FORM OF CONFIDENTIALITY AND LOCK-UP AGREEMENT
CONFIDENTIALITY AND LOCK UP AGREEMENT
This Confidentiality and Lockup Agreement is dated as of October [•], 2020 and is among South Mountain Merger Corp., a Delaware corporation (“SMMC”), and each of the stockholder parties identified on Exhibit A hereto and the other persons who enter into a joinder to this Agreement substantially in the form of Exhibit B hereto with SMMC in order to become a “Stockholder Party” for purposes of this Agreement (collectively, the “Stockholder Parties”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Stockholders Agreement (as defined below).
WHEREAS, the Stockholder Parties own or will own equity interests in Factor Systems, Inc. (d/b/a Billtrust), a Delaware corporation (“Legacy BT”), and/or SMMC;
WHEREAS, pursuant to that certain Business Combination Agreement, dated as of October [•], 2020 (as it may be amended, supplemented, restated or otherwise modified from time to time, the “Business Combination Agreement”), (i) First Merger Sub will merge with and into Legacy BT (the “First Merger”), with Legacy BT surviving the First Merger as a wholly owned subsidiary (the “Initial Surviving Corporation”) of SMMC, (ii) following consummation of the First Merger, the Initial Surviving Corporation will merge with and into Second Merger Sub (the “Second Merger” and together with the First Merger, the “Mergers”), with Second Merger Sub being the surviving entity of the Second Merger (the “Surviving Entity”), (iii) by virtue of the Mergers, former stockholders of Legacy BT will receive newly issued shares of Common Stock (as defined below) and/or cash and (iv) following the consummation of the Mergers, SMMC will be renamed “[Billtrust]”;
WHEREAS, South Mountain LLC, a Delaware limited liability company (“Sponsor”) and a party hereto, is also executing the Stockholders Agreement on the date hereof; and
WHEREAS, in connection with the Mergers and effective upon the consummation thereof, the parties hereto wish to set forth herein certain understandings among such parties with respect to confidentiality and restrictions on transfer of equity interests in SMMC.
NOW, THEREFORE, the parties agree as follows:
1.1 Defined Terms. In addition to the terms defined elsewhere herein, the following terms have the following meanings when used herein with initial capital letters:
“Action” has the meaning set forth in Section 4.8.
“Agreement” means this Confidentiality and Lockup Agreement, as the same may be amended, supplemented, restated or otherwise modified from time to time in accordance with the terms hereof.
“Business Combination Agreement” has the meaning set forth in the Background.
“Common Stock” means the Class A Common Stock, par value $0.0001 per share, of SMMC, following the consummation of the Second Merger.
“Company” has the meaning set forth in the Background.
“Confidential Information” means any information concerning SMMC, Legacy BT or the Surviving Entity or their respective Subsidiaries that is furnished after the date of this Agreement by or on behalf of SMMC, Legacy BT or the Surviving Entity or their respective designated representatives to a Stockholder Party or its designated representatives, together with any notes, analyses, reports, models, compilations, studies, documents, records or extracts thereof containing, based upon or derived from such information, in whole or in part; provided, however, that Confidential Information does not include information:
(i) that is generally known to the public at the time of disclosure or becomes generally known without violation of this Agreement by the receiving Stockholder Party or its designated representatives;