Second Amendment to Amended and Restated Agreement and Plan of Merger, dated October 26, 2023, by and among Pono, Merger Sub, SBC, Yoshiyuki Aikawa, and the Seller Representative
Exhibit 2.2
SECOND AMENDMENT TO THE
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
Dated as of October 26, 2023
This Second Amendment to the Amended and Restated Agreement and Plan of Merger (this “Amendment”) is made and entered into as of the date first set forth above (the “Amendment Date”) by and among (i) Pono Capital Two, Inc., a company incorporated in Delaware (together with its successors, the “Purchaser”), (ii) Pono Two Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of the Purchaser (“Merger Sub”), (iii) Mehana Capital LLC, a Delaware limited liability company, in the capacity as the representative from and after the Effective Time (as defined below) for the stockholders of the Purchaser (other than the Company Security Holders (as defined below) as of immediately prior to the Effective Time and their successors and assignees) in accordance with the terms and conditions of this Agreement (the “Purchaser Representative”), (iv) Yoshiyuki Aikawa, in the capacity as the representative from and after the Effective Time for the Company Security Holders (as defined below) as of immediately prior to the Effective Time in accordance with the terms and conditions of this Agreement (the “Seller Representative”), and (v) SBC Medical Group Holdings Incorporated, a Delaware corporation (the “Company”). The Purchaser, Merger Sub, the Purchaser Representative, the Seller Representative and the Company are sometimes referred to herein individually as a “Party” and, collectively, as the “Parties.”
WHEREAS the Parties are all of the Parties to that certain Amended and Restated Agreement and Plan of Merger dated as of June 21, 2023, as amended by the First Amendment to the Amended and Restated Agreement and Plan of Merger dated as of September 8, 2023 (as so amended and as may be amended, modified or supplemented from time to time, the “Merger Agreement”); and
WHEREAS, the Parties now desire to amend the Merger Agreement;
NOW THEREFORE, in consideration of the mutual agreements contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:
| 1. | Definitions. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Merger Agreement. |
| 2. | Amendment. Pursuant to the provisions of Section 10.08 of the Merger Agreement, the second sentence of Section 5.17(a) of the Merger Agreement is hereby amended and restated in its entirety to provide as follow: “Immediately after the Closing, the Parties shall take all necessary action to designate and appoint to the Post-Closing Purchaser Board, three (3) persons designated prior to the Closing by the Company, at least one (1) of whom is required to qualify as an independent director under Nasdaq rules; one (1) person designated prior to the Closing by Purchaser who is required to qualify as an independent director under Nasdaq rules; and one (1) person mutually agreed on prior to the Closing by the Company and the Purchaser who is required to qualify as an independent director under Nasdaq rules.” |
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| 3. | Effect of Amendment; Full Force and Effect. This Amendment shall form a part of the Merger Agreement for all purposes, and each Party shall be bound hereby and this Amendment and the Merger Agreement shall be read and interpreted as one combined instrument. From and after the Amendment Date, each reference in the Merger Agreement to “this Agreement,” “hereof,” “hereunder,” “herein,” “hereby” or words of like import referring to the Merger Agreement shall mean and be a reference to the Merger Agreement as amended by this Amendment. Except as herein expressly amended or otherwise provided herein, each and every term, condition, warranty and provision of the Merger Agreement shall remain in full force and effect, and such are hereby ratified, confirmed and approved by the Parties. |
| 4. | Governing Law. This Amendment shall be governed by, construed and enforced in accordance with the Laws of the State of Delaware without regard to the conflict of laws principles thereof. |
| 5. | Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by electronic means, including DocuSign, Adobe Sign or other similar e-signature services, e-mail or scanned pages shall be effective as delivery of a manually executed counterpart to this Amendment. |
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the Parties has caused this Amendment to be duly executed on its behalf as of the Amendment Date.
| PONO CAPITAL TWO, INC. | ||
| By: | /s/ Darryl Nakamoto | |
| Name: | Darryl Nakamoto | |
| Title: | Chief Executive Officer | |
| Mehana Capital LLC | ||
| By: | /s/ Dustin Shindo | |
| Name: | Dustin Shindo | |
| Its: | Manager | |
| PONO TWO MERGER SUB, INC. | ||
| By: | /s/ Darryl Nakamoto | |
| Name: | Darryl Nakamoto | |
| Title: | Chief Executive Officer | |
| SBC MEDICAL GROUP HOLDINGS INCORPORATED | ||
| By: | /s/ Yoshiyuki Aikawa | |
| Name: | Yoshiyuki Aikawa | |
| Title: | Chief Executive Officer | |
| /s/ Yoshiyuki Aikawa | ||
| YOSHIYUKI AIKAWA | ||
[Signature Page to Second Amendment to Amended and Restated Agreement and Plan of Merger]
