoiseCorp, Merger Sub or any of their respective
affiliates. The other representations and warranties of TortoiseCorp and Merger Sub contained in the Business Combination
Agreement shall be true and correct in all respects (without giving effect to any “materiality,”
“TortoiseCorp Material Adverse Effect” or similar qualifiers contained in any such representations and
warranties) as of the date of the Business Combination Agreement and as of the Effective Time as though made on and as of
such date (except to the extent that any such representation or warranty expressly is made as of an earlier date, in which
case such representation and warranty shall be true and correct as of such earlier date), except where the failures of any
such representations and warranties to be so true and correct, individually or in the aggregate, would not reasonably be
expected to have a TortoiseCorp material adverse effect;
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(b)
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TortoiseCorp and Merger Sub have performed or complied in all material respects with all agreements and covenants required
by the Business Combination Agreement to be performed or complied with by it on or prior to the Effective Time;
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(c)
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TortoiseCorp has delivered to the Company a customary officer’s certificate (signed by the President of TortoiseCorp),
dated the date of the Closing, certifying as to the satisfaction of certain conditions;
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(d)
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No TortoiseCorp material adverse effect has occurred between the date of the Business Combination Agreement and the Closing
Date;
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(f)
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TortoiseCorp has delivered a copy of the Registration Rights Agreement duly executed by TortoiseCorp and the TortoiseCorp Stockholders
party thereto; and
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(g)
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TortoiseCorp has made all necessary and appropriate arrangements with the Trustee of the Trust Account to have all of the funds
in the Trust Account disbursed to TortoiseCorp immediately prior to the Effective Time, and all such funds released from the Trust
Account are available to TortoiseCorp in respect of all or a portion of the payment obligations set forth in the Business Combination
Agreement and the payment of TortoiseCorp’s fees and expenses incurred in connection with the Business Combination Agreement
and the Proposed Transactions.
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Termination
The Business Combination Agreement may
be terminated and the Proposed Transactions may be abandoned at any time prior to the Effective Time, notwithstanding any requisite
approval and adoption of the Business Combination Agreement and the Proposed Transactions by the stockholders of the Company or
the TortoiseCorp Stockholders, as follows:
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(a)
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By mutual written consent of TortoiseCorp and the Company;
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(b)
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By TortoiseCorp or the Company, if (i) the Effective Time will not have occurred prior to the date that is 180 days after the
date of the Business Combination Agreement (the “Outside Date”); provided, however, that the Business Combination
Agreement may not be terminated by any party that either directly or indirectly through its affiliates is in breach or violation
of any representation, warranty, covenant, agreement or obligation contained herein and such breach or violation is the principal
cause of the failure of a condition to the Merger on or prior to the Outside Date, and, in the event that any law is enacted after
the execution of the Business Combination Agreement extending the applicable waiting period under the HSR Act, the Outside Date
will be automatically extended by the length of any such extension; or (ii) any governmental authority in the United States has
enacted, issued, promulgated, enforced or entered any injunction, order, decree or ruling (whether temporary, preliminary or permanent)
which has become final and nonappealable and has the effect of making consummation of the Proposed Transactions illegal or otherwise
preventing or prohibiting consummation of the Proposed Transactions, including the Merger; or (iii) any of the TortoiseCorp Proposals
fail to receive the requisite vote for approval at the TortoiseCorp Stockholders’ Meeting;
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(c)
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By the Company if (i) there is an occurrence of a breach of any representation, warranty, covenant or agreement on the part
of TortoiseCorp and Merger Sub set forth in the Business Combination Agreement, or if any representation or warranty of TortoiseCorp
and Merger Sub will have become untrue, in either case such that the conditions set forth in representations and warranties and
the agreements and covenants of Merger Sub and TortoiseCorp specified in the conditions to the Merger section of the Business Combination
Agreement would not be satisfied (“Terminating TortoiseCorp Breach”); provided that the Company has not waived
such Terminating TortoiseCorp Breach and the Company is not then in material breach of their representations, warranties, covenants
or agreements in the Business Combination Agreement; provided, however, that, if such Terminating TortoiseCorp Breach is curable
by TortoiseCorp and Merger Sub, the Company may not terminate the Business Combination Agreement under this section for so long
as TortoiseCorp and Merger Sub continue to exercise their reasonable efforts to cure such breach, unless such breach is not cured
within thirty days after notice of such breach is provided by the Company to TortoiseCorp; or
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(d)
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By TortoiseCorp if (i) the Company has failed to deliver the Written Consent to TortoiseCorp within two business days of execution
of the Business Combination Agreement; (ii) there is an occurrence of a breach of any representation, warranty, covenant or agreement
on the part of the Company set forth in the Business Combination Agreement, or if any representation or warranty of the Company
has become untrue, in either case such that the conditions set forth in representations and warranties and the agreements and covenants
of the Company specified in the conditions to the Merger section of the Business Combination Agreement would not be satisfied (“Terminating
Company Breach”); provided that TortoiseCorp has not waived such Terminating Company Breach and TortoiseCorp and Merger
Sub are not then in material breach of their representations, warranties, covenants or agreements in the Business Combination Agreement;
provided further that, if such Terminating Company Breach is curable by the Company, TortoiseCorp may not terminate the Business
Combination Agreement under this provision for so long as the Company continues to exercise its reasonable efforts to cure such
breach, unless such breach is not cured within thirty days after notice of such breach is provided by TortoiseCorp to the Company;
or (iii) the Company has not delivered its audited financial statements to TortoiseCorp within 15 days of the date of the Business
Combination Agreement.
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Effect of Termination
If the Business Combination Agreement is
terminated, the agreement will forthwith become void, and there will be no liability under the Business Combination Agreement on
the part of any party hereto, except as set forth in the Business Combination Agreement or in the case of termination subsequent
to a willful material breach of the Business Combination Agreement by a party thereto.
A copy of the Business Combination Agreement
is filed with this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference. The foregoing description
of the Business Combination Agreement is qualified in its entirety by reference to the full text of the Business Combination Agreement
filed with this Current Report on Form 8-K. The Business Combination Agreement is included to provide security holders with information
regarding its terms. It is not intended to provide any other factual information about TortoiseCorp, the Company or the other parties
thereto. In particular, the assertions embodied in representations and warranties by TortoiseCorp, the Company and Merger Sub contained
in the Business Combination Agreement are qualified by information in the disclosure schedules provided by the parties in connection
with the signing of the Business Combination Agreement. These disclosure schedules contain information that modifies, qualifies
and creates exceptions to the representations and warranties set forth in the Business Combination Agreement. Moreover, certain
representations and warranties in the Business Combination Agreement were used for the purpose of allocating risk between the parties,
rather than establishing matters as facts. Accordingly, security holders should not rely on the representations and warranties
in the Business Combination Agreement as characterizations of the actual state of facts about TortoiseCorp, the Company or Merger
Sub.
Stockholder Support Agreement
On June 18, 2020, certain stockholders
of the Company entered into the Stockholder Support Agreement (the “Stockholder Support Agreement”) pursuant
to which such stockholders agreed to vote all of their shares of Company Common Stock and Company Preferred Stock in favor of the
approval and adoption of the Proposed Transactions. Additionally, such stockholders have agreed, among other things, not to (a)
transfer any of their shares of Company Common Stock and Company Preferred Stock (or enter into any arrangement with respect thereto),
subject to certain customary exceptions or (b) enter into any voting arrangement that is inconsistent with the Stockholder Support
Agreement.
The foregoing description of the Stockholder
Support Agreement is qualified in its entirety by reference to the full text of the Stockholder Support Agreement, a copy of which
is included as Exhibit 10.1 to this Current Report on Form 8-K, and incorporated herein by reference.
Stockholders Rights Agreement
On June 18, 2020, Vincent T. Cubbage, Stephen
Pang, certain stockholders of the Company and TortoiseCorp entered into the Stockholders Rights Agreement (the “Stockholders
Rights Agreement”), pursuant to which TortoiseCorp agreed to take all necessary action so that immediately after the
Effective Time, the board of directors of TortoiseCorp, including its committees, is comprised of the individuals set forth in
the Business Combination Agreement. Pursuant to the Stockholders Rights Agreement, TortoiseCorp will also take all necessary action
to cause the board of directors of TortoiseCorp to nominate and recommend for election at TortoiseCorp’s annual meeting of
stockholders in 2021 (the “First Annual Meeting”) Vincent T. Cubbage and Thomas Healy. The stockholders party
to the Stockholders Rights Agreement agreed to vote in favor of Messrs. Cubbage and Healy at the First Annual Meeting.
The foregoing description of the Stockholders
Rights Agreement is qualified in its entirety by reference to the full text of the Stockholders Rights Agreement, a copy of which
is included as Exhibit 10.2 to this Current Report on Form 8-K, and incorporated herein by reference.
Subscription Agreements
In connection with the execution of the
Business Combination Agreement, on June 18, 2020, TortoiseCorp entered into separate subscription agreements (collectively, the
“Subscription Agreements”) with a number of investors (each, a “Subscriber” and collectively,
the “Subscribers”), pursuant to which the Subscribers agreed to purchase, and TortoiseCorp agreed to sell to
the Subscribers, an aggregate of 30,750,000 shares of TortoiseCorp Class A Common Stock (the “PIPE Shares”), for
a purchase price of $10.00 per share and an aggregate purchase price of $307,500,000, in a private placement (the “PIPE”).
The closing of the sale of the PIPE Shares
pursuant to the Subscription Agreements is contingent upon, among other customary closing conditions, the concurrent consummation
of the Proposed Transactions. The purpose of the PIPE is to raise additional capital for use by the combined company following
the Closing.
Pursuant to the Subscription Agreements,
TortoiseCorp agreed that, within 30 calendar days after the consummation of the Proposed Transactions, TortoiseCorp will file with
the SEC (at TortoiseCorp’s sole cost and expense) a registration statement registering the resale of the PIPE Shares (the
“PIPE Resale Registration Statement”), and TortoiseCorp shall use its commercially reasonable efforts to have
the PIPE Resale Registration Statement declared effective as soon as practicable after the filing thereof. Under certain circumstances,
payments by TortoiseCorp may be assessed with respect to the PIPE Shares in the event that (i) the PIPE Resale Registration
Statement has not been declared effective by the SEC by the earlier of (A) 60 days (or 90 days if the SEC notifies TortoiseCorp
that it will review the PIPE Resale Registration Statement) following the Closing and (B) the tenth business day after the SEC
notifies TortoiseCorp that either its review of the PIPE Resale Registration Statement is complete or it will not review the PIPE
Resale Registration Statement; (ii) the PIPE Resale Registration Statement is declared effective by the SEC but thereafter
ceases to be effective prior to the expiration of a designated effective period or a Subscriber is not permitted to utilize the
PIPE Resale Registration Statement to resell the PIPE Shares; or (iii) under certain circumstances, TortoiseCorp fails to
file with the SEC any required reports under Section 13 or 15(d) of the Exchange Act, such that the Subscribers who are
not affiliates of TortoiseCorp are unable to sell their PIPE Shares without restriction under Rule 144 under the Securities
Act. The payments by TortoiseCorp to each such Subscriber shall accrue on the default date and on each monthly anniversary of any
uncured default in an amount equal to 0.5% of the aggregate purchase price paid for the PIPE Shares held by such Subscriber at
such time, subject to certain terms and limitations (including a cap of 5.0% of the aggregate purchase price).
The foregoing description of the Subscription
Agreements is qualified in its entirety by reference to the full text of the form of the Subscription Agreement, a copy of which
is included as Exhibit 10.3 to this Current Report on Form 8-K, and incorporated herein by reference.
Amendment to Forward Purchase Agreement
On June 18, 2020, TortoiseCorp, Tortoise
Sponsor LLC (the “Sponsor”) and Atlas Point Energy Infrastructure Fund, LLC (“Atlas Point”)
entered into the First Amendment to Amended and Restated Forward Purchase Agreement (the “FPA Amendment” and
such Amended and Restated Forward Purchase Agreement, as amended, the “Forward Purchase Agreement”), pursuant
to which Atlas Point agreed to purchase $17,500,000 (the “Purchase Price”) of forward purchase units, consisting of
one share of TortoiseCorp Class A Common Stock and one-half of one warrant, at $10.00 per unit at the Closing (the “Forward
Purchase Securities”). At the Closing (i) if Atlas Point does not fund the Purchase Price, Atlas Point will transfer
back to the Sponsor 900,000 shares of TortoiseCorp’s Class B Common Stock, par value $0.0001 per share (the “Founder
Shares”), such that Atlas Point shall retain 365,625 Founder Shares and (ii) if Atlas Point does fund the Purchase Price,
Atlas Point shall transfer back to the Sponsor 894,375 Founder Shares.
Pursuant to the FPA Amendment, TortoiseCorp
agreed that, within 30 calendar days after the consummation of the Proposed Transactions, TortoiseCorp will file with the SEC (at
TortoiseCorp’s sole cost and expense) a registration statement registering the resale of any Forward Purchase Securities
and the TortoiseCorp Class A Common Stock issuable upon conversion of the Founder Shares held by Atlas Point (the “Atlas
Point Resale Registration Statement”), and TortoiseCorp shall use its commercially reasonable efforts to have the Atlas
Point Resale Registration Statement declared effective as soon as practicable after the filing thereof.
The foregoing description of the FPA Amendment
is qualified in its entirety by reference to the full text of the FPA Amendment, a copy of which is included as Exhibit 10.4 to
this Current Report on Form 8-K, and incorporated herein by reference.