THIS SHARE EXCHANGE AGREEMENT (this Agreement), dated as of January 20, 2021, is entered into by and among Hims, Inc., a Delaware corporation (Hims), Andrew Dudum (the CEO), The Andrew Dudum 2015 Trust, dated July 2, 2015 (the CEO Trust), and Oaktree Acquisition Corp., a Cayman Islands exempted company (which shall domesticate as a Delaware corporation in accordance with the terms of the Merger Agreement (as defined below)) (Parent). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Merger Agreement.
WHEREAS, Hims, Parent, and Rx Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (Merger Sub), entered into an Agreement and Plan of Merger, dated as of September 30, 2020 (the Merger Agreement), pursuant to which (i) Parent will change its jurisdiction of incorporation to Delaware by domesticating as a Delaware corporation in accordance with Section 388 of the Delaware General Corporation Law and Sections 206 to 209 of the Cayman Islands Companies Law (as amended) and change its name to Hims & Hers Health, Inc. (the Domestication) and (ii) following the Domestication, Merger Sub will merge with and into Hims (the Merger), with Hims surviving the Merger as a wholly-owned subsidiary of Parent.
WHEREAS, (i) the holders of Company Preferred Stock and holders of Company Class F Common Stock have elected to automatically convert as of immediately prior to the adoption of the A&R Company Dual Class Charter (as defined below) and immediately prior to the Effective Time all such shares of Company Preferred Stock and Company Class F Common Stock into shares of Company Class A Common Stock, (ii) immediately prior to the Effective Time, Hims will amend and restate the Company Certificate of Incorporation to implement the Dual Class Structure as set forth in Article IV of the A&R Company Dual Class Charter, and (iii) pursuant to the Share Exchange (as defined below), a portion of shares of Company Common Stock representing approximately 33% of the sum of (a) the number of shares of Company Capital Stock held by the CEO Group plus (b) underlying vested and unvested Equity Interests held by the CEO, shall be exchanged for shares of Company High Vote Stock, such that as of immediately following the completion of the transactions contemplated by the Merger Agreement, the shares of Parent Class A Common Stock and Parent Class V Common Stock held by the CEO Group shall represent approximately (but not in excess of) ninety percent (90%) of the aggregate voting power of all outstanding capital stock of Parent.
WHEREAS, in accordance with the Merger Agreement, immediately following the adoption of the A&R Company Dual Class Charter and immediately prior to the Effective Time, Hims shall issue to the CEO Trust, a member of the CEO Group, 18,494,454 shares of Company High Vote Stock (the CEO High Vote Shares or, the Shares), in exchange for 18,494,454 shares of Company Class A Common Stock held by the CEO Trust (the Old Shares), on the terms and subject to the conditions set forth herein (the Share Exchange).
WHEREAS, each of the parties intends that, for U.S. federal income tax purposes, the Share Exchange shall constitute a reorganization within the meaning of Section 368(a)(1)(E) of the Code.
WHEREAS, in accordance with the Merger Agreement, pursuant to the Merger, the CEO High Vote Shares will be converted into the right to receive shares of Parent Class V Common Stock (the Merger Share Exchange).
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties hereby agree as follows: